M.P. Jain and S.N. Jain: Principles of Administrative Law (Set of 2 Volumes) [1, 7 ed.] 8180387100, 9788180387104

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M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER I INTRODUCTORY

CHAPTER I INTRODUCTORY 1. EXPANSION OF ADMINISTRATIVE LAW Administrative law has been characterised as the most "outstanding legal development of the twentieth century."1 It does not mean, however, that there was no Administrative Law in any country before the twentieth century. Being related to public administration, Administrative Law should be deemed to have been in existence in some form or another in every country having some form of government. It is as ancient as the administration itself as it is a concomitant of organised administration. As has been stated by a scholar: "Since administrative law is the law that governs, and is applied by, the executive branch of government, it must be as old as that branch."2 In India itself, Administrative Law can be traced back to the well organised and centralised Administration under the Mauryas and the Guptas,3 several centuries before the Christ, following through the administrative system of the Mughals to the Administration under the East India Company, the precursor of the modern administrative system.4 What the opening statement, therefore, signifies is that Administrative Law has grown and developed tremendously, in quantity, quality and relative significance, in the twentieth century; that it has become more articulate and definitive as a system in democratic countries; that it has assumed a more recognisable form in the present century so much so that it has come to be identified as a branch of public law by itself, distinct and separate from Constitutional Law,5 a fit and proper subject-matter of independent study and investigation in its own right. Problems of Administrative Law are presently raised in a large number of Court cases. This shows the topical significance of Administrative Law at present. The rapid growth of Administrative Law in modern times is the direct result of the tremendous growth of administrative powers and functions. This development can partly be attributed to the critical international and internal situation creating a sense of insecurity which compels the government to acquire vast powers to provide for the defence and internal security of the country. For example, in India, the National Security Act, 1980 (NSA)6 confers vast discretionary powers on the Administration to interfere with the personal freedom of the people. This Act provides for preventive detention on several grounds, viz., defence of India, security of a state, public order, maintenance of supplies and services essential to the community. But, mainly, the growth of Administrative Law is to be attributed to a change of philosophy as to the role and function of the state. The ruling political gospel of the nineteenth century was laissez faire which manifested itself in the theories of individualism, individual enterprise, and self-help.7 This philosophy envisaged minimum government control, maximum free enterprise and contractual freedom. The state was characterised as the "law and order" state and its role was conceived to be negative as its interest extended primarily to a few activities only, e.g., defending the country from external aggression, maintaining law and order within the country, dispensing justice to its subjects and collecting a few taxes to finance these activities. It was an era of free enterprise and minimum governmental responsibility and functions. The management of social and economic life was not regarded as the government responsibility. But the laissez faire doctrine resulted in human misery. It came to be realised that the bargaining position of every person in the society was not equal, and uncontrolled contractual freedom led to exploitation of the weaker by the stronger, e.g., of the labour by the management in industries. On the one hand, there existed slums, unhealthy and dangerous conditions of work, child labour, widespread poverty, and exploitation of masses, but, on the other hand, concentration of wealth in a few hands became the order of the day. It came to be realised that the state should take active interest in ameliorating the conditions of the poor. This approach led to the demise of laissez faire and the growth of the new political dogma of "collectivism" which favoured state intervention in, and social control and regulation of, individual enterprise.8 The state started to

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act in the interests of social justice; it assumed a "positive" role. In course of time, out of the dogma of collectivism emerged the concept of the "social welfare state" which lays emphasis on the role of the state as a vehicle of socio-economic regeneration and welfare of the people.9 As Maclver observes:10 "Thus the economic individualism of laissez faire, itself born of changing needs, could not withstand the demonstration of its inadequacy which the age afforded. Its doctrine of free competition gave even to the name of freedom a sinister as well as an unreal sound. It came to appear that the unequal are never free and that without protective laws the free are only the strong. Against such a destroying freedom man appealed again to the state, and the brief age of laissez faire passed with its prophets."

This trend may be illustrated very forcefully by referring to the position in India. Before 1947, British India was a police state. The ruling foreign power was primarily interested in strengthening its own domination; the administrative machinery was used primarily with that object in view and the civil service came to be characterised as the "steel frame". The state did not concern itself much with the welfare of the people. But this scenario changed with the advent of independence in 1947. A conscious effort then began to be made to transform the country into a welfare state. The philosophy of welfare state has been expressly ingrained in the Indian Constitution. According to the preamble, the Constitution aims at establishing a sovereign socialist secular democratic republic in India so as to secure to all its citizens, inter alia, social, economic and political justice.11 According to Art. 38 of the Directive Principles of State Policy,12 the state is obligated to strive to secure a social order in which social, economic and political justice shall inform all the institutions of national life. The state is required to direct its policy towards securing that the citizens have equal right to an adequate means of livelihood; that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; that there is no concentration of wealth and means of production to the common detriment; and that there is equal pay for equal work.13 The state is obligated to provide for education and assistance in old age, in unemployment and in other contingencies.14 The state is to provide for free and compulsory education for children up to the age of fourteen years.15 Further, in interpretation of the law and the Constitution, the judiciary does at times take note of the ideals of a social welfare state even though some of these ideals may not be expressly incorporated in the Constitution.16 The emergence of the social welfare concept has affected all the democracies very profoundly. It has led to state activism. A phenomenal increase in the area of state operations has occurred in the 20th century; the state has taken over a number of functions which were previously left to private enterprise. The state to-day pervades every aspect of human life; it runs buses, railways and postal services; it undertakes planning of social and economic life of the community with a view to raise the living standards of the weaker sections of the people and reduce concentration of wealth; it improves slums, plans urban and rural life, and looks after health, morals and education of the people; it generates electricity, works mines and operates key and important industries. It acts as an active instrument of socio-economic policy, regulates individual life and freedom to a large extent, provides many benefits to its citizens, and imposes social control and regulation over private enterprise. The functions of a modern state may broadly be placed into five categories, viz., the state as protector, provider, entrepreneur, regulator, and arbiter.17 As protector, the state protects the country against external aggression and internal disorder. As provider, the state provides social security, social welfare and a minimum standard of living to all. As regulator, the state regulates and controls various activities of the community. Urban and town planning, environmental control, regulation of economic activities fall under this head. As entrepreneur, the state engages in public enterprise. As an umpire, the state arbitrates between competing social interests in the society. The state has to ensure minimum fairness and maintain a reasonable balance between the different economic and social groups in the community. The state regulation has been taken to such an extent that Maine's classic generalization that the movement of progressive societies has been from status to contract18 has all but been reversed in our day. In many ways, the contemporary societies have reverted more or less to the medieval concept of status.19 The twentieth century has seen a decline in the importance of the institution of contract. Many relations are no longer governed by contract. Government largely allocates resources in the economy and effectively manipulates

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the market, by price contracts, wage controls and other legal and fiscal arrangements. Growth of state activism has inevitably increased the number of situations where relations between the citizen and public authority are governed by public law rather than private law. Consequently, private law is giving place to public law; contract law to administrative law. According to Atiyah:20 ". . . much administrative law now governs exchange relationships of a non-market character, and the distinction between market and non-market relationships ends in a murky grey area where contractual and administrative law ideas struggle for paramountcy". Taking the scene nearer home, the ideal of a social welfare state is sought to be translated into practice through state planning of economic resources and social control of private enterprise with a view to create a socialistic pattern of society which involves improving the economic conditions of the poor, keeping in view the demands of social justice; and all resources of the community are organised and husbanded with that end in view. A large number of government enterprises have thus come into being; some key industries, financial institutions and transport services have been nationalised;21 a rigorous system of state control and regulation of private enterprise has been created;22 the state plays a major role in promoting socio-economic welfare of labour by regulating the employer-employee relationship and by other means;23 increasing provision is being made by the state for social services, such as, education, housing, health, family welfare; the state undertakes to supply food and other essential commodities to the people at reasonable prices. The state has now become a major source of wealth.24 This state activism has led to one inevitable result. In its quest to improve physical, moral and economic welfare of the people, the state has assumed more and more powers to regulate society. Traditionally, the government of a country is divisible into three organs--legislature, judiciary and executive. While increase in state activities has meant increased work for all the organs--the legislature has to enact newer and newer laws to give effect to newer and newer socio-economic schemes, and the Courts have to interpret these laws and adjudicate upon more and more disputes generated by these laws--yet the largest extension in depth and range of functions and powers has taken place at the level of the executive-cum-administrative organ. We have come to live in an administrative age; administrative organ has become predominant and still it is on the ascendancy; its functions and powers have grown vastly over time. Administration is the all-pervading feature of life to-day; the hegemony of the executive is now an accomplished fact. It makes policies, provides leadership to the legislature, executes and administers the law and takes manifold decisions. It exercises to-day not only the traditional functions of administration, but other varied types of functions as well. It exercises legislative power and issues a plethora of rules, bye-laws, and orders of a general nature. This is designated as delegated or subordinate legislation. Delegated legislation has assumed more importance, quantitatively and qualitatively, than even the legislation enacted by the legislature.25 No law enacted by the Legislature is complete and several details need to be filled in through delegated legislation. To-day, not all disputes are decided by the Courts in the traditional manner. The administration has acquired powers of adjudication over disputes not only between itself and private individuals but also between private individuals inter se, and thus have emerged a plethora of tribunals, apart from other innumerable adjudicative bodies, diversified in structure, jurisdiction, procedures and powers, connected with the administration in varying degrees and pronouncing binding decisions like the courts whose powers have been diluted or excluded in several areas.26 The Administration has secured extensive powers to grant, refuse or revoke licences, impose sanctions and take action of various kinds in its discretion or subjective satisfaction.27 To enable the Administration to discharge effectively its rule-making, adjudication and other discretionary and regulatory functions, it has been given vast powers of inquiry, inspection, investigation, search and seizure, and supervision.28 The administrative machinery has vastly proliferated. The administrative organs are variously designated as departments, directorates, boards, commissions, authorities, bureaus, officers, tribunals, public corporations, government companies etc.. The truth is that in modern democratic societies, the administration has .acquired an immense accession of power and has come to discharge functions which are varied and multifarious in scope, nature and ambit. In the Words of Robson, the hegemony of the executive is now an accomplished fact.29 Extension in functions and powers of the Administration has become a desideratum as most of the contemporary complex socio-economic problems can be tackled best, from a practical point of view, only by administrative process instead of the normal legislative or judicial process. A legislative body is best suited to determining the direction of major policy but it lacks time, technique and expertise to handle the mass of

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details. The legislature has to content itself more and more with laying down broad policies and leaving the rest to the Administration, and thus has arisen the practice of delegated legislation. Administrative adjudication has arisen largely because the multitude of cases arising for adjudication under the modern legislation need to be decided expeditiously with the least formality and technicality, at less cost, and by persons having specialised skills to handle such cases. The courts are not in a position to fulfil these conditions and so the administrative tribunals have come into vogue.30 Reliance has come to be placed in the administrative process as it is felt that the complex problems of to-day can best be solved that way. Administrative process is comparatively flexible, less formal, and expeditious and hence the proliferation of administrative process. Another advantage of the administrative process is that it could evolve new techniques, processes and instrumentalities, and acquire expertise and specialisation, to meet and handle new complex problems of modern society. Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied. Even a well-tested rule may have to be changed because of the rapidly changing situation in a developing or a developed society. The Administration can change an unsuitable rule without much delay. Even if it is dealing with a problem case by case (as does a Court), it could change its approach according to the exigency of the situation and the demands of justice. Such a flexibility of approach is not possible in the case of the legislative or the judicial process. Again the judicial process in which decisions are made after hearing and on the basis of evidence on record is not suited to deciding matters involving wide discretion to be exercised on the basis of particular departmental policy, position of finance, priorities and allocations between competing claims. In many cases, preventive administrative action may prove to be more effective and useful than punishing a person later for a breach of law. Thus, inspection and grading by the state would answer the consumer's needs more adequately than prosecuting the seller for adulteration later after the injury has been done to the consumer by unwholesome food. All this has resulted in a proliferation of bureaucracy and administrative process.31 Administration has assumed such an extensive, sprawling and varied character, that it is not now easy to define the term "Administration" or to evolve a general norm to identify an administrative body. It does not suffice to say that an administrative body is one which administers, for the administration does not only put the law into effect, but does much more than that; it legislates and adjudicates. At times, Administration is explained in a negative manner by saying that what does not fall within the purview of the legislature or the judiciary falls within the purview of the Administration. 2. FUNCTION OF ADMINISTRATIVE LAW In such a context, a study of Administrative Law becomes a matter of great significance. The increase in administrative functions has created a vast new complex of relations between the administration and the citizen. The modern administration impinges more and more on the individual. It has assumed a tremendous capacity to affect the rights and liberties of the people. There is not a moment of a person's existence when he is not in contact with the Administration in one way or the other. While development of administrative process is inevitable in modern times, it also creates the concomitant problems of infringement of the rights of the individual unduly, of misuse of power by the Administration. This circumstance poses a basic and critical question for administrative lawyers, viz.: how to control administrative power? It thus poses the eternal problem of devising proper safeguards subject to which bureaucracy must exercise its powers. A host of questions thus arise. Does arming the Administration with more and more powers keep in view the interests of the individual? Are adequate precautions being taken to ensure that the Administration does not misuse or abuse its powers? Do the administrative agencies follow in discharging their functions such procedures as are reasonable, consistent with the rule of law, democratic values and natural justice? Has adequate control-mechanism been developed so as to ensure that the administrative powers are kept within the bounds of law, and that it would not act as a power-drunk creature, but would act only after informing its own mind, weighing carefully the various issues involved and balancing the individual's interest against the needs of social control? It has increasingly become important to control the Administration, consistent with

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efficiency, in such a way that it does not interfere with impunity with the rights of the individual. There is an old adage containing a lot of truth that power corrupts and absolute power corrupts absolutely. Between individual liberty and government, there is an age-old conflict. As Locke said in the 17th century: "Wherever law ends, tyranny begins." There thus arises the need for constantly adjusting the relationship between the government and the governed so that a proper balance may be evolved between private interest and public interest. It is the demand of prudence that when sweeping powers are conferred on administrative organs, effective control-mechanism be also evolved so as to ensure that the officers do not use their powers in an undue manner or for an unwarranted purpose. It is the task of Administrative Law to ensure that the governmental functions are exercised according to law, on proper legal principles and according to rules of reason and justice; that adequate control-mechanism, judicial and others, exist to check administrative abuses without unduly hampering the Administration in the discharge of its functions efficiently. Thus, the objectives of Administrative Law are to ensure legal control of the administrative power and to provide protection to the individual against abuse of such power. It is the basic philosophy of Administrative Law that the Administration must have lawful authority to do what it seeks to do. "The powerful engines of authority must be prevented from running amok."32 Administrative Law seeks to adjust the relationship between public power and individual rights.33 Administrative Law is the best designation for the system of legal principles which settle the conflicting claims of executive and administrative authority on the one side and of individual or private right on the other.34 It is the function of Administrative Law, in a democratic society, to draw a fine balance between the conflicting claims of the individual and the Administration. Of course, in securing this balance, the needs of efficient administration are to be duly taken note of. But efficiency of administration though desirable cannot be the only yard-stick of good administration. Fairness to the individual concerned is also a value to be achieved along with efficient administration. A fair administration is really good administration. As the Kerr Committee in Australia has emphasized: "... although administrative efficiency is a dominant objective of the administrative process, nevertheless the achievement of that objective should be consistent with the attainment of justice to the individual."35 Schwartz describes the function of Administrative Law in a different way. In an Administrative Law case, the private party is confronted by an agency of government endowed by all the power, prestige and resources enjoyed by the possessor of sovereignty. "The starting point is the basic inequality of the parties. The goal of administrative law is to redress this inequality-to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice."36 In reality there is no antithesis between a strong government and controlling the exercise of administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people. While the Administration has the capacity to do a lot of good to the people, it also has the capacity to do a lot of damage to the rights and interests of the individuals. As Justice Douglas of the U.S. Supreme Court once said: "Absolute discretion, like corruption, marks the beginning of the end of liberty."37 Maladministration results in weakening and not in strengthening the government as people get alienated from it. Thus, it becomes necessary to ensure that powers are exercised properly and for the purposes for which these are conferred. Administrative efficiency cannot be the end-all of administrative powers. There is also the question of protecting individual's rights against bad administration. It is necessary to have good administration, and a fair administration will lead to good administration. A democracy will be no better than a mere facade if the rights of the people are infringed with impunity without affording them proper redressal mechanism. An important function of Administrative Law is to ensure that when the Administration oversteps its authority or acts unlawfully, the citizen should have an effective remedy at his disposal. The need for a proper system of Administrative Law is no less urgent in a parliamentary system of government. Here the legislative control over the Administration is not very effective because the party system gives to the government of the day a tremendous hold over the legislature.38 Therefore, parliamentary control needs to be supplemented by additional control mechanism. In addition, there is the question of widespread bureaucratic corruption.39 Broad and uncontrolled discretionary powers conferred on administrators have inherent seeds of corruption for, in the absence of guiding norms to regulate the exercise of such powers and an effective supervisory mechanism, there may be no way to assess whether a particular decision arrived at by an administrator is bona fide or is motivated by some corrupt consideration. It will be extremely difficult, if not impossible, to contain corruption in a country where uncontrolled powers are conferred on administrators.40 A proper system of Administrative Law may help in averting this danger to a great extent.

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This makes the study of Administrative Law important in every country. For India, however, it is of special significance because of the proclaimed objective of the Indian polity to build up a welfare and egalitarian society. This has generated administrative process, and hence administrative law, on a large scale. Administration in India is bound to multiply further and at a quick pace. A strong desire for rapid development has its own dangers and pitfalls. A country in which the roots of democracy are not very deep, a strong bureaucracy may have the tendency to ride rough-shod over the rights of the people. If exercised properly, the vast powers of the Administration may lead to a welfare state; but, if abused, they may lead to administrative despotism and a totalitarian state.41 A careful and systematic study and development of Administrative Law becomes a desideratum as Administrative Law is an instrument of control of the exercise of administrative powers. 3. DEFINITION, NATURE AND SCOPE OF ADMINISTRATIVE LAW It is difficult to evolve a satisfactory definition of Administrative Law so as to demarcate articulately its nature, scope and content. There are many formulations in the field, but none of them is completely satisfactory; either they are too broad or too narrow; either they include much more than what properly should be included within the scope of the subject, or else, they leave out some essential aspects or elements of Administrative Law. The American approach to Administrative Law is denoted by the definition of Administrative Law as propounded by the leading scholar, Kenneth Culp Davis. According to him, Administrative Law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. It does not include the enormous mass of substantive law produced by the agencies. An administrative agency, according to him, is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rule-making. Davis goes on to observe further: "Apart from judicial review, the manner in which public officers handle business unrelated to adjudication or rule-making is not a part of administrative law; this means that much of what political scientists call "public administration" is excluded.42 He says that emphasis of Administrative Law is on administrative process--procedures for formal adjudication and for rule-making. It also studies such incidental matters as investigating, supervising, prosecuting, negotiating, settling, or informally acting. The difficulty in this formulation of Administrative Law is that, on the face of it, it does not include the consideration of purely discretionary functions (which may be called administrative) not falling within the category of legislative or quasi-judicial. In modern Administrative Law, discretionary administrative functions are vast in scope and range. The control-mechanism of these functions constitutes an important subject for study in modern Administrative Law. In the U.S.A., some of these functions are included under the two categories mentioned above. In the U.S.A., the term 'adjudication' is given a very broad connotation. 'Adjudication', according to Davis, includes "all that goes into the decision of a case, including policy making and administrative functions." The main reason for the lack of distinction between 'adjudicative' and 'administrative' functions arises because of the 'due process of law' concept contained in the V and XIV Amendments of the Constitution. Thus, an 'administrative' power becomes 'adjudicative' as 'fair hearing' is a must in most of the situations.43 Nor does the above formulation of an administrative agency appear to be exhaustive as it seeks to exclude agencies having administrative authority pure and simple not having adjudicative or legislative functions.44 Further, the emphasis in the definition is on judicial control of administrative agencies. But other control mechanisms, like the parliamentary control of delegated legislation, control through administrative appeals, and through the ombudsman type institution, are quite important and significant and need to be studied for a fuller comprehension of Administrative Law. In England, Dicey defined Administrative Law as denoting that portion of a nation's legal system which determines the legal status and liabilities of all state officials, which defines the rights and liabilities of private individuals in their dealings with public officials, and which specifies the procedure by which those rights and liabilities are enforced.45 This definition is narrow and restrictive in so far as it leaves out of consideration many aspects of Administrative Law, e.g., it excludes many administrative authorities which, strictly speaking, are not officials of the state such as public corporations; it also excludes procedures of

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administrative authorities, or their various powers and functions, or their control by Parliament or in other ways. Dicey's for-mulation refers primarily to one aspect of Administrative Law, i.e., judicial control of public officials. Dicey formulated his definition with the droit administratif in view. Dicey's main concern was judicial remedies against the Administration and so he gave a restricted interpretation to Administrative Law.46 The modern British approach to Administrative Law is depicted by the following definition formulated by Sir Ivor Jennings: "Administrative law is the law relating to the Administration. It determines the organisation, powers and duties of administrative authorities."47 This is the most commonly accepted view and has been adopted with slight verbal changes, by many leading British scholars of to-day. For example, Wade and Phillips define Administrative Law much on similar lines: "Administrative law is a branch of public law which is concerned with the composition, powers, duties, rights and liabilities of the various organs of government which are engaged in administration".48 Jennings' definition is fuller in one respect as compared to that of Davis; it includes "administrative powers" which Davis seems to include within the two headings of legislation and adjudication, but does not mention them separately as such. In one respect, however, Jennings' definition falls short of Davis' formulation. While Davis lays emphasis on procedures used by administrative agencies in exercising their powers, Jennings does not mention administrative procedures directly and specifically; he only leaves them to be implied from such broad words as "organisation, powers and duties," and this appears to constitute a basic difference between the present-day American and the English approaches to Administrative Law.49 Until recently there appeared a basic difference in the approaches of the American and the English Administrative lawyers. The English Administrative Law did not lay so much emphasis on procedures of administrative bodies as did the American Administrative Law.50 This feeling led to the enactment of the Federal Administrative Procedure Act in 1946 in the U.S.A.51 This Act lays down minimum procedures which the American administrative agencies are required to follows.52 Similar legislation has been enacted in a number of States. It is, however, necessary to underline the importance of procedures in Administrative Law. In a democratic set-up, administrative procedures have to be democratic; the affected interest groups should get a participation not only in the policy-making but even in the administration of policies. The current thinking is that procedures have great significance in Administrative Law because proper procedures are necessary for proper discharge of administrative powers and that it is in the area of procedures that safeguards can be incorporated for the individual against the administrative process with any success rather than seeking to control administrative power through other means. Evolution of fair procedures is thus necessary to minimise the abuse of administrative powers. Therefore, the basic question at the present time is: how can the legal ideas of fair procedure and just decision be infused into the exercise of administrative powers by the state and its instrumentalities? This approach promises greater success than the attempt to control the administration through the courts. It is this realisation which has led the American administrative lawyers to place emphasis upon procedural safeguards to ensure a proper exercise of the administrative power. Lately, thinking in England has also started along these lines as is evidenced by the fact that the Franks Committee investigated rather elaborately into the working of various tribunals and quasi-judicial bodies, and as a result thereof, a number of procedural improvements have been effected into the working of the whole system.53 Presently, more attention is being devoted in England to a study of administrative procedure. As a result, some studies devoted to administrative procedures have made their appearance.54 Two other criticisms have been levied against Jennings' definition by Griffith and Street, leading exponents of Administrative Law in England. First, the Jennings' definition does not attempt to distinguish Constitutional Law from Administrative Law, as the former "in its usual meaning has a great deal to say concerning the organisation of administrative authorities." In another sense also, "this is a very wide definition, for the law which determines the powers of these authorities must include, for example, the provisions of Acts relating to public health, housing, town and country planning, the National Coal Board and the personal health services. Indeed, almost every statute affects to some extent the powers and duties of administrative authorities."55 Though Administrative Law may not be concerned with the substantive law as such, yet, as Griffith and Street themselves have somewhat recognised56 a study of substantive law becomes necessary for appreciating the powers of the Administration and for controlling the same. For instance, whether the principles of natural justice are to be observed by an authority or not depends, to a great extent, upon the kind of action it is empowered to take, and to find this, one will need to look into the statute under which it functions.57 Again, whether the authority has abused its power, e.g., it has acted on irrelevant consideration,

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etc.58 has to be decided with reference to the substantive provisions. A limitation, which appears to be necessary to impose on the expression "law of the administration," the phrase used by Jennings in his formulation, is that matters of purely internal administration and management of an administrative agency should be excluded from the purview of the Administrative Law. Such matters as recruitment of staff members by an agency, matters of their leave, promotion, gradation rules, etc. are matters which fall more properly within the area of public administration and not so much within the compass of Administrative Law. The reason is that these matters pertaining to the internal functioning of an administrative agency do not very much impinge on the private citizen in his dealings with the agency concerned.59 But, of course, a study of the general structure of an agency concerned may often become necessary to assess whether the power has been exercised objectively and without bias and by a duly authorized official. Again, how much control-mechanism exists within the department or an agency can be found out only from a study of its structure. A more satisfactory and a proper formulation to define the scope, content and ambit of Administrative Law appears to be as follows: Administrative Law deals with the structure, powers and functions of the organs of administration; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the methods by which their powers are controlled including the legal remedies available to a person against them when his rights are infringed by their operation. This statement has four limbs. The first limb deals with the composition and powers of the organs of administration. This proposition is subject to the qualification stated earlier that the topics falling under the rubric of public administration are to be excluded from a discussion on Administrative Law. The term 'organs of administration' includes all kinds of public or administrative authorities. Vast powers are being conferred on the Administration through legislation. In innumerable cases, the courts have legitimized the conferment of broad powers on administrative authorities. The second limb refers to the limits on the powers of administrative authorities. Just as the Administration needs powers to reach the goals of the modern state, so must the powers be subject to some limitations to develop a balanced administrative system. It is necessary to have safeguards and standards subject to which the Administration must act. Otherwise, there may be maladministration, administrative injustice and undue denial of individual rights. These limits may either be express or implied. The express limits are laid down in statutory norms. The implied limits are derived by the courts by the interpretative process. This is the most significant and creative aspect of Administrative Law as express limits are not usually laid down. The third limb refers to the procedures used in exercising those powers. The study of Administrative Law of to-day seeks to emphasize not only the extraneous control but also the internal processes and procedures which the administrative authorities themselves follow in the exercise of their powers. Evolving of fair procedures is a way of minimising the abuse of vast discretionary powers conferred on the Administration. For example, in the area of delegated legislation, emphasis is being laid on the consultative procedure;60 natural justice forms a significant component of administrative process to-day and in many situations courts apply the concept of "fairness".61 The Supreme Court of India has also underlined the importance of procedures. The Court has observed, 'It is procedural rules which infuse life into substantive rights, which activate them to make them effective.'62 The fourth limb refers to the control of the administration through judicial and other means. Under this head would fall judicial as well as extra-judicial means of controlling the administration, e.g., tribunals, ombudsman, etc. This heading also lays emphasis on redressal_ of individual grievances through the court and other processes. This is a very important aspect of Administrative Law. This aspect of Administrative Law is based on three basic propositions, viz.: (i) power is conferred by law; (ii) no authority can exceed its power; and (iii) no power is absolute and uncontrolled. The control and redressal aspects are the most significant features of Administrative Law. All the three prior limbs in reality converge at this point. In the modern onslaught of an ubiquitous Administration, the individual is affected in many ways in the name of "public good" and "public interest". The individual is in the weakest defensive position against the mighty power of the Administration. It is, therefore, the important function of Administrative Law to ensure that government's powers are exercised according to law, on proper legal principles, according to the rules of reason and justice; and not at the mere caprice or whim of administrative officers, and that the individual has adequate remedies when his rights are infringed by the Administration. There is perennial quest in the

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common law world to achieve this ideal.63 Some of the traditional means of control have been found to be wanting. As for example, the concept of collective responsibility of the Cabinet to the Parliament64 does not provide an adequate safeguard to the citizen for several reasons: (1) the Cabinet enjoys majority support in Parliament; (2) the parliamentary procedures are such that a matter of individual grievance can be raised on the floor of the House with great difficulty; (3) members of Parliament have no access to departmental files and thus have meagre knowledge of day to day administration; (4) ministers do not have control over every detail of administration and departmental officials dispose of large number of cases without any reference to the minister;65 (5) modern party system gives to the government of the day a tremendous hold over the legislature.66 Therefore, it has been found necessary to search for other controls and not depend solely on Parliament for the purpose. Judicial control plays a significant role in keeping the Administration within due limits but even this has several lacunae.67 Thus search for other methods to control the Administration goes on.68 It is well to remember that democracy is sustained not merely by conferring large powers on the Administration but also by devising proper checks and balances subject to which the bureaucratic power is to be exercised. It will become merely a facade democracy if rights and liberties of the people are infringed by the Administration with impunity without affording them any redress. Conferring large powers on the Administration may be justified only if control-mechanism is improved and due administrative procedures are devised. Such an ideal can be achieved by strengthening the remedies and reliefs against the Administration which an individual may invoke when he is adversely affected by a particular administrative action. This is a constant quest and improving the redressal mechanism against the administrative machinery is a dynamic process. Without a well developed system of Administrative Law, democracy will lose much of its true content. From this point of view, there is presently a ferment in the common-law world in the area of Administrative Law and new trends are becoming visible. Many common-law countries have been engaged for some time now in the exercise of improving and reforming their own system of Administrative Law which is in a state of flux at present in the common-law world. Official bodies have been appointed to study and make suggestions for improvement of Administrative Law. Some of the suggestions made by these bodies have been implemented and others are in the process of being implemented. Standing bodies have been created to keep administrative procedures constantly under review and make suggestions to improve them. Such an effort is lacking in India. In India only the courts act as a control mechanism vis-a-vis the Administration. The courts have played a creative role to some extent in this area. The courts have made several landmark pronouncements displaying a law-creative role of a high order. But judicial process has its own limitations. The courts seek to do justice from case to case. Therefore, the emphasis is on deciding individual cases rather than on the creation of general legal principles. In reconciling the public and private rights by and large the courts take a pragmatic view of the matter rather than a theoretical view. As Krishna Lyer, J. emphasized in Gujarat Steel,69 "law is not dogmatics but pragmatics", or as Bhagwati, J. said in Maneka Gandhi70 that law is not logic but experience. Judicial creativity therefore may lead to some outstanding Judicial pronouncements in individual cases but emergence of a systematic, coherent body of legal principles is difficult through judicial process. Legislation may have to be undertaken to achieve such a result. Therefore, it seems time has come when in India also an over-all review of the Administrative Law ought to be undertaken.71

1 Vanderbilt's Introduction to Schwartz, French Administrative Law and the Common Law World, xiii (1954). 2 Parker, The Historic Basis of Administrative Law, 1 Rutg. L.R., 449 (1958). 3 See Shamasastry, Kautilya's Arthasastra, 56-75 (1961); Kane, History of Dharmasastra, Vol. 1, 201 (1968); Jayaswal, Manu and Yajnavalkya, 9, 92-101 (1930). 4 Majumdar, Problems of Public Administration in India, 11 (1952); A.K. Chanda, Indian Administration, 15-42 (1965). 5 For further discussion on this point, see Chapter II, infra. 6 Reference has been made to this Act at several places in the following pages. Besides the NSA, there are two other central

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statutes on preventive detention dealing with economic matters. The Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (Cofeposa, for short) provides for preventive detention on grounds of conservation of foreign exchange and prevention of smuggling of goods. The Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is directed against persons committing acts prejudicial to the maintenance of essential commodities, as defined by the Essential Commodities Act, 1955, to the community. 7 Dicey, Law and Public Opinion in England, 126-210, 212-302 (1962); Jethro Brown, The Underlying Principles of Modern Legislation, 156-280 (1971); Friedmann, Law in a Changing Society, 1-11, 38, 347 (1959). 8 Dicey, Law and Public Opinion in England, at 212-302 (1962). DICEY wrote in 1914 that 'by 1900, the doctrine of laissez faire, in spite of the large element of truth which it contains, had more or less lost its hold upon the English people.' Ibid. at XXXI. 9 Maclver, The Web of Government, 236 (1965); Robson, Justice and Administrative Law, 33 (1951); Prettyman, Nature of Administrative Law, 44 Virginia L.R. 685, 696 (1958); Calvin Woodard, Reality and Social Reform: The Transition from Laissez Faire to the Welfare State, 72 Yale L.J. 286 (1963); Friedmann, The State and the Rule of Law in a Mixed Economy, (1971). 10 Maclver, The Modern State, 460 (1964). 11 Preamble to the Constitution. 12 See, Jain, Indian Constitutional Law, Chapter 29 (1987). Also, Chapter II, infra. 13 Art. 39. 14 Art. 41. 15 Art. 45. 16 Mukherjea, C.J., in Ram Jawaya v. Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123], 533 : 1955 (2) SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]; Crown Aluminium Works v. Workmen, AIR 1958 SC 30 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]: 1958 (1) LLJ 1 : 1958 SCR 651 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]; Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]. These ideals have been put into force in recent years more actively through a string of public interest litigation cases--reference to which has been made in later pages. See, infra, Judicial Control. 17 See Friedman, The State and the Rule of Law in a Mixed Economy 3 (1971). 18 Ancient Law, 170. 19 See, Bernard Schwartz, Crucial Areas in Administrative Law, 34 George Washington L.R. 401 (1966). 20 Atiyah, The Rise and Fall of Freedom of Contract, 717 (1979). 21 Infra, last Chapter. 22 To name only, a few statutes in the area: The Industries (Development and Regulation) Act, 1951;The Essential Commodities Act, 1955; The Foreign Exchange Regulation Act, 1973; The Imports and Exports (Control) Act, 1947; The Companies Act, 1956; The Monopolies and Restrictive Trade Practices Act, 1969; various statutes for regulating specific commodities, e.g., The Tea Act, 1953; The Coffee Act, 1942; The Rubber Act, 1947; The Coir Industry Act, 1953; The Cardamom Act, 1965; and the Tobacco Act, 1975. A huge bureaucratic apparatus has been created to implement these laws and thus a lot of administrative law is created in the process. See, Indian Law Institute, Administrative Process under theEssential Commodities Act, 1955 (a study by M.P. Jain, 1963). For some excerpts from this book, see, Jain, Indian Administrative Law: Cases & Materials (hereinafter cited as Jain, Cases), chapter 1 (1994). Also, Indian Law Institute, Government Regulation of Private Enterprise (1971). 23 Some of the important enactments in this area are: The Industrial Disputes Act, 1947; The Employees State Insurance Act, 1948; The Factories Act, 1948; The Minimum Wages Act, 1948; The Payment of Bonus Act, 1965; The Payment of Wages Act, 1936; and The Workmen's Compensation Act, 1923. 24 CHARLES A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965), and also, The New Property, 73 Yale L.J. 733 (1964). Reich states in the New Property: 'One of the most important developments in the United States during the past decade has been the emergence of government as a major source of wealth. Government is a gigantic syphon. It draws in revenue and power; and pours forth wealth: money, benefits, services, contracts, franchises and licences. Government has always had this function. But while in early times it was minor, today's distribution of largess is on a vast, imperial scale'. The new Property, 73 YALE L.J., at 733. Also see, infra, Government Contracts. 25 Infra, Chapters III, IV and V. 26 Infra, Chapters IX-XIV. For a study of some of these tribunals, see Chapter XIII, infra and S.N. Jain, Administrative Tribunals in India (1977); Jain, Cases, Chapters XII and XIII. Also see, Street, Justice in the Welfare State (1975); J.A. Farmer, Tribunals and Government (1974).

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27 Infra, Chapters XVII, XVIII, XIX. 28 Infra, Chapters XVI. 29 Robson, Justice and Administrative Law. 34 (1951). See also, Ramaswamy, Rule of Law in a Planned Society, 1 J.I.L.I., 31 (1959); HARRY W. Jones, The Rule of Law and the Welfare State, 58 Col LR, 143 (1958). 30 Julius Stone, The Twentieth Century Administrative Explosion and After, (1964) 52 California L.R., 513. 31 For this purpose, see M.P. Jain, Indian Administrative Law : Cases and Materials, Chapter 1. 32 Wade, Administrative Law, 5 (1988). 33 Griffith and Street, Principles of Adnrinistrative Law, 2 (1973). 34 Freund, Cases on Administrative Law, (1911). 35 Commonwealth Administrative Committee, 3 (1971); Wade, Towards Administrative Justice, 11 (1963). 36 Schwartz, Administrative Law, 26 (1976). 37 New York v. United States, 342 U.S. 882, 884. 38 Keeton, The Passing of Parliament, 56-63 (1954); F.A.H. Birch, Representative and Responsible Govt., 137 (1964). For a discussion of the Parliamentary system in India, see, Jain, Indian Constitutional Law, Chapters 2 and 3. 39 See in this connection the observations of Justice IYER in the Fertilizer Corporation case, AIR 1981 SC 344 : 1981 (1) LLJ 193 : (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455]; infra, Vol. II. 40 As Wheare observes in Maladministration and its Remedies, 7 (1973): 'We would also regard as falling within the scope of maladministration actions which were influenced by what is loosely described as bribery and corruption. In most cases this would amount to a form of illegality, but there can be examples where influence may be used to persuade officials either to act or not to act in an area where they have discretion but where, though it might not be clear that illegality was involved, it could be urged that maladministration had occurred.' 41 See, Denning, Freedom under the Law, 126 (1949). 42 Davis, I Administrative Law Treatise, 1-3 (1959); Davis, Administrative Law Cases--Text-Problems, 1 (1977). Schwartz also maintains that 'it is through its exercise of rule-making and adjudicatory authority that the administrative agency is able to determine private rights and obligations': Administrative Law, 7 (1976) . 43 See, Davis, English Adm. Law--An American View, (1962) , Public Law, 139. 44 In the U.S.A., extensive use is made of independent regulatory commissions having powers of administration, legislation, adjudication, regulation, prosecution, investigation etc. Such a body is by and large independent of the government and has power to determine private rights either by rule or decision. American Administrative Law concentrates mostly on such bodies. See, Schwartz, Administrative Law(1976); also, Case-book, 7-20 (1988); Report of U.S. Attorney-General Committee on Administrative Procedure, 7 (1941); Schwartz and Wade, Legal Control of Government, 26 et. seq. (1972) . 45 Law of the Constitution, 329-33 (8th ed.). 46 Infra, next Chapter. 47 Jennings, The Law and the Constitution, 217 (5th ed., 1959). 48 Constitutional Law, 547 (1977). Also see, Wade, Adm. Law, 4-6 (1988). 49 See the criticism by DAVIS of H.W.R. Wade's book on Administrative Law from this angle: English Administrative Law, An American View, 1962 Public Law, 139 Also see, infra, this Chapter. 50 SCHWARTZ says: "The focus to-day is the administrative process itself--upon the procedures which administrative agencies must follow in exercising their powers:" Administrative Law, 3 (1976). 51 For comments on this Act, see infra. 52 Infra, Chapter II. For comments on the Administrative Procedure Act, see, Nathanson, Some Comments on the Administrative Procedure Act, 41, Ill. L.R. 368 (1946-47). 53 See, infra. Also, Jain, Cases, Chapter XII, Sec. B. 54 See, Ganz, Administrative Procedures (1974). It focuses attention on 'non judicial' administrative procedures which regulate an ever increasing area of decision-making by administrative authorities.

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55 Principles of Adminisntrative Law, 3 (1973). 56 Principles of Administrative Law, at 5 (1973). 57 Infra, Chapter IX. 58 Infra, Chapter XIX. 59 In India, however, in a number of cases, problems of Administrative Law have been raised in such matters as appointment, promotion, compulsory retirement, dismissal of employees of administrative bodies. These cases are noted at several places in the following text. This means that the area of public administration beyond the reach of Administrative Law has been shrinking over time. 60 Infra, Chapter VI. 61 Infra, Chapter IX. 62 Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC 287], 1623 : (1980) 4 SCC 162 [LNIND 1980 SC 287] [LNIND 1980 SC 287] [LNIND 1980 SC 287] : 1980 Crlj 1075. 63 Infra, Chapter II. 64 For "collective responsibility", see, M.P. Jain, Indian Constitutional Law, 102. Lord Hailsham has characterised the cabinet system as "elected dictatorship": The Dilemma of Democracy, 107 (1978). 65 Infra, Chapter XXI. 66 Keeton, The Passing of Parliament, 56-63 (1954); also, Jain, Indian Constitutional Law, 106-108. 67 Infra, under Judicial Control. 68 Infra, Chapter II. Also see under Ombudsman, infra. 69 Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]: (1980) 2 SCC 593 : 1980 (1) LLJ 137 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]. 70 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 71 See, infra, next Chapter. For further discussion on this development see, Jain, Changing Face of Administrative Law (1982); Jain, The Evolving Indian Administrative Law (1983). The Law Commission in XIV Report did make some reference to some aspects of Indian Administrative Law.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER II SOME CONSTITUTIONAL PRINCIPLES AND THEIR IMPACT ON ADMINISTRATIVE LAW

CHAPTER II SOME CONSTITUTIONAL PRINCIPLES AND THEIR IMPACT ON ADMINISTRATIVE LAW 1. RELATION BETWEEN CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW There is deep, intimate and abiding relationship between Constitutional Law and Administrative Law. Both are not only inter-related, but belong to one and the same family, one genus, as both are laws governing or regulating the state. Both deal with the powers and functions of the government; the function of both is to diffuse powers of the state and control them. Both are branches of Public Law and both supplement each other. The structure of the constitution of a country vitally affects the character of Administrative Law prevailing there. In any discussion on Administrative Law, there looms large in the background the Constitutional Law of the country which affects the complexion of Administrative Law. For instance, in

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England, certain basic concepts of Constitutional Law, such as, Sovereignty of Parliament, rule of law, ministerial responsibility, prerogatives of the Crown, position of the courts, do permeate and vitally affect the tone and character of Administrative Law. To some extent, the parliamentary system prevailing in India, judicial review and the Fundamental Rights therein, affect the character of the Indian Administrative Law. In the U.S.A., on the other hand, the doctrine of Separation of Powers, Presidential form of government, Fundamental Rights and Judicial Review of administrative action affect the character of Administrative Law. While strict demarcation between Constitutional Law and Administrative Law is not possible, still there exists an essential difference between the two. A practical way to distinguish between the two may be to say that while Constitutional Law deals mainly with the structures, organisation, powers and functions of the three apex organs of the government of a state, viz., the Legislature, Executive and the Judiciary, Administrative Law refers mainly to the operation of the Administration vis-a-vis the individual. Here the concern is much more with the exercise of statutory powers of the administrative authorities rather than with the organisation of the executive organ. The emphasis is more on its powers and functions in so far as these have an impact on the individual. The idea underlying Administrative Law is to evolve some principles for the exercise of powers and functions by the innumerable administrative bodies which are set up in the country to discharge the various and manifold functions which the state has now assumed. Administrative Law also seeks to emphasize upon the means of redress against these bodies in case a person feels aggrieved by any action of any such body. It may be said justifiably that Administrative Law deals with administrative authorities and administration at a lower level, while Constitutional law deals with the three top organs of the state, although some aspects of functioning of these organs are relevant to Administrative Law as well. Administrative law has a more functional bias. To take one simple example, the power of licensing is to-day a very commonly conferred power on administrative bodies. An administrative lawyer is interested in exploring what safeguards can be read into the law subject to which the licensing power is to be exercised when ex facie the law conferring the power prescribes no safeguards.1 Certain topics are discussed under Constitutional Law, and certain other topics under Administrative Law, and there is some common ground between the two. Over time, many developments have occurred in the range and scope of Administrative Law so much so that it has developed an identifiable personality of its own and has developed into a branch of law some what distinct from Constitutional Law, as the contents of this book will show. Administrative Law can no longer be treated as merely an appendage of Constitutional Law. Many topics are discussed under Constitutional Law which are not discussed under Administrative Law and vice versa. But, at the same time, the two act and react to some extent on each other. In a country like India having a written constitution, the scope of Constitutional Law is somewhat definitive and distinguishable from the rest of the legal system. Nevertheless, a student of Indian Administrative Law needs to have a good deal of knowledge of Indian Constitutional Law to better appreciate the nuances of Administrative Law as the Constitution being the fundamental law of the land conditions every law, much more Administrative Law. This will be evident from constant references made in the following text to certain provisions of the Constitution of India. 2. RULE OF LAW The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything must be done according to law. Applied to the powers of Government, this requires that every Government authority which does some act which would otherwise be a wrong (such as taking a man's land), or which infringes a man's liberty (as by refusing him planning permission), must be able to justify its action as authorised by law--and in nearly every case this will mean authroised directly or indirectly by Act of Parliament. Every act of governmental power, i.e. every act which affects the legal rights, duties or liberties of any person, must be shown to have a strictly legal pedigree. The affected person may always resort to the Courts of law, and if the legal pedigree is not found to be perfectly in order the Court will invalidate the act, which he can then safely disregard.2 The concept of Rule of Law has had an abiding impact on the evolution of Administrative Law in the common-law world. DICEY expounded the concept of Rule of Law in relation to the British Constitutional Law. "Rule of Law", said DICEY in 1885, means "the absolute supremacy or predominance of regular law as

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opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government."3 He claimed that Englishmen were ruled by law and law alone; that no man was punishable merely by government's own fiat; he could be punished only for a distinct breach of law established in an ordinary legal manner before ordinary courts. DICEY denied that in England the government was based on exercise by persons in authority of wide, arbitrary or discretionary powers. While in many countries the executive exercised wide discretionary powers and authority, it was not so in England. DICEY asserted that "wherever there is discretion there is room for arbitrariness" which led to insecurity of legal freedom of the citizens. Another significance which DICEY attributed to the concept of Rule of Law was "equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts."4 In England, he maintained, no man was above law; every person whatever be his rank or condition, was subject to ordinary law and amenable to the jurisdiction of the ordinary courts. DICEY vehemently criticised the system of droit administratif prevailing in France. Under that system, there were separate administrative tribunals for deciding cases between the government and the citizens, and the officials, in their official capacity, were protected from the ordinary law of the land and from the jurisdiction of the ordinary courts, and were subject to official law administered by official bodies.5 DICEY characterised the French system as despotic and one designed to protect the guilty administrative officials. He went on to assert that in England there was nothing really corresponding to the "administrative law" or the "administrative tribunals" of France. The idea of having separate bodies to deal with disputes in which government is concerned, and keeping such matters out of purview of the common courts, asserted DICEY, was "utterly unknown to the law of England, and indeed is fundamentally inconsistent with our traditions and customs."6 This thesis of DICEY has had a tremendous impact on the growth of Administrative Law in England where people were not ready till very recently to accept that anything like the Administrative Law had come into being there. But DICEY'S thesis has been criticised by many from many angles. It has been said that even in 1885, DICEY'S postulates were not fully operative in England. DICEY was factually wrong in his analysis of the position in England as he ignored the privileges and immunities enjoyed by the Crown (and thus the whole government) under the cover of the constitutional maxim that the king can do no wrong. DICEY also ignored the many statutes which conferred discretionary powers on the executive which could not be called into question in ordinary courts. He also ignored the growth of administrative tribunals, quite a few of which had come into existence by 1885. Also, he misunderstood and miscomprehended the real nature of the French Droit Administratif. DICEY'S view that droit administratif was devised to give protection to, and confer privileges and arbitrary powers on, government officials and, therefore, it was inferior to the British system of ordinary courts deciding disputes between the citizen and the state,7 has also proved to be wrong and irrational in course of time. The truth is that in many respects, Droit Administratif has been found to be more effective in controlling the Administration and protecting the individual against it than the common-law system. After a careful study of the French system, many scholars have concluded that there the executive is controlled much more effectively than in England, and that a better safeguard against administrative excesses can be found by adopting some kind of an administrative court on the lines of the French model. The real test of a legal system is not whether courts decide all controversies or not, but whether it effectively controls administrative powers and whether it provides an effective redressal mechanism to the individual in case he feels aggrieved by administrative action. From this point of view, Droit Administratif has been found in some respects to stand on a higher footing than the common-law system of Administrative Law.8 DICEY was wrong in asserting that England had no Administrative Law. It is interesting to note that while DICEY was denying the existence of Administrative Law in England, his more perceptive contemporary, Maitland, was already emphasizing at that very time that Administrative Law had emerged in England.9 However, by 1915, after the famous Rice and Arlidge cases,10 DICEY himself came to admit, though reluctantly, that Administrative Law was growing in England as well. He noted that since the beginning of the XXTH century, a large number of duties had been imposed on government through parliamentary legislation which led to acquisition of powers, including judicial and quasi-judicial powers, by the government. The law

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of England was being officialized under the influence of socialistic ideas, said DICEY. He lamented that this transference of functions to government officials which in their nature belonged to the courts "saps the foundation of that rule of law which has been for generations a leading feature of the English constitution." But DICEY accepted its inevitability. Without this, many new functions being undertaken by government could not be discharged by it. DICEY accepted that conferment of judicial or quasi-judicial authority on officials was a "considerable step towards the introduction among us of something like the Droit Administratif of France." But he still maintained that the fact that the ordinary courts could deal with any actual and provable breach of the law committed by an official "still preserves that rule of law which is fatal to the existence of Droit Administratif."11 If DICEY'S formulations regarding the Rule of Law were not fully tenable in England in his own days, they are much less so to-day in England and other contemporary democratic societies based on the common-law system. Since the days of DICEY, things have changed demonstrably. DICEY deprecated Administrative Law as being inconsistent with the Rule of Law, but it has now developed into a fairly well-defined system in every country. Another grave defect in the Dicean analysis has been his characterisation of discretionary powers as being incompatible with the Rule of Law. DICEY insisted on the absence of not only 'arbitrary' but even of 'wide' discretionary powers. But the exigencies of modern government make wide discretionary powers inescapable. Every country has now witnessed the growth of such powers in abundance. Discretionary powers are a fact of modern life; it is not only not possible to do away with such powers but that such powers are indispensable in a modern industrialized welfare state. If, therefore, the Rule of Law negatives discretionary powers, then no modern democratic society has Rule of Law.12 Also DICEY was a great believer in ordinary courts. DICEY exhibited great trust in the efficacy of judicial control as a panacea for all administrative ills. He deprecated creation of tribunals at the cost of ordinary courts as amounting to negation of Rule of Law. But this has been proved to be a wrong assumption; tribunals have now proliferated in every country.13 It has come to be accepted that courts have only a limited efficacy in controlling administrative action. Judicial review is only peripheral in nature and the courts are not in a position to undertake review of administrative action in depth. But the fact remains that DICEY'S misplaced belief that so long as the courts exist, they can control the administration in all its actions, though not a correct assessment of the real situation, did stand in England in the way of adopting more efficacious, but extra-judicial, means of controlling administrative action. DICEY assumed that there should be complete equality between government and officials, on the one hand, and citizens, on the other. But the fact remains that government cannot be placed on an equal footing with the citizens in all respects. Government and its officials do enjoy many powers and privileges under the law which citizens do not. It is fallacious to place government and citizens on the same footing because inequalities between the two "are inherent in the very nature of political society."14 The fact of the matter, therefore, is that either we say that the Rule of Law prevails in no contemporary society or we emphasize upon the basic values inherent in the concept rather than merely on forms and structures. The latter course appears to be a more fruitful and meaningful line of approach in the modern context. In this way, Rule of Law will still have a great utility as a frame of reference, a touchstone, a standard, to test the Administrative Law prevailing in a country and then to orient our efforts to achieve those values and mould the forms and structures accordingly. This can be characterised as the positive side of the concept of Rule of Law. It has given to the common-law countries a philosophy to curb governmental powers and to keep the Administration within bounds. DICEY'S main emphasis in substance, on the whole, in his enunciation of Rule of Law is on the absence of arbitrary power, equality before law, and legal protection to certain basic human rights. Seen in this light the concept of Rule of Law can be of great relevance to contemporary society as it can be a potent instrument in the hands of administrative lawyers advocate to evaluate the country's Administrative Law and to strive for its improvement and reform so as to accord with these values. Rule of Law can be used to spell out many propositions and deductions to restrain an undue increase in administrative powers and to create controls over it. In many inquiries in common-law countries into various aspects of Administrative Law, Rule of Law has been invoked for this purpose. Rule of Law may become a potent tool in the hands of administrative lawyers to advocate reform of Administrative Law. Holdsworth emphasizes the importance of Rule of Law in so far as it means that courts can see that administrative officials do not exceed their powers and that the rights of the citizens are determined in accordance with law. Ousting court's jurisdiction and giving of a purely administrative discretion abrogates

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Rule of Law.15 The first basic value derivable from Rule of Law is that the Administration does not enjoy any power outside the law. Bureaucratic powers are to be confined within legal parameters. Administration does not have any inherent powers of its own so as to affect by its own fiat or decree any individual right. It can enjoy such powers only as emanate or are derived from law. The bureaucracy has to keep itself within the confines of law and it can exercise no power which is not sanctioned by law. This is the cardinal principle operative in a common-law country. This principle plays a vital role in the common-law system of Administrative Law. It leads to the application of the doctrine of ultra vires and judicial control of administrative action. This principle ensures that no one can be deprived of his right, liberty or property without authority of law. Secondly, Rule of Law is associated with the supremacy of the courts. DICEY was a firm believer of judicial control. For him this was basic to rule of law. If judicial power is transferred to some other agency it would be negation of rule of law according to DICEY. This ensures judicial review of administrative action as courts seek to ensure that the Administration does not overstep its legal powers. In the ultimate analysis, therefore, courts should continue to have the power to control administrative action and any overt diminution of that power is to be criticised. Judicial review of administrative action still remains the pivot of Administrative Law in England and other common-law countries including India. But, then, concentration of control power in courts alone is not sufficient. Other control mechanism is also to be thought of, e.g., Ombudsman, tribunal system etc. On the whole, judicial control has been found to be inadequate.16 The real test is how effectively administrative powers are controlled and how effective is the control mechanism. On this view, creation of tribunals ought not to be regarded as inconsistent with the Rule of Law in so far as they are used to control administrative powers and provide quick justice to individuals. Courts still remain the mainstay of control mechanism of the Administration in common-law countries, but they are not in a position to give complete protection to the individual and so other means of control over the Administration have become necessary. No official or functionary should be given a final decision-making power without an appeal or review at a higher level, and in the ultimate analysis court-review should be possible on points of law, and that this power of the courts should not be diluted. Thirdly, distinction should be drawn between arbitrary powers and discretionary powers. Traditionally, Rule of Law denotes absence of arbitrary, irresponsible and uncontrolled powers. This leads to the proposition that officials can have discretionary powers but not arbitrary powers. Therefore, discretionary powers should not be too wide, uncontrolled and unrestrained so as to become arbitrary, but subject to proper safeguards. Efforts are thus to be made to restrain an undue expansion of such powers and create proper controls over them. What is pertinent to-day is not complete absence of discretionary powers but proper safeguards against their abuse or misuse. Fourthly, Administrative Law seeks to explore limitations on administrative power. In many situations there are implied limitations, over and above what may be imposed by law. From this point of view, Administrative Law is not to be regarded as retarding, but instead promoting, the Rule of Law in so far as it discourages arbitrary powers, seeks to draw a balance between public power and private interests, provides for a control-mechanism over the Administration and a redressal mechanism when an individual gets hurt by administrative action, and thus ensures exercise of administrative powers in a lawful manner. At the same time, in so far as Administrative Law is able to discourage administrative arbitrariness, ensure an effective control over the bureaucracy which is now endowed with extensive powers, and is able to provide an effective redressal mechanism to a person who is hurt by any undue bureaucratic action, it may be asserted that Administrative Law does not infringe, but on the other hand, promotes and strengthens the concept of Rule of Law in democratic societies.17 The concept of Rule of law has been invoked by the courts in India as well from time to time not however in the Dicean sense, but as a means to discipline the powers of the Administration and to infuse some values therein. Thus, in Kraipak,18 HEGDE, J., observed: "In a welfare State like ours it is inevitable that the organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its validity if the instrumentalities of the State are not

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charged with the duty of discharging their functions in a fair and just manner."

In A.D.M. Jabalpur v. S. Shukla,19 dissenting Judge KHANNA, J., trying to put a curb on the vast administrative powers during the emergency, invoked the concept of rule of law and stated: "Rule of law is the antithesis of arbitrariness... Rule of Law is now the accepted norm of all civilized societies... Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every State the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the State and compel governments to conform to the law."

KHANNA, J., went on to emphasize that Rule of Law means government under the law, supremacy of law over government as distinct from government by law. It means the mere supremacy of law in society generally which would apply also in totalitarian States. The majority, on the other hand, took the view that Rule of Law argument is "intractable" as Rule of Law cannot override the emergency provisions. As RAY, C.J., said: "Constitution is the rule of law. No one can rise above the rule of law in the Constitution."20 The views expressed by the majority are the extremist positivist arguments. The majority arguments in effect boil down to this: Rule of Law is not available when one needs it most as a protection and shield against arbitrary administrative actions in the name of the emergency. Such extreme arguments do not have much validity in modern democratic societies. The concept of Rule of Law has also been discussed by the Supreme Court Judges in another context in another case, Indira Gandhi v. Raj Narain.21 In India, unlike England, Rule of Law is not a mere abstract concept. It is concretized in Art. 14of the Constitution. Over time, Art. 14 has emerged as a very significant constitutional provision. It has assumed a very activist dimension. Art. 14 guarantees "equality before law" and "equal protection of law" to every person. The courts have derived the concept of Rule of Law from Art. 14 and have invoked it to invalidate any unreasonable, arbitrary or discriminatory administrative action on the premise that such action amounts to denial of equality.22 Reference will be made to Art. 14 at several places in the ensuing text.23 Rule of law should establish a uniform pattern for harmonious existence in a society where every individual should exercise his rights to his best advantage to achieve excellence, subject to the protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands. If the law is to adapt itself to the needs of the changing society, it must be flexible and adaptable. The constitutional objective of socio-economic democracy cannot be realised unless all sections of the society participate in the State power equally irrespective of their caste, community, race, religion and sex. All discriminations in sharing the State power made on these grounds and those discriminations are to be removed by positive measures. The concept of equality, therefore, requires that law should be adaptable to meet equality.24 3. GROWTH OF ADMINISTRATIVE LAW (a) England DICEY'S concept of rule of law did however exert some negative influence on the growth of Administrative Law in England. DICEY'S assertions and assumptions, mentioned above, for long threw a chilly shadow over the growth of Administrative Law in England. Although what DICEY meant to say was that England did not have anything like the French Droit Administratif,25 yet his statements that England had no Administrative Law and that such a law was incompatible with Rule of Law created amongst lawyers a kind of antipathy towards Administrative Law as such. For long, DICEY'S thesis generated a sense of complacency among the English people so that they failed to take notice of the emergence of Administrative Law as such. For long the Englishmen regarded Administrative Law as a 'continental jargon' and were not prepared to accept

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that anything like it was coming into being in their own country as well although, in the meantime, Parliament continued to confer broad powers on the bureaucracy through legislation. Till the middle of the twentieth century, the English legal profession hardly appreciated what Administrative Law was.26 Thus, recognition, identification and study of Administrative Law in England was very much delayed. One result of this complacency has been that Administrative Law as a subject of study came on the scene quite late in the day. Another result of this attitude has been that in England until now development of Administrative Law has been piecemeal, unsystematic and planless and it lacks a coherent corpus.27 Also, DICEY concentrated mainly on remedies and thus confined himself only to a part of Droit Administratif. Droit Adnunistratif, on the other hand, concerns itself with much wider ground. The Continental system concerns itself, apart from remedies and procedures against administrative authorities, with such matters of substance as public law contracts, domains and principles of public ownership, principles of legal responsibility on the part of government and other public authorities. The result of DICEY'S influence has been that the concept of Administrative Law in England still has a very restricted significance. Friedmann states: "By contrast, the almost total failure, in the common law science of administrative law, to regard such matters as the status and powers of public enterprises, the development of public law contracts within the general field of contract, or the borderlines between legal duty and discretion in the conduct of public authorities, still greatly limits the understanding of administrative law in the common law world. Many of the vital problems of public law have to be culled from scattered decisions, standard conditions of government contracts, and other materials found in the case--and textbooks on contracts, tort or property, which, in turn, largely fail to analyse the public problems as such."28 Any way, the fact remains that in spite of the negative effect of DICEY'S assertions, Administrative Law has continued to grow in England in course of time mainly through two channels: (i) judicial creativity and (ii) legislation. As regards the first, in the common law system, the courts play a crucial role in controlling the Administration and, thus, develop the principles of Administrative Law. Till the middle of the 20th century, the role of the English courts in developing a viable system of Administrative Law was very disappointing. By and large, the courts regarded their function as legitimizing the delegation of vast powers to the Administration without paying much heed to safeguards against misuse of powers.29 "This was the period when the courts showed no inclination to indulge in fisticuffs with the Government."30 The administrative lawyers at the time were very dejected and frustrated at the passive way the courts were handling administrative law issues. They were criticizing the judges for their statism, lack of judicial creativity and lack of growth of Administrative Law. They were prodding the judges to show some dynamism, initiative and creativity in handling the problems of Administrative Law which had reached its nadir at the time.31 But when things appeared to be very bleak, a transformation came about in judicial attitude as regards the problems of Administrative Law and the judges started playing a creative and dynamic role. The new phase was initiated with the famous Ridge case in 1963.32 Since then a qualitative metamorphosis has come over the judicial process in England and other common-law countries as regards the development of Administrative Law.33 The courts have rendered a yeoman service in shaping and moulding Administrative Law and convert it into a sophisticated system of rules to regulate administrative behaviour and to discourage arbitrariness and lawlessness on the part of the Administration. The courts have played a very dynamic, creative and constructive role in developing the corpus of Administrative Law. The following pages will bear ample testimony to this new judicial trend. Many principles to regulate administrative behaviour have been evolved by the courts over a period of time in a number of landmark decisions. The last thirty years have been very significant from the point of view of the courts' contribution to the development of Administrative Law so much so that the British courts do now acknowledge that England has come to have a system of Administrative Law. Lord DENNING said in Breen v. A.E.U.34, "It may now truly be said that we have a developed system of Administrative Law." And things have changed a great deal since that observation was made.35 As regards the second channel of development, a realization has been dawning_ for some time now on enlightened governments in the common-law world that the task of developing Administrative Law cannot be left to the courts alone and that principles of Administrative Law need to be developed further than what the courts alone can achieve; there is need to establish certain institutions to oversee the bureaucracy beyond, and in addition to, the courts. This realization has led to some interesting developments recently in the area of Administrative Law. Several statutes have now been enacted for the purpose in several common-law

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countries.36 As regards England, DICEY'S thesis regarding rule of law could not retard the process of Parliament conferring powers on the Administration. A time came when perceptive persons in society could no longer ignore the growth of bureaucratic powers and had to take note of this phenomena. Accordingly, the first significant step towards articulation and systematisation of some aspects of Administrative Law was taken in 1929. Alarmed by the large scale assumption of power by the executive, Lord HEWART in 1929 in his book The New Despotism made a scathing attack on the expansion of administrative powers of legislation and adjudication, and warned that vast opportunities had come to exist for misuse of powers by officials. He warned that bureaucracy had become the true rulers of the country. This led the Government to appoint in 1929 the Committee on Ministers' Powers (also known as the Donoughmore Committee after the name of its Chairman), to consider the powers exercised by the Administration by way of--(a) delegated legislation, and (b) judicial or quasi-judicial decision, and to report "what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law." In the words of Carr, the questions posed for Committee were whether Britain had gone off the "DICEY standard" and, if so, what was the quickest way back.37 In its report submitted in 1932, the Committee found nothing fundamentally wrong in the developments which were taking place. Nevertheless, it accepted that there were opportunities for the Administration to misuse its powers. Accordingly, it made a number of suggestions to improve the control and supervisory mechanism. The report of the Committee called attention to three main defects in the existing system of Administrative Law, viz., (1) the inadequate provision made for publication and control of delegated legislation; (2) the lacuna in the law caused by the inability of a subject to sue the Crown in tort; and (3) the extent to which the control and supervision of administrative decisions were passing out of the hands of the courts and were being entrusted by Parliament to specialist tribunals and enquiries. This led to the appointment of a Committee on Statutory Instruments in 1944 in the House of Commons to oversee legislation by the Administration, and also to the enactment of the Statutory Instruments Act, 1946, to tidy up, to some extent, matters relating to, and improve parliamentary control on, delegated legislation. This Act has been characterised as purporting to enact a "comprehensive procedural code for the making of subordinate legislation."38 This Act formulates rules for publication of statutory instruments and also regulates the laying procedure before Parliament. The report of the Donoughmore Committee represents the first attempt made in England at systematisation of Administrative Law. In 1947, the Crown Proceedings Act was enacted to liberalise the law relating to civil proceedings against the Government and making it liable to be used in the courts and pay damages for contractual and tortious liabilities.39 Then occurred the Crichel Down Affair.40 The Air Ministry compulsorily purchased a piece of land for use as a bombing range during the war. After the war the original owner wanted to repurchase the land as it was no longer required by the Air Ministry, but it transferred the land to the Ministry of Agriculture for use as a model farm. The claim of the original owner was handled by various officials with too little care and consideration and this was considered as bad administration. The affair led not only to the resignation of the Minister of Agriculture, but also the appointment of the Franks Committee to look into the system of adjudication by the Administration. The Committee known as the Committee on Administrative Tribunals and Enquiries was appointed in 1955 and it gave its report in 1957.41 As a result of the Committee's findings and recommendations, several procedural improvements have been effectuated in the working of the tribunals and inquiries in England. The Tribunals and Inquiries Act was enacted in 1958. Many procedural improvements were made in the tribunal system; judicial review over tribunals was strengthened; the Council on Tribunals was appointed to supervise the working of the tribunals and to seek to improve their procedures.42 Till 1958, the areas of delegated legislation and administrative adjudication had been investigated and some reforms introduced therein, but the area of the other administrative powers had not been touched so far. This task was performed by Justice, the English wing of the International Commission of Jurists, which published a report in 1961 (known as the Whyatt Report) suggesting the appointment of an ombudsman in England.43 In 1967, England adopted the ombudsman system as it was felt that the judicial control of administrative powers was inadequate and that it needed to be supplemented by other institutional arrangements.44 Justice released another report in 1971 suggesting several reforms in exercising discretionary powers.45 One of the

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suggestions made was the setting up of an administrative division in the High Court.46 In spite of these developments, there was a feeling that the growth of Administrative Law in England had been piecemeal and unsystematic and that there was need to reform this law further. It was felt that what was needed was a "comprehensive and coherent system of administrative law." To achieve this goal, the Law Commission in 1969 proposed to the Lord CHANCELLOR that a comprehensive inquiry be held into Administrative Law. The Commission felt that in spite of notable developments and clarifications which the courts had brought about there remained "a need to consider to what extent the courts would be assisted by a legislative framework of principles more systematic and comprehensive than has so far been evolved by case-law." But the proposed inquiry did not materialise as the Lord CHANCELLOR took the view that it was premature and that the "right time" for such an inquiry had not yet arrived.47 However, the Commission did undertake a limited inquiry into one significant sector of Administrative Law, viz., Legal Remedies, and its report was released in 1976.48 The Commission's basic recommendation was that under cover of "an application for judicial review," a litigant should be able to obtain any of the prerogative orders, viz., mandamus, prohibition, certiorari, declaration or injunction. Some of the recommendations made in the report have been implemented. A single procedure, known as "application for judicial review" has now been introduced. The rule of standing has also been liberalised to facilitate invocation of judicial review of administrative action. This has gone a long way to simplify and strengthen judicial review of administrative action in Britain.49 However, much still remains to be done in this area. To channelise ideas for further reform of the British Administrative Law, a joint committee of All Souls College and Justice was set up in 1978. The committee first released a discussion paper in 1981 inviting comments on a number of proposals for reform of Administrative law.50 In 1988, the committee released its report suggesting a number of reforms in Administrative Law of England.51 It appears to be only a matter of time when England may also see some more reforms in the area of Administrative Law. The result of the various developments mentioned above has been that Administrative Law, which was once characterised in England as a "continental jargon" has now become transformed into an identifiable and developed branch of law. (b) Australia Administrative Law is not static. A ferment has been going on at present in the common-law world in the area of Administrative Law as conscious efforts are being made to improve the same. In Australia, a systematic attempt has been made to tackle the problems of Administrative Law. The courts have contributed a lot in this respect but what is being done now is much more than what the courts could have ever achieved. New institutions of control and overseeing administrative functioning are being created and improvements in administrative procedure are being envisaged. What is remarkable is that the Australian Government itself has played an active role and taken active interest in sponsoring these reforms. In 1968, the Attorneygeneral appointed the Administrative Review Committee, known as the Kerr Committee, to make a comprehensive and intensive study of the prevailing system of Administrative Law. The committee reporting in 1971 suggested that the time had come when a general system of Administrative Law should be introduced in Australia and with this object in view it made a number of suggestions. The report led to the appointment of the Bland Committee to review administrative discretions under the Commonwealth Law and to advise the government as regards those discretions in respect of which a review on merits should be provided. Another committee known as the Ellicott Committee, was also appointed to review the prerogative writ procedures. The committee noted that the legal grounds on which remedies could be obtained were "limited and often complicated", and that the law relating to judicial review of administrative action was "technical and complex". The recommendations of the Ellicott Committee were similar to those made in England as regards the institution of the procedure by way of "application for judicial review". This would eliminate the risk of an aggrieved person applying for a wrong remedy. All these studies have resulted in the establishment of several institutions in Australia.52 The Ombundsman has been established by the Ombundsman Act, 1976. The Administrative Appeals Tribunal Act, 1975 has established the Administrative Appeals Tribunal to review a large number of administrative decisions on merits. The creation of the tribunal is a very radical concept. It is a kind of super-tribunal hearing appeals from a wide variety of administrative decisions. An Administrative Review Council has also been set up. This is the Australian counterpart of the British Council on Tribunals but with

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much wider terms of reference. It is to keep under review the classes of administrative decisions which are subject to review by a court, tribunal or any other body. An important function of the Council is to recommend to the minister regarding improving procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner. The Council is thus a kind of standing body to keep a constant review over administrative procedures in Australia. The Administrative Decisions (Judicial Review) Act, 1977, confers on the Federal Court of Australia (a court newly created) a jurisdiction to review federal administrative action. An all-purpose remedy, 'the order of review', has been introduced. A single, liberal test of standing has been introduced, namely, that the applicant be aggrieved Grounds for judicial review have been listed in the Act. Obligation to give reasons has been imposed on the decision makers. A Freedom of Information Act has been enacted.53 These are radical innovations, but more changes are anticipated, e.g., a code of procedure for all federal tribunals is proposed to be enacted. (c) New Zealand New Zealand has not lagged behind in reviewing its system of Administrative Law and making several procedural and institutional improvements therein. A number of steps have been taken to reform Administrative Law during the last few years. It was the first common-law country to adopt the Scandanavian system of Ombudsman as early as in 1962 and this has had tremendous impact in other common-law countries in making the institution acceptable.54 To undertake a systematic review of Administrative Law and to make necessary recommendations for the reform thereof, a standing committee, known as the Public and Administrative Law Reform Committee, was established in 1967. The Committee functioned for several years and made several reports. The Committee claimed for itself the same status as the Council on Tribunals has in England. On the Committee's recommendation, a number of reforms have been introduced in the New Zeland Administrative Law. The most significant innovation is the establishment of an Administrative Division in the Supreme Court to deal with problems of Administrative Law in the country.55 The Division has been created with a view to promote expertise and specialization amongst the Judges of the Division to deal with problems of Administrative Law. If problems of Administrative Law are dealt with by the same Judges over and over again, they will develop an expertise, skill and specialization to deal effectively and creatively with the problems of Administrative Law and it would also make for "consistency of judicial policy and approach". The Division could bring "greater consistency, coherence and authority" in administrative decisions. Appeals from many tribunals lie to this division on law, fact and discretion and it also exercises the jurisdiction of the Supreme Court in Administrative Law.56 New Zealand opted for this innovation in spite of the fact that it had been rejected by the Franks Committee in England. New Zealand has also adopted an additional remedy styled as "application for judicial review". This is in addition to the remedies of prerogative writs, declaration and injunction. On such application, the applicant can get any relief from the court to which he may be entitled in any proceeding for a writ, injunction or declaration or any combination of them. Steps have also been taken to improve the tribunal system as well as the regulation-making powers and procedures. Many other reforms are on the anvil. (d) Canada The Law Reform Commission of Canada is also engaged in studying various problems existing in the Canadian Administrative Law.57 The Commission has prepared several in depth studies of several administrative agencies and made recommendations aimed at making the administrative practices of the agencies fairer, more efficient and effective and ultimately more accountable to the public. It would thus appear from the above that presently in the common-law world, there is wide-spread thinking on how to improve Administrative Law. The influence of DICEY has now worn thin. It has come to be realised that mere court review does not provide an effective control-mechanism over administrative functioning and that to achieve this objective, some features of Droit Administratif need to be incorporated into the common-law system.

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(e) India In India, during the last several years, the courts have played a very creative role in developing principles of Administrative Law.58 These developments are taken note of in the following pages. One salient development which has taken place during the last few years is the proliferation of the tribunal system to adjudicate upon some types of disputes. Parliament has enacted laws to establish a number of tribunals which have taken over some functions from the courts and some from the Administration.59 Earlier, in some States, Lokayukta mechanism (something on the lines of the Ombudsman) was established. Parliament has not so far enacted any such Act in spite of the fact that the proposal to do so was made as early as 1967 by the Administrative Reforms Commission.60 Besides this, nothing much has happened in the area of Indian Administrative Law. A number of problems exist in this law, but the government and the legislature have not evinced much interest in improving the law and in developing mechanism to control administrative authorities. India remains as yet untouched by the innovative developments taking place in other common-law countries. 4. SEPARATION OF POWERS If the Rule of Law as enunciated by DICEY affected the growth of Administrative Law in Britain, the doctrine of 'Separation of Powers' had an intimate impact on the development of Administrative Law in the U.S.A. As Davis points out: "Probably the principal doctrinal barrier to the development of the Administrative Process has been the theory of separation of powers."61 The truth is that while the doctrine of separation has affected the character of the American Administrative Law, the doctrine itself has been affected by the newly emerging trend in favour of Administrative Law. The doctrine of separation of powers, traceable in its modern form to the French political philosopher Montesquieu, emphasizes the mutual exclusiveness of the three organs of government, viz., legislative, executive and judicial. The main underlying idea is that each of these organs should exercise only one type of function. There should not be concentration of all the functions in one organ otherwise it will pose a threat to personal freedom, for, in that case, it can act in an arbitrary manner. It could enact a tyrannical law, execute it in a despotic manner and interpret it in an arbitrary manner without any external control. The doctrine therefore emphasizes that the legislature should be confined to legislative function only and it should have no executive or judicial function to discharge; the executive should restrict itself to executive functions and should not exercise any other function and the judiciary should discharge only judicial, and neither executive nor legislative, function.62 The purpose underlying the separation doctrine is to diffuse governmental authority so as to prevent absolutism and guard against tyrannical and arbitrary powers of the state, and to allocate each function to the institution best suited to discharge it. The rationale underlying the doctrine has been that if all power is concentrated in one and the same organ, there would arise the danger of state absolutism endangering the freedoms of the people. The doctrine of separation forms. the basis of the American constitutional structure. Articles I, II and III which delegate and separate powers exemplify the concept of separation of powers. Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court. The form of government, characterised as presidential, is based on the theory of separation between the executive and the legislature. The executive power is vested in the President, the legislative power in the Congress and the judicial power in a hierarchy of courts with the Supreme Court at the apex. The President is both the head of the state as well as its chief executive. He appoints and dismisses other executive officers and thus controls the policies and actions of government departments. The persons in charge of the various departments, designated as the Secretaries of State, hold office at his pleasure, are responsible to him and are more like his personal advisers. The President is not bound to accept the advice of a Secretary and the ultimate decision rests with the President. Neither the President nor any member of the executive is a member of the Congress and a separation is maintained between the legislative and executive organs. This system of government is fundamentally different from the parliamentary system prevailing in many common-law countries, like England, India, Malaysia, Singapore, Australia etc., where the system of government works on the basis of co-ordination between the executive and the legislative organs. The cabinet is collectively responsible to the Parliament and holds office so long as it enjoys the confidence of the

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majority there. In a parliamentary system, while separation is not maintained in legislative-executive relationship, separation of judiciary is regarded as a vital principle.63 On the other hand, the Prime Minister has power to seek dissolution of the Parliament. In the U.S.A., the President is not in theory responsible to Congress. He has a fixed tenure of office and he does not depend on the majority support in the Congress. He stays in office for his entire term. Before the expiry of his term, he can be removed only by the extremely cumbersome process of impeachment. Nor can the President dissolve the Congress. The executive therefore is not in a position to provide any effective leadership to the legislature and it is not always that the Congress accepts the programme and the policy proposed by the executive.64 The independence of the Supreme Court is constitutionally guaranteed. The U.S. Constitution however incorporates some exceptions to the doctrine of separation with a view to introduce the system of checks and balances. For instance, a bill passed by the Congress may be vetoed by the President and, to this extent, the President may be said to be exercising a legislative function. Again, appointment of certain high officials is subject to the approval of the Senate. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions. The Congress continuously probes into executive functioning through its various committees, and also has the power to tax and sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But the Judges of the Supreme Court are appointed by the President with the consent of the Senate. This exercise of some part of the function of one type by an organ of the other type is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ may run amok with its powers and misuse the same. The danger sought to be averted is that an organ having one type of power may exercise it arbitrarily or unwisely if left completely uncontrolled. Administrative Law and the separation doctrine are somewhat incompatible, for modern administrative process envisages mingling of various types of functions at the administrative level. Administrative process arises because new demands are made on the government to solve many complex socio-economic problems of the contemporary society and thus new institutions need to be created and new procedures evolved. Had the doctrine of separation been applied strictly in the U.S.A., the growth of administrative process would have been extremely difficult and modern government might have become impossible. For practical reasons therefore the doctrine of separation has to be diluted somewhat to accommodate the growth of administrative process. Thus, the doctrine of separation has influenced, and has itself been influenced by, the growth of Administrative Law. The American Administrative Law has certain distinctive features which are a product of the separation doctrine. A significant breach in the doctrine occurred when the courts conceded that legislative power could be conferred on administrative authorities, and, thus, the system of delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine with the new institution, the courts laid down that Congress cannot confer an unlimited legislative power on an administrative authority, that the Congress must not give up its position of primary legislator and that the Congress should therefore lay down the policy which the delegate is to follow while' making the rules.65 Thus, the principle has been accepted that the delegating statute must contain a framework within which the administrative-delegate has to operate. If this is not done then the primary legislator, namely, the Congress, abdicates its function to the delegate and this is unconstitutional. This has led to the emergence of the doctrine of Excessive Delegation. Thus, there was double adjustment here; modification of the strict application of the doctrine of separation but, at the same time, the doctrine of separation itself imparting a character of its own to the American Administrative Law. The separation doctrine has also come in the way of the development of legislative supervision over delegated legislation in the U.S.A. through a legislative committee like what has been developed in Britain or India.66 A further encroachment was made on the doctrine of separation when adjudicatory powers came to be conferred on the executive and some administrative tribunals, like the Tax Court, were established. Administrative Justice is expanding in all countries67 and the U.S.A. is no exception to this rule. A far more serious dilution of the separation doctrine occurred when autonomous statutory regulatory commissions endowed with the triple functions, legislative, administrative and adjudicatory, along with powers of

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investigation and prosecution, were established to regulate new areas of activities. Such a body has authority to prescribe generally what shall or shall not be done in a given situation, which is a type of legislative power. It has also authority to determine whether the law has been violated in particular cases and to proceed against the violators, which is a kind of adjudicatory power. The commissions are by and large independent of the Executive.68 The emergence of such bodies has greatly compromised the separation doctrine. As Mr. Justice Jackson points out, the administrative agencies "have become a veritable fourth branch of the government, which has deranged our three branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking."69 For long it was debated whether it was constitutional to have such bodies or not. But as such bodies have now been in existence for long and new bodies are being created from time to time, they have come to be accepted as a fact of modern life and are treated as an integral part of the American Administrative Process.70 American administrative lawyers primarily concentrate their attention on such bodies.71 The Supreme Court has not so far held the vesting of the three types of functions in one body as unconstitutional. With the emergence of such bodies, the view has now come to be advocated that the danger of tyranny or injustice (which the separation doctrine seeks to avoid) lurks in 'unchecked' power not in 'blended' power and, therefore, the more important thing is to have checks and balances. The separation doctrine though not applicable in its strict form to contemporary government, nevertheless, is not entirely redundant. Its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, the following comment about the doctrine in a leading book on American Administrative Law may be noted:72 "Its object is the preservation of political safeguards against the capricious exercise of power; and incidentally, it lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification... the great end of the theory is, by dispersing in some measure the centres of authority, to prevent absolutism."

Accordingly, it has come to be emphasized that while it may be necessary to confer various functions on a regulatory agency, and it may not be possible to separate adjudicatory functions from other functions, nevertheless, efforts must be made to achieve some sort of internal separation of functions within the agency, e.g., adjudicatory function may be separated from the function of investigation and prosecution within the same agency.73 The aim of the separation doctrine is to guard against tyrannical and arbitrary powers of the state. Though, in the face of the complex socioeconomic problems demanding solution in a modern welfare state, it may no longer be possible to apply the separation theory strictly, nevertheless, it has not become completely redundant and its chief value lies in emphasizing that it is essential to develop adequate checks and balances to prevent administrative arbitrariness. Thus, it has been stated about the doctrine: "Its object is the preservation of political safeguards against the capricious exercise of power; and incidentally, it lays down the broad lines of an efficient division of functions. Its logic is the logic of polarity rather than strict classification... the great end of the theory is, by dispersing in some measure the centres of authority, to prevent absolutism."74 By force of circumstances, Administrative Law has inevitably grown in the United States, but the separation doctrine did not generate an attitude of indifference towards it, as happened in England under the spell of the Dicean concept of "rule of law". In the U.S.A., the attitude was that of discussion, examination and criticism of the new development. A constant debate went on on the advisability and propriety of establishing the statutory commissions having multiple powers. Many lawyers criticized the growth of administrative process as doing violence to the purism of the separation doctrine. There was an insistent demand that a full-fledged investigation be carried out into the growth of administrative process, and that due safeguards be devised against abuse of powers by administrative authorities. As a result of this demand, the U.S. Attorney-General appointed a committee in 1939 to review the entire administrative process and to recommend improvements therein. The committee conducted a thorough probe into the administrative procedures followed by the various agencies of the Federal Government and made a report in 1941. The Committee came out with a number of recommendations to reduce the chances of abuse of power. Because of the Second World War no immediate progress could be made to give legal effect to these recommendations, but after sometime the

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most tangible result was the enactment of the Administrative Procedure Act, 1946. The Act is now the foundation of federal Administrative Law in the U.S.A. The Act strengthens hearing procedures. It provides for a sort of hearing in exercising the function of delegated legislation. The Act strengthens provisions for judicial review keeping in view the needs of flexibility and diversity in administrative process. The Act also provides for a sort of separation of functions within the same agency. The Act lays down minimum general principles of a procedural nature to regulate the exercise of powers by all agencies. It is neither a comprehensive nor a detailed code. Its provisions affect and control the procedures of all administrative tribunals and agencies whose decisions affect the person or property of private citizens. The Act "represents a moderate adjustment on the side of fairness to the citizens in the never-ending quest for the proper balance between governmental efficiency and individual freedom."75 The Act seeks to judicialize procedures and extend the scope of judicial review keeping in view the needs of flexibility and diversity in administrative process. The statute represents a compromise between two contending ideas: one, propagated mainly by the legal profession, was to seek to restrain administrative power, provide for greater uniformity and certainty in administrative procedures, and expand the role of the judiciary in controlling the exercise of administrative power. On the other hand was the view of the administrative agencies themselves; they were desirous of retaining flexibility and diversity in the administrative process and they certainly did not favour an expansion of the scope of judicial review. The Act thus contains many compromises and generalities. The Act within its limitations is of great significance for it represents the first legislative attempt in the common-law world to state essential principles of fair administrative procedure. Suggestions have been made in other countries to have a similar statute. For example, the Kerr Committee in 1971 suggested that Australia should have such a statute prescribing minimum procedural standards for all tribunals and also containing provisions dealing with regulation-making power, disclosure of documents, appointment and removal from office of members of tribunals.76 The matter has not however stood still at the 1946 level and search for more effective control over the Administration continues in the U.S.A. An important step was taken in the U.S.A. in 1967 with the enactment of the Freedom of Information Act with a view to move towards open government, and remove secrecy in the functioning of administrative agencies. The Act makes it obligatory for an agency to publish orders, opinions, statements of policy, interpretations, rules of procedure etc. in the Federal Register. The Act also contains the general access principle, viz., all other documents in the possession of agencies are to be made available for inspection or copying by a member of the public unless covered by one of the exceptions. These types of public documents shall be published in the Federal Register and others shall be available for inspection by members of the public. Officials may not withhold documents at their discretion on the ground of protection of public interest. There are also some exceptions laid down in the Act. The Act gives to a citizen a legally enforceable right of access to agency files and documents generally. In case the request to make the records available is refused by an agency, an action can be brought in the district court which has jurisdiction to enjoin the agency from withholding records and, in any such action, the court is to determine the matter de novo and the burden shall be upon the agency to sustain its action. The whole purpose of the Act is to reverse the self-protective attitude of the agencies; disclosure has been made the general rule and only information specifically exempted by the Act may now be withheld. As has been stated by Schwartz and Wade: "The Freedom of Information Act effects a profound change in the position of the citizen vis-a-vis government. No longer is the citizen seeking information from an administrative agency as a mere suppliant."77 Another development is the enactment of the Government in the Sunshine Act, 1976. This Act requires an agency where it consists of a body of two or more members to hold open meetings open to public observation with certain exceptions. A major innovation in the U.S.A. is the creation of a new Agency, the Administrative Conference of the United States. This agency is now responsible for conducting continuous research into the problems of Administrative Law and for initiation of proposals for reform. It has been created by congressional statute enacted in 1964. It is purely a recommendatory body. It makes recommendations to improve the efficiency,

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adequacy and fairness of the legal procedures of federal agencies which affect private rights and obligations through adjudication, rule-making and investigation. The weakness of this body lies however in that it is an unwieldy body having a membership of 83 and it is dominated by government officials. Not less than 60%, but not more than 66-2/3%, of its members have to be government personnel.78 A special feature of the American Administrative Law has been its emphasis on administrative procedure, i.e., imposing procedural requirements on active administration. This American attitude is reflected in Justice Frankfurter's assertion that "the history of liberty has largely been the history of the observance of procedural safeguards".79 Thus, there is emphasis upon procedural safeguards to ensure the proper exercise of administrative authority. Perhaps, the "due process" clause in the U.S. Constitution has something to do with this emphasis on administrative procedure. In this task the judiciary has helped by providing an intellectual leadership and the Congress has taken initiative by way of passing the necessary legislation as mentioned above. On the whole, there has been considerable judicial creativity in the development of American Administrative Law. It needs to be emphasized however that although the separation doctrine has been very much diluted over the years because of the emergence of administrative process, the doctrine at times manifests itself with all its force in judicial decisions. One instance of this is to be found in Buckley v. Valeo,80 where the Supreme Court held a Congressional Act to be unconstitutional because it breached the separation doctrine in so far as the Congress sought to claim the administrative power of making appointments to a federal body, viz. the Federal Election Commission. The Court stated: "The Constitution diffuses power the better to secure liberty", though "a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself."81 Recently, the Supreme Court has applied the separation doctrine in Immigration and Naturalization Service v. Jagdish Rai Chadha.82 Sec. 244(c)(2)of the Immigration and Nationality Act authorizes either House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney-General, to allow a particular deportable alien to remain in the United States. The Attorney-General suspended the deportation order passed on Chadha. Thereafer, the House of Representatives passed a resolution pursuant to S. 244(c)(2) vetoing the suspension. The Immigration judge consequently reopened the proceedings. Chadha moved to terminate the proceedings on the ground that S. 244(c)(2)was unconstitutional. The matter ultimately reached the Supreme Court which ruled that the Congressional veto provision in S. 244(c)(2)was unconstitutional. The Court enunciated the separation doctrine as follows (majority opinion, per BURGER C.J.): "The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted. Although not 'hermetically' sealed from one another, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it."

The Court thus held that the function discharged in the instant case by the House was legislative in nature which would be subject to bicameralism83 and the presentment clauses.84 Since the House was exercising legislative power, it was subject to the standards prescribed in Art. 1. "The provisions of Art. 1 are integral parts of the constitutional design for the separation of powers". "The bicameral requirement, the presentment clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." This pronouncement may have far-reaching repercussions on the fabric of administrative process in the U.S.A., particularly, on the question of Congressional supervision and control over the actions of the

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Administration. Congress confers broad powers on administrative bodies and then imposes veto either by one House or both Houses over the exercise of those powers. It is regarded as an essential check on the expanding powers of the agencies, as they engage in exercising authority delegated by Congress. Over 200 statutes at present impose some kind of legislative veto over these bodies. The constitutional validity of all these statutory provisions has now become problematic in view of the Chadha pronouncement. When the Court declares any legislative or executive action as being violative of the provisions of the Part III of the Constitution, it would be permissible for Legislature or the Executive to remove the defect pointed out by the Court, even retrospectively and the previous action can also be validated. Where there is a mere validation with retrospective effect, without the defect being legislatively removed with retrospective effect, the legislative action will amount to overruling the judgment of the Courts by way of legislative fiat and will be invalid as being contrary to the doctrine of separation of powers.85 5. DROIT ADMINISTRATIF At several places above, reference has been made to Droit Administratif in France which is quite different in conception from the Common-law system of Administrative Law. It is therefore proper to say a few words about it. Droit Administratif is being discussed at this place because it is in itself the product of the doctrine of separation of powers. This doctrine has meant in France that there should be separation between the courts and administrative bodies. In this respect, the separation theory has had a greater imprint in France than in the U.S.A. The separation doctrine in France has resulted in non-interference by the courts in the working of administrative authorities. The most original aspect of the French Administrative Law therefore is the independence of the Administration from judicial control. The ordinary courts exercise no control over administrative functioning. In France, a person has no avenue for redress of grievances against the administration through the courts. This is the important point of deviance between the Droit Administratif and the British or the Common-law system of Administrative Law. Autonomy of the Administration from judicial control does not however mean that it is despotic or is free from all control. Administration has been able to develop its own tribunals to supervise it. It is another characteristic feature of Droit Administratif, viz., that administrative tribunals supervise administrative functioning.86 France has a large number of administrative tribunals, but the most significant of these is the Conseil d'Etat.87 It consists mostly of civil servants who, in theory, can be dismissed by political authorities. Thus, while on the face of it, this body may not seem to be as independent and impartial as an ordinary court, but, as a matter of fact, because of the emergence of certain practices and conventions, the Conseil is very independent in practice. The Conseil is composed of the cream of the French Civil Service. The Conseil D'Etat is an important administrative tribunal. It acts as the court of appeal from all other administrative tribunals. All. tribunals whether specialised or not are subject to the Conseil's control, as all decisions of administrative tribunals are subject to review by the Conseil on points of law. Because the Conseil acts as the central appellate administrative tribunal, it has been possible to secure the unity of Droit Administratif, and also the tribunals in France have come to have a cohesion and autonomy unknown in commonlaw countries where there function many tribunals without any single general administrative appellate tribunal. The Conseil also acts as the court of first instance for cases for recourse pour excess de pouvoir against the decrets of the Administration. To further protect administrative tribunals from interference from the ordinary courts, a separate Tribunal des Conflicts has been established which decides whether a matter should go before the ordinary courts or the tribunals. It has judges and civil servants in equal numbers with the Minister of Justice as the President, but he rarely presides over it. Only when members of the tribunal are equally divided, it may be necessary for him to use his veto. The administrative tribunals have spelled out two principal limitations on administrative bodies. One, these bodies must not act against the law; two, they must pay damages when they cause injuries. If an administrative action is ultra vices, it can be nullified by the tribunal by recours pour excess de pouvoir on an action brought by the affected private citizen. The scope of this action is very broad and it constitutes the best means to protect citizens against abuse of power. The Conseil can supervise the form and content of administrative decisions. It can also supervise the grounds on which administrative action is taken. As regards the action for damages, damages can be granted to an individual when he is injured by an

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administrative action not only when the state is at fault but also when not at fault. This gives significant protection to the individual against the wrongs of public administration. The French Droit Administratif has sought to draw a balance between private rights and public benefit. On the one hand, it maintains and supports administrative powers; on the other, it has developed a mechanism for protecting individual rights and civil liberties against possible attacks by public authorities. The Conseil d'Etat has been characterised as the "bulwark of civil liberties," and also as the "guardian of administrative morality." This system has now come to be regarded as providing better protection to individual rights against the despotism of public administration than the Common-law system provides at present. It permits of a much deeper and broader range of control over the Administration than the courts in Britain can exercise.88 There is no longer any doubt that in criticising the Droit Administratif the way DICEY did, he displayed an utter lack of perception into the system. DICEY was a great believer in ordinary courts. Any transfer of judicial power to any other agency was anathema to him. But it is now realized that that cannot the sole test of the efficacy of the system of Administrative Law of a country. The crucial test is how effectively Administration is controlled in exercising its powers and whether or not a citizen has an adequate redressal mechanism in case he is hurt by the Administration. From both these tests, Droit Administratif is found to be more satisfactory than the common-law system of Administrative Law. DICEY had believed that administrative tribunals would be partial to the Administration. But the truth is that the Conseil d'Etat in discharging its judicial and controlling functions has achieved a high degree of objectivity.89 Gradually, some elements of Droit Administratif are filtering into the common-law system as well. In fact, some British scholars have made a very radical suggestion indeed: import Droit Administratif and Conseil d'Etat into England from France.90 But, many other scholars do not find such an idea palatable because it constitutes a fundamental break form the British tradition. They would like to reform their own system rather than import wholesale from outside. They advocate that there is nothing which the Common law system of Administrative Law cannot achieve after some modifications which the French Droit Administratif seeks to achieve.91 The question however remains whether England's membership of the European Economic Community will not subject its laws and institutions, particularly, the Administrative Law, to European influences in course of time.

1 See, infra, Chapters XVIII and XIX . 2 WADE & FORSYTH : Administrative Law, 9th Edn., 2005, p. 20. 3 The Law of the Constitution, 198 (8th ed.). 4 The Law of Constitution, at 198 (8th ed.). 5 On Droit Adtninistratif, see, infra, this chapter. 6 There was a third sense also which Dicey attributed to Rule of Law, viz., England does not have any constitutionally guaranteed fundamental rights (unlike the USA) but the basic political freedoms of the people are inherent in the common law, and are judgemade. This idea is not being discussed here as it is more relevant to Constitutional Law rather than to Administrative Law. It really indicates no constitutional principle but only summarizes a British legal tradition. However, lately there has been some shift in public opinion in favour of having some guaranteed freedoms: See, SCARMAN, English Law--The New Dimension (1974); YARDLEY, Modern Constitutional Developments: Some Reflections, 1975 Pub. Law, 197. For discussion on DICEY'S views see: COSGROVE, The Rule of Law, 66-113 (1980); WADE and PHILLIPS: Constitutional and Administrative Law, 86 (ed. BRADLEY, IX ed.). 7 LAWSON, DICEY Revisited, 7 Political Studies, 109,207 8 BROWN and GARNER, French Administrative Law (1983); MITCHELL, Constitutional Law (1968): HAMSON, Executive Discretion and Judicial Control (1954), SCHWARTZ, French Administrative Law and the Common Law World (1954); CAROL HARLOW, Remedies in French Administrative Law, 1977 Pub. Law 227; Z.M. NEDZATI and J.E. TRICE, English and Continental Systems of Adm. Law (1978). 9 Constitutional History of England, 505 (1908). 10 Board of Education v. Rice, (1911) A.C. 179; Local Government Board v. Arlidge, (1915) AC 120. The principle laid down in these cases is that when judicial or quasi-judicial powers are conferred on a government department, it is not bound to follow

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the ordinary court procedures in exercising its jurisdiction though it is bound to act with fairness. See, infra Chapter IX . 11 DICEY, The Development of Administrative Law in England, 31 LQR 148 (1915). 12 DAVIS, Discretionary Justice (1969). For discussion of discretionary powers, see, infra, Chapters XVII, XVIII, XIX ; JAIN, Cases, Chapters XV and XVI. 13 For Administrative Adjudication, see, infra, Chapters IX-XIV ; JAIN, Cases, Chapters VIII-XIII . 14 FRIEDMANN, Law in a Changing Society, 380 (1972). 15 55 LQR 587. 16 For discussion on Judicial Control of Administrative Act, see infra, Vol. II ; JAIN, Cases, Vol. IV. 17 HARRY W. JONES, The Rule of Law and the Welfare State, 58 Col. L.R. 143 (1958). 18 AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], at 154 : (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. 19 AIR 1976 SC 1207 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196], at 1254, 1263 : (1976) 2 SCC 521 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196]. For a full discussion of this case, see, JAIN, Indian Const. Law, 732-36 (1987). 20 AIR 1976 SC 1207 [LNIND 1976 SC 196] [LNIND 1976 SC 196] [LNIND 1976 SC 196]at 1224 : 1976 Supp SCR 172. 21 AIR 1975 SC 2299, 2384, 2470 : 1975 Supp SCC 1; JAIN, supra, note 17, at 886-887. Also see, BHAGWATI, J. in Bachan Singh v. Punjab, AIR 1982 SC 1325 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC 117]at 1340 : (1982) 3 SCC 24 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC 117]; JAIN, op. cit., 597. 22 E.P. Ropayya v. Tamil Nadu, AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]: (1974) 4 SCC 3 : 1974 (2) SCR 348 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]; Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND 1990 SC 565]at 539 : (1991) 1 SCC 212 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND 1990 SC 565]; JAIN, Indian Const. Law, 483-497. 23 See, infra, Chapter XVIII ; JAIN, Cases, Chapter XV. 24 Chattar Singh v. State of Rajasthan, (1996) 11 SCC 742 [LNIND 1996 SC 1532] [LNIND 1996 SC 1532] [LNIND 1996 SC 1532], 749-50 (para 17) : AIR 1997 SC 303 [LNIND 1996 SC 1532] [LNIND 1996 SC 1532] [LNIND 1996 SC 1532]. 25 On Droit Administatif, see, infra, 38. 26 SCHWARTZ and WADE, Legal Control of Government, 4 (1972). Also, WADE, Adm. Law, 25 (1982). 27 Report of the Administrative Review Committee (Australia), 32 (1971); Law Commission, Working Paper No. 13, para. 8 (1967). 28 FRIEDMANN, Law in a Changing Society, 352-3 (1959); see pp. 381-382 (1972). 29 Some of the cases reminiscent of this judicial phase are: Institute of Patent Agents v. Lockwood, (1894) A.C. 347; Liversidge v. Anderson, (1942) AC 206; Nakkuda Ali v. Jayaratne, (1951) A.C. 66; Vidyodaya University v. Silva, (1965) 1 WLR 77; Duncan v. Cammell Laird & Co., (1942) AC 624. 30 J.A.G. GRIFFITH, Administrative Law and the Judges, The Pritt Memorial Lecture (1978). 31 DAVIS, Judge-made Law in England, (1961) 61 Col. L.R, 209; Lord DEVLIN, 9 Current Legal Problems, 1, 14 (1956). 32 Ridge v. Baldwin, (1963) 2 All ER 66. Lord REID said in his opinion that England did not have a well developed system of Administrative Law. 33 Also see, M.P. JAIN, Changing Face of Administrative Law, 1-21, 47-48 (1983). 34 (1971) 1 All ER 1148, 1153. Also see the opinion of Lord WILBERFORCE in Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, 1293. Compare this statement with what Lord REID had said only eight years earlier in Ridge v. Baldwin, (1963) 2 All ER 66. 35 So much so that in 1981, Lord DIPLOCK cautioned that any judicial statements on matters of public law made before 1950 "are likely to be a misleading guide to what the law is to-day". See, L.R.C. v. Federation of Self-Employed, (1981) 2 All ER 63 at 103, 104. 36 M.P. JAIN, Changing face of Administrative Law, at 47-64.

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37 CECIL CARR, Concerning English Administrative Law (1941). For excerpts from the report of the Committee, see, JAIN, Indian Adm. Law: Cases and Materials, Chapter III. 38 For details see, infra, Chapter, VI . 39 Infra, Chapter XXIV, under Compensation. 40 Crichel Down Enquiry Report, cmd. 9176 (1954). 41 For excerpts from the Report of the Franks Committee, see, JAIN, Cases, Chapter XII, Sec. B. 42 For details see, infra, Chapter XIII ; JAIN, Cases, Chapter XII, Sec. B. 43 Justice, The Citizen and the Administration. 44 Infra, see under Ombudsman, Vol. II . 45 See, Justice, Administration under the Law (1971). For discussion on problems of reform of Administrative Law at this time in England, see, TRICE, Administrative Law Reform-A Survey, (1972) Jl. Planning Law, 418-26; WADE, Crossroads in Adm. Law, (1968) Current Legal Problems, 75-93. 46 See, infra, under New Zealand, 28. 47 Law Comm., Working Paper No. 20, Cmnd. 4059; Also, (1967) Public Law, 185. 48 Law Comm., Report on Remedies in Administrative Law, Paper No. 73, Cmd. 6407 (1976). For comments on this report, see, WADE, 92 L.Q.R. 334 (1976) and 94 LQR 179 (1978). 49 Infra, under Judicial Control. For further details of the changes made in England, see, JAIN, M.P. JAIN, Changing Face of Administrative Law, at 50-64 (1983). 50 The paper is entitled Review of Administrative Law in the United Kingdom. The paper highlights a number of lacunae existing in Administrative Law. See, further, JAIN, M.P. JAIN, Changing Face of Administrative Law, at 62-64 (1983). 51 The title of the report is: Administrative Justice: Some Necessary Reforms (Clarenden Press: 1988). 52 KERR Committee, Report (1971); BLAND Committee, Interim Report and Final Report, (1973). For a discussion on the KERR Committee Report see, M.P. JAIN, Reform of Administrative Law in Australia, 15 J.I.L.I., 185-216 (1973). 53 For a discussion of these reforms, see, KATZ, Australian Federal Adm. Law Reform, 58 Can. B.R. 341 (1980); WHITMORE, Principles of Australian Adm. Law, 210-223 (1980); M.P. JAIN, Changing Face of Administrative Law, at 64-73 (1982). Also see, infra, under Right to Information. 54 See, infra, under Ombudsman. 55 M.P. JAIN, Reform of New Zealand Administrative Law, (1983) 25 J.I.L.I, 297. 56 Public and Administrative Law Reform Committee, Reports. Also, PATERSON, First Report of the Pub. & Adm. Law Reform Committee, (1968) 3 New Zealand Universities L.R., 351 (1968); J.F. NORTHEY, A Decade of Change in Adm. Law, 6 N.Z.U.L.R., 25 (1974); M.P. JAIN, Reform of New Zealand Administrative Law, (1983) 25 J.I.L.I, 297; M.P. JAIN, Changing Face of Administrative Law in India and Abroad, 77-79 (1982). 57 M.P. JAIN, Changing Face, of Administrative Law in India and Abroad, 73-77, 1982. 58 M.P. JAIN, Justice BHAGWATI and the Indian Administrative Law, 1980 BENARAS L.J. 1; The Evolving Indian Adm. Law (1983); M.P. JAIN, Changing Face of Administrative Law, at 80-98 (1983). 59 Infra, Chapters XIII and XIV on Administrative Adjudication. 60 See, infra, under Ombudsman. 61 DAVIS, I Administrative Law Treatise, 64 (1958). 62 For discussion on the doctrine of separation, see, VANDERBILT, The Doctrine of Separation of Powers; VILE, Constitutionalism and the Separation of Powers (1967); also articles in 52 Indiana L.J., 311-447 (1977); Report of the Attorney General's Committee on Administrative Procedure, 7 (1941). 63 See, Liyanage v. R., (1967) A.C. 259; Hinds v. R., (1967) 1 All E.R. 353; S.P. Gupta v. Union of India, AIR 1982 SC 149 : 1981 Supp SCC 87 : 1982 (2) SCR 365. 64 JAIN, Indian Constitutional Law, 115-119 (1987). 65 Infra, Chapter IV .

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66 Infra, Chapter V . JAFFE AND NATHANSON, Administrative Law; Cases and Materials, 109-115 (1961); SCHWARTZ, Legislative Control of Administrative Rules and Regulations: The American Experience, 30 N.Y.U.L.R. 1031 (1955); MILLER and KNAPP, The Congressional Veto: Preserving the Constitutional Framework, 52 Indiana L.J., 366 (1977); MARTIN, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va. L. Rev., 253 (1982); SCHWARTZ, The Legislative Veto and Constitution--A re-examination, 46 Geo. Wash. L. Rev., 351, 362-63 (1978). Also see, Immigration and Naturalization Service v. Jagdish Rai Chadha, 462 U.S. 919 (1983). 67 Infra, Chapters IX, XIII . 68 The first of such commissions--The Interstate Commerce Commission--was established as early as 1887. Since then a number of such commissions have been established. 69 Federal Trade Comm. v. Ruberoid Co., 343 U.S. 470,487 (1952). 70 DAVIS, I Administrative Law Treatise, 65 (1958). Also, Report of the Attorney General's Committee on Administrative Procedure, 7 (1941). 71 SCHWARTZ and WADE, Legal Control of Government, 27; WADE, Towards Administrative Justice, 24-51 (1963). 72 JAFFE and NATHANSON, Administrative Law, Cases and Materials, at 38. 73 Even in countries with a parliamentary system, it has become quite common to set up statutory bodies having mixed functions e.g., regulatory, administrative, legislative, adjudicative etc. In India, a number of such bodies may be identified, as for example, Election Commission, Reserve Bank of India etc. 74 JAFFE and NATHANSON, Administrative Law: Cases and Materials, 38 (1961). 75 BYSE, The Federal Administrative Procedure Act, 1 J.I.L.I., 89,92 at 107. Also, JAFFE, The Administrative Procedure Act, (1956) Public Law, 218; NATHANSON, Some Comments on the Administrative Procedure Act, 41 Ill. L.R., 368 (1946-7); SCHWARTZ, The Administrative Procedure Act in Operation, 29 N.Y.U.L.R., 1173 (1957); WARREN, The Federal Administrative Procedure Act and the Administrative Agencies (1947); SCHWARTZ, Casebook, 59. 76 KERR Committee, Report, 100-1 (1971). 77 SCHWARTZ and WADE, Legal Control of Government, 77-80, at 78. Also, ENID CAMPBELL, Public Access to Government Documents, 41 A.L.J., 73; S.N. JAIN, Official Secrecy and the Press, 37 (ILI, 1982); see for comments on the Information Act, 14 Harv. Jl. of Legislation, 620 (1977); see, infra, under Right to Information. 78 SCHWARTZ and WADE, Legal Control of Government, 180-4. Also, WOZENCRAFT, The Administrative Conference of the U.S., (1968) 24 Business Lawyer, 915; SCHWARTZ, Recent Developments in American Administrative Law, (1980) 58 Can. B.R., 320. 79 Mcnabb v. U.S., 318 U.S. 332, 347 (1943). See, supra, 11-12. In this connection, Schwartz observes as follows: "The focus of administrative law today is the administrative process itself-the procedures that administrative agencies must follow in exercising their powers." Adm. Law--A Casebook, 59 (1988). 80 424 U.S. 1 (1977). 81 Buckley v. Valeo, 424 US 121 (1977). Also see, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). 82 462 US 919 (1983). 83 Legislative powers are exerciseable by both Houses of Congress and not by one House alone. 84 A bill is passed by the two Houses and is then presented to the President for his approval. 85 Indra Sawhney v. Union of India, AIR 2000 SC 498 : (2000) 1 SCC 168. 86 This aspect, namely, settlement of disputes between the citizen and the Administration constitutes only a small sector of Droit Administratif. 87 The Conseil d'Etat was established in 1799. Originally it was an advisory body but gradually it also took over adjudicatory functions. This became necessary in 1790 when civil courts were prohibited from hearing any matter involving the Administration. 88 In its exploratory Working Paper, No. 13 of 1967, the Law Commission referred to the feeling expressed by some that one reason for the British Judges not being able to get "near enough" to the administrative decision could be their "lack of expertise in the administrative field." As against this, the judges of the Conseil d'Etat possess high degree of expertise. This is one of the factors which have given to that body "the qualities which have been so widely admired." See, (1967) Public Law, 185; supra, 20. After reviewing the views and criticisms on this paper, the Commission finalised it and submitted it to Lord CHANCELLOR in 1969.

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89 For references on Droit Adrninistratif see, BROWN and GARNER, French Administrative Law (1983); MITCHELL, Constitutional Law (1968); HAMSON, Executive Discretion and Judicial Control, (1954); SCHWARTZ, French Administrative Law and the Common Law World (1954); CAROL HARLOW, Remedies in French Administrative Law, (1977) Pub. Law 227; Z.M. NEDZATI and J.E. TRICE, English and Continental system of Adm. Law (1978). Also, P.M. GAUDEMET, Droit Administratif in France in DICEY, The Law of the Constitution, App. I, 475-491 (1959). 90 See MITCHELL, The Causes and Consequences of the Absence of System of Public Law in the United Kingdom, (1965) Pub. Law, 95. Also, 46 Pub. Adm., 167 (1968); (1967) Political Quarterly, 380. 91 See, WADE, Crossroads in Adm. Law, (1968) Current Legal Problems, 75-93. JAFFE, Research and Reform in Eng. Adm. Law, (1968) Public Law, 119-134. Also see, supra.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER III CLASSIFICATION OF FUNCTIONS

CHAPTER III CLASSIFICATION OF FUNCTIONS 1. THREEFOLD CLASSIFICATION An administrative lawyer has at times to classify action taken by the Administration into three categories, viz.: legislative, administrative and quasi-judicial (or adjudicative, the term commonly used now). Although many thoughtful scholars have decried such a conceptual classification of functions discharged by the Administration, and although it is usually too difficult or artificial to make such a classification, and although in recent years the courts have made some attempt to reduce the need for, and reliance on, such a classification (especially between administrative and quasi-judicial)1, the fact remains that in the present state of Administrative Law, it is not possible to avoid such a labelling exercise, as much of the law relating to executive government is still based on such a classification. For example, distinguishing between legislative function, on the one hand, and administrative /quasi-judicial function, on the other hand, assumes practical significance inter alia for the following reasons:(i) Publication: Usually, a legislative order is required to be published in the official gazette,2 but not an administrative order, the reason being that the former is of a general nature and applies to many persons and hence it should be widely known, but the latter applies to a specified individual or individuals and, therefore, it is enough if it is served on the affected person or persons. This can be illustrated by reference to the position under the Essential Commodities Act, 1955. Under S. 3, the Central Government may by 'order' regulate several things--movement of essential commodities, their prices, distribution, etc. Under S. 3, the Administration can make either a legislative or an administrative order. This becomes clear from S. 3(5), which lays down that an order of a 'general nature'; or one affecting a 'class of persons' has to be notified in the official gazette, but an order directed to a 'specified' individual need only be served on the concerned person without being published in the gazette.3 Many examples can be found of statutory provisions under which the Administration can issue either a legislative or an administrative order. (ii)

(iii)

Procedure: Different procedures may have to be followed by the Administration in making orders of different kinds. There arise procedural differences depending on the nature of the order in question. As we shall see later, for making a quasi-judicial order, the Administration must follow principles of natural justice, even when the specific statute under which the action in question is being taken is silent on the point.4 But, in case of exercise of legislative power, the Administration need not follow natural justice;5 the Administration must follow only such procedural norms as may be stipulated in the relevant statute, there being no obligatory implied procedural requirements to be followed in such a case.6 Judicial Review: As will be seen later, the scope of judicial review is narrower in respect of legislative function than in case of administrative or quasi-judicial function. For example, while

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(iv)

mala fides may be pleaded as a ground for challenging an administrative action, it is doubtful that the same ground may be invoked to challenge a legislative order.7 Sub-delegation: Differences between legislative and non-legislative functions also may become meaningful when questions of sub-delegation of powers arise.8

All the above-mentioned points are considered in greater detail at proper places in the book. Before going further with the matter of classification of functions, it needs to be pointed out that an extremely complicated problem of to-day's Administrative Law is that of terminological inexactitude. For example, the term 'administrative' is used in two senses. One, a broad sense, e.g., every thing pertaining to the Administration is administrative. Thus, the expression Administrative Law denotes the law pertaining to the Administration and deals with the whole gamut of powers exercised by the Administration. In the broad sense, the word administrative denotes all kinds of bodies participating in the administrative process (other than the legislature and the courts), and all kinds of functions discharged by them, whether legislative, administrative, quasi-judicial or of any other kind. Two, the word 'administrative' is used in a narrow sense, i.e., it denotes only a limited category of functions discharged by the Administration--functions in juxtaposition to legislative and quasi-judicial functions. It is from the context in which the word 'administrative' is used that one can identify the sense in which the word is used. More has been said on this point later in the book. 2. IDENTIFICATION OF A LEGISLATIVE ORDER The present day Administrative Law suffers from conceptual confusion. The terms legislative, administrative and quasi-judicial are used constantly, but none of these concepts is susceptible of an articulate definition. One of the most difficult problems of Administrative Law is to identify the nature of a function discharged by the Administration. There is really no bright line of distinction between these concepts. Howsoever the definition of any these concepts be formulated, it either excludes, or includes, something which ought to be included, or excluded, from the purview of that concept. Whatever test is propounded to identify these concepts, there will always be some exceptional situations falling on the other side of the line. The problem to consider at this place is: how to distinguish 'legislative' from other types of functions? When a statute confers power on the Administration to make rules, regulations, bye-laws etc., it is easy to identify them as delegated legislation. But how to identify delegated legislation when these terms are not used. Are such functions as price-fixing, wage-fixing, fixing tax rates legislative in character? No articulate norms have been evolved so far to distinguish between legislative and non-legislative functions. Difficulties in characterisation arise because of several reasons. One, many a time, administrative bodies perform and exercise mixed functions. For example, the Election Commission exercises legislative, administrative and adjudicatory functions. Two, as stated above, a statute may give power to the Administration to make orders for certain purposes. Such orders may be legislative or non-legislative. To take one example, the Imports and Exports (Control) Act, 1947 confers power on the Central Government to regulate import and export of commodities through an order published in the Gazette of India. Under this power, both types of orders--legislative or non-legislative--can be made. In the U.S.A., two tests have been propounded to identify legislative functions. One test depends on the element of applicability, i.e., legislative function is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class. As against this, an administrative decision is one which applies to specific individuals or situations. Similarly, a power to take specific action is administrative; power to take general action is legislative. Another test is that a rule prescribes future patterns while an administrative decision determines liabilities on the basis of present or past facts.9 The Administrative Procedure Act emphasizes upon the second test and not the first.10 The key factor in the definition of a rule in A.PA. is that of 'future effect', and not the distinction between 'generality' and 'particularity'. This means that statements of particular applicability, i.e. applying to specific individuals or situations but having 'future effect', may be characterised as legislative in nature. Both these tests, viz. generality and futurity, are workable in a great majority of situations, though there may arise some situations where the tests may not work. In England, the Committee on Ministers' Powers evolved a definition which included the elements of both the above tests, viz., legislation is the process of formulating a general rule of

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conduct, without reference to particular cases, and usually operating in futuro; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.11 The Committee gave the following examples of administrative powers which are "in no sense legislative": (i) the power to issue a particular command; (ii) the power to issue a licence; (iii) the power to remit a penalty; (iv) the power to inspect premises; (v) the power to inquire.12 In modern times, de Smith has emphasized the applicability test. He observes: "A distinction often made between legislative and administrative acts is that between the general and the particular." And, further, "A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency or administrative practice."13 With the help of the above-mentioned test of general applicability, it is possible to distinguish legislative functions from any other kind of functions in a large number of situations. But then there may be cases where the test may break down for it may not be easy to distinguish 'general' from 'particular'. The test of generality of an order is not very articulate. It gives enough scope for judicial policy to have play. The distinction between that which is general and that which is particular in its application is itself only a matter of degree. For example, an order fixing price of a commodity may be treated as of general applicability if the commodity involved is something like rice or wheat which is produced by thousands of farmers, but may be treated as of particular applicability if the commodity involved is, say, pig iron which is produced by a few producers. The difficulties of characterising a function can be very well illustrated by reference to some court cases. In Express Newspapers Ltd. v. Union of India, 14 a statutory wage board was appointed to fix the rates of wages of working journalists. The Board consisted of an equal number of persons nominated by the Central Government to represent employers in relation to the newspaper establishments and working journalists with an independent person as chairman. The Supreme Court considered the nature of the function discharged by the wage board. This became important for several reasons: (i) whether the decision of the wage board was open to judicial review; (ii) whether the principle of natural justice applied to its proceedings. If the functions of the Board were held to be administrative or legislative in character they could not be subject to appeal to the Supreme Court under Art. 136,15 and natural justice would not be applicable to the proceedings before the board.16 The Court pointed out that a practical difficulty arises in characterising the functions of administrative agencies because their functions do not fall in watertight compartments. This difficulty may be resolved by the Court considering whether the agency performs a predominantly legislative or administrative or quasi-judicial function.17 Since the Board's determinations would bind not only the employers and employees and not only in the present but in the future as well, its function could be regarded as being of legislative character. But as the wage board also adjudicates between the employers and employees and thus discharges a function like that of an industrial tribunal, it could be said that it discharges a quasi-judicial function. After analysis, the Court refused to pronounce a final verdict in the instant case. In India, formerly, the courts proceeded on the basis that a power to fix prices is administrative rather than legislative in nature.18 But then the judicial view underwent a change. In S.I. Sytdicate,19 was challenged a notification issued by the Central Government under the Sugar (Control) Order, 1966, fixing ex-factory prices of sugar for the sugar factories specified in the order. Under the Control Order, in fixing sugar prices, the government was to give regard to the costs given in the Report of the Sugar Enquiry Commission and subsequent rise in the cost of production. The Supreme Court characterised the price-fixing power as "more in the nature of a legislative measure." This approach excludes the invocation of the concept of natural justice in the exercise of price-fixing function. But, as the Court insisted, the "criterion" adopted to fix the price "must be reasonable," and in S.I. Syndicate, while adjudicating upon the validity of the price fixing order, the Court invoked such considerations as are more pertinent to an administrative rather than a legislative order. For instance, the Court stated that Government cannot fix any arbitrary price, or fix a price on extraneous considerations, and reasonable criteria have to be applied in fixing prices; there should be reasonable nexus between the matters which are taken into account in exercising a power and the purposes for the exercise of that power. As we shall see,20 these are tests more pertinent to the exercise of discretionary administrative power. In the instant case, the Court rejected the writ petition as it was not satisfied that in fixing the price of sugar the government took into consideration any extraneous matters or that it acted arbitrarily or unreasonably in doing so. In later cases, however, the Supreme Court has come out more clearly in favour of

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characterising the rate-fixing power as legislative.21 In this connection, reference may be made to a recent landmark Supreme Court case Union of India v. Cynamide India Ltd. 22, in which the Court has examined in depth the nature of the price-fixing function. The Court has ruled that price fixation under the Drugs (Price Control) Order, 1979, is a legislative activity. The Court has noted that "the distinction between the legislation and administration is disappearing into an illusion with the proliferation of delegated legislation" and so it is "difficult in theory and impossible in practice" to attempt to draw a distinct line between legislative and administrative functions. Nevertheless, such distinction needs to be made for deciding whether natural justice applies. The test laid down by the Court for the purpose of drawing such distinction is: "A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases, an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of Policy. Legislation is process of formulating a general rule of conduct without reference to particular cases and usually operating in future, administration is the process of performing particular acts of issuing particular orders or of making decisions which apply general rules to particular cases."

Here the Court refers to both the aspects of a legislative act, as mentioned above, viz.: its generality and futurity. As regards the latter, the Court has observed further that while "adjudication is determinative of the past and the present" facts and decides rights and liabilities, "legislation is indicative of the future" course of action. Thus, generality and prospectivity distinguish a legislative from an administrative /quasi-judicial act. The The Drugs (Price Control) Order, 1979, was made by the Central Government in exercise of its powers under Sec. 3(2)(c) of the Essential Commodities Act, 1955. The Central Government issued notifications under Para 3 of the Order fixing the maximum prices at which the various indigenously manufactured bulk drugs could be sold by the manufacturers. Notifications fixing the retail prices of the formulations were also issued. These notifications were struck down by the Delhi High Court on the ground of "failure to observe the principles of Natural Justice". The Court's view was that since the existing drug prices were being changed causing loss to the manufacturers, they ought to have been given a hearing before deciding upon the new prices. On appeal, the Supreme Court held in the instant case that "price fixation does not concern itself with the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in the future. It is conceived in the interests of general consumer public. The right of the citizens to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge no more than the price fixed." Price fixation assumes legislative character if viewed from the angle of its general application, the prospectivenes of its effect, the public interest served, and the rights and the obligations flowing therefrom. However, there may be circumstances when "Price fixation may assume administrative or quasi-judicial character" e.g., when it relates to acquisition or requisition of goods or property from an individual. In such a case, price has to be fixed separately in relation to the concerned individual. Such a situation may arise when the owner of the property or goods is compelled to sell his property to the Government or its nominees at the price directed by the legislature to be determined according to statutory guidelines laid down by it.23 Legislative activity whether plenary or subordinate is not subject to the rules of Natural Justice. Parliament may provide in a statute for a notice and a hearing. Failure to observe the statutory requirement renders the subordinate legislation invalid under the theory of procedural ultra vires.24 But if the legislature is silent, or has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read Natural Justice into such legislative activity. Thus, the Court has ruled that "price fixation is a legislative activity and the question of observing principles of natural justice does not arise". Accordingly, the price fixation under the Drugs (Price Control) Order, 1979 has been held to be a legislative activity. What the Drugs (Price Control) Order contemplates is "such enquiry" by the Government "as it thinks fit". This provision enables the Government to obtain relevant information from any source and is not intended to vest any right in any other body. In the present case, the enquiry under Para 3 of the Drugs (Price Control) Order is intended for fixing the maximum price at which a bulk drug may be sold with a view

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to regulate its equitable distribution and make it available at a fair price. In arriving at a price of a bulk drug the Government is expressly required by the order to take into account the average cost of production of such bulk drug by an "efficient manufacturer" and allow a reasonable return on net worth. The Government is free to collect information from any source including the manufacturers. The enquiry contemplated by Para 3 of the Drugs (Price Control) Order is an enquiry leading to legislative activity. Such enquiry must of necessity comply with statutory conditions, if any, but principles of natural justice cannot be impliedly read into it unless it is a statutory condition.25 In State of U.P. v. Renusagar Power Co., 26 referring to Cynamide, Chinnappa Reddy, J., has again observed that price fixation is more in the nature of a legislative activity than any other. Due to the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions is difficult in theory and impossible in practice. In the instant case, the Court has ruled that the power given to the government to grant exemption from the operation of a statute may be regarded as quasi-legislative and quasi-administrative. When this power is exercised with reference to any class it would be in the nature of subordinate legislation, but when the power is exercised with reference to an individual, it would be regarded as administrative. In Renesagar, a decision on exemption sought by a company from payment of the electricity duty on self-generated electricity for its own consumption, has been held to be quasi-judicial in nature. This means that the government has to give a hearing to the company before deciding the matter. On the other hand, in Bakul,27 an exemption order of a general nature has been held to be legislative in nature. It may however be emphasized that the courts should be wary of unduly extending the frontiers of legislative function, as this concept is often invoked by the Administration to deny hearing to the affected persons. The more the concept of legislative function expands the less scope there will be to invoke procedural safeguards for the affected interests. In this way, much of the gains made by expanding the concept of natural justice will be neutralized correspondingly.28 It also needs to be emphasized that even though the order in its final form may seem to be legislative, it may still be preceded by some kind of an adjudicatory process. Certain facts may have to be determined by the Administration before making the order. For example, it is possible to argue that in price-fixation, two major considerations are: cost of production to a producer and his margin of profit. Both of these seem to be adjudicative facts and that fairness demands that these facts ought not to be decided by the concerned authority without giving a hearing to the producer as these facts directly pertain to him. There seems to be no reason to deny application of natural justice to the pre-order stage in such a case. An administrative lawyer cannot afford to ignore the pre-order process and concern himself merely with the end product. The courts should investigate the possibility of applying adjudicative process in a situation even if the end product is regarded as legislative. More will be said in this connection later. Here an instructive case from New Zealand may be cited.29 Under a statutory provision a tribunal was appointed to fix prices for goods and services. To discharge that function, the tribunal could hold such inquiries and conduct such investigations as it thought fit. The Court of Appeal held by majority that the tribunal was bound to give a hearing to the vendors of goods before fixing the price of any class of goods. The Court considered the question on the basis whether the tribunal discharged an administrative or a quasi-judicial function. The majority view was that the decision of the tribunal affected the rights of the vendors and that it should act judicially. On the other hand, the minority view was that the tribunal had to decide questions on the basis of "policy or expediency" and that its function was administrative in nature. The question whether price-fixing was a legislative function was never raised in the case.30 In this connection, an Indian case State of Assam v. Bharat Kala Bhandar 31 may be mentioned. The executive issued a notification under the Defence of India Rules, 1962, notifying certain employments as essential "for securing the public safety and for maintaining supplies and services necessary to the life of the community." Another notification ordered payment of an ad hoc specific cost of living allowance per month to all workers drawing pay up to Rs. 400 per month and also to workers employed on daily wages in essential services. A question was raised before the Court about the necessity of consultation of the concerned interests before the issuance of the two notifications. The Supreme Court ruled that it was necessary to consult the interests concerned before the notifications were issued. The Court stated: "The effect of the exercise of such power is to unsettle settled relations between employers and employees which may be

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existing for along time and which may be the outcome either of contractual relations or even of industrial awards".32 The Court went on to say that such "wide" and "far-reaching" powers ought not to be exercised without consulting the interests concerned. In this case, the government did enter into some kind of consultation but the Court did not find the same to be adequate and, thus, quashed the order. The Court insisted that "some kind of collection of data with the help of the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred by sub-rule (4)..." According to the above mentioned tests for classification of functions, the notification in question could be regarded as being of legislative character and yet the Court insisted on some kind of consultation before its issue. This is the right approach. In the instant case, the Court did not put any label on the power exercised but analysed its effect. If a rule lays down a prospective law, may be no hearing or consultation is mandated, but when established rights or interests are sought to be disturbed, then the affected interests ought to be given some participation in the decision-making process. Hearing or consultation ought not to be denied by adopting a mere formalistic stance-whether the order in question is legislative or quasi-judicial; the important consideration is its effect on established interests. In some cases, there may be some adjudication prior to issuing of a 'legislative' order. Hearing in a legislative order is sought to be excluded on the analogy of a legislature which does not hear any body while enacting a law. But this is not a correct analogy for the legislature being a representative body is not likely to take arbitrary action; but when the Administration exercises legislative function, there is no such in-built safeguard. From this point of view, in Cynarnide, the High Court approach seems to be preferable to the Supreme Court view.33 This is the approach adopted by the Supreme Court in Shephard.34 The Reserve bank prepared three separate schemes of amalgamation of three private banks with nationalised banks. This involved dispensing with the services of 125 employees of the private banks. These schemes were challenged by these employees, inter alia, on the ground that no opportunity of being heard was given to them. The Reserve Bank argued that the 'scheme-making' was 'legislative' in character and, thus, was outside the purview of the ambit of natural justice. The Supreme Court rejected the contention of the Bank and upheld the employees' argument. Two points may be noted in this connection. One, under a provision in the Banking Regulation Act, any such scheme was required to be placed before both Houses of Parliament. This could be regarded as indicative of scheme-making being a legislative activity.35 Still, the Court argued that there were similar statutory provisions requiring placing of material before the two Houses of Parliament yet not involving any legislative activity. Two, the schemes in question applied to a large number of employees of the three banks, of whom 125 were adversely affected as they were to lose their jobs. And, yet, the schemes were held not legislative in nature. The Court seems to have felt concerned that to hold the schemes as legislative would deprive the affected employees of any opportunity to defend themselves against whatever charges there might be against them resulting in their dismissal from service. Thus, the test of 'generality' to distinguish between a legislative or an adjudicatory act is only a broad test which may not necessarily be true or decisive always, and other considerations may have to be taken into account by the courts to decide the nature of a particular act of the Administration. The Govt. of India in exercise of the powers conferred by Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 framed the scheme of amalgamation of the New Bank of India with the Punjab National Bank called the New Bank of India [#8968]Determination of Placement of Employees (Officers and Workmen) of the New Bank of India in Punjab National Bank[#8969] Scheme, 1993 which the High Court held to be not legislative in view of the decision of the Supreme Court in K.I. Shephard v. Union of India 36 where in some of private Banks were amalgamated with certain Banks in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949 and on examining the said Section 45(11), the Supreme Court came to hold that merely because a scheme frame is required to be laid before both Houses of Parliament after the same has been sanctioned by the Central Govt., the scheme cannot be held to be legislative in nature. The Supreme Court was of the view that the High Court had failed to notice the fundamental distinction between the provisions of Section 45 of the Banking Regulation Act, 1949 and Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 as under the latter, the scheme framed is required to be laid before each House of Parliament for a total period of 30 days and Parliament has the power to agree to the scheme or make any modification or reject it, only then the scheme becomes effective whereas under the former, the scheme framed has merely to be placed before Parliament and nothing further. Hence, the Apex Court held that scheme framed under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 is a legislative one.37

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Reference may also be made here to Govt. of Mysore v. J.V. Bhat 38 In this case, the Supreme Court ruled that the government could not issue a notification declaring an area as a 'slum area' or a 'clearance area' without giving a hearing to the property owners in the said area as such a notification had deep and abiding impact on the property rights of the people. This notification was of general applicability and, as such, could be regarded as legislative in nature but still the Court insisted on hearing being given to the affected parties and, in fact, quashed the notification on the ground of non-hearing. One reason for such an approach was that at that time, Art. 19(1)(f), a fundamental right in the Constitution protected property rights and only reasonable restrictions (both substantive as well as procedural) could be imposed on property rights. Therefore, to make substantive restrictions on property rights reasonable, it was necessary to have proper procedural safeguards. Again, in S.C. & Weaker Section Welfare Association v. State of Karnataka, 39 a notification cancelling an earlier notification which had declared an area as a slum clearance area was quashed by the Supreme Court on the ground that it adversely affected the interests of the slum dwellers as no development would now take place in the slum area in question. The earlier notification was a step in the direction of improving the condition of slum dwellers. The later notification by rescinding the earlier notification affected them adversely. As such, therefore, the slum-dwellers deserved to be heard before the notification was rescinded. This notification could very well be regarded as legislative in nature as it was of a general application as it applied to a large number of slum dwellers and still the Court insisted on a hearing being given to the affected persons. There was no question of Art. 19(1)(f) in this case. The Court did not at all go into the question whether the impugned notification could be regarded as legislative in character. These cases show that while the general principle is that no hearing need be given by the Administration when it is discharging a legislative function, there may be circumstances when the courts may relent on the point and adopt somewhat liberal approach on the matter of procedural safeguards to the affected persons.40 It may also be pointed out that, for some time now, the doctrine of "legitimate expectation" has come into being. A person can claim hearing on the basis of "legitimate expectation" when the Administration affects him adversely through a legislative order.41

1 See, infra, Chapter IX . 2 See, infra, Chapter VI . 3 See, infra, Chapter XV . 4 See, infra, Chapter IX . 5 Tulsipur Sugar Co. Ltd. v. Notified Area Committee, AIR 1980 SC 883 : (1980) 2 SCC 295; JAIN, Cases, 284; Union of India v. Cynamide India, AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720; Bates v. Lord Hailsham, (1972) WLR 1372; JAIN, Cases, 626. Also see, infra, Chapters VI and IX . 6 See, infra, under Procedural ultra vires, Chapter V and Consultation, Chapter VI . 7 See, infra, Chapters V and XIX . 8 See, infra, Chapters VII, XXI . 9 SCHARTZ, American Administrative Law, 146 (1984); Administrative Law: A Case-book, 229-240 (1988). 10 NATHANSON, Some Comments on the Administrative Procedure Act, 41 Ill. L.R. 368 (1946). Also see, SCHWARTZ Casebook, 230-232 (1988). 11 Report, 20. See, supra Chapter II . 12 Report, 15-20. 13 Judicial Review of Administrative Action, 71 (1980). According to WADE, Administrative Law, 848 (1988), "... legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation." For further discussion, see, infra, Chapter XV . 14 AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]: 1959 SCR 12.

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15 Infra, under Judicial Control. 16 Infra, Chapter IX. 17 See, infra, Chapter IX, for differentiation between administrative and quasi-judicial functions. 18 Dwarka Prasad v. Uttar Pradesh AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]: 1954 SCR 803; Diwan Sugar Mills v. Union of India, AIR 1959 SC 626 [LNIND 1959 SC 10] [LNIND 1959 SC 10] [LNIND 1959 SC 10]: 1959 (2) Supp SCR 123; Subhash Oil Industries v. State of U.P., AIR 1975 All 19. In Premier Automobiles v. Union of India, AIR 1972 SC 1690 [LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC 596]: 1972 (2) SCR 526, the Supreme Court suggested the appointment of a commission for the purpose of suggesting a fair price for the cars manufactured by car manufacturers after taking into consideration all the relevant factors. There were only three car manufacturers at the time. 19 S.I. Syndicate v. Union of India, AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], 464 : (1974) 2 SCC 630 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257]. The Court observed in this connection: "Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the price. Nevertheless, the criterion adopted must be reasonable." 20 Infra, Chapter XIX. 21 Prag Ice and Oil Mills v. Union of India, AIR 1978 SC 1296 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69]: (1978) 3 SCC 459. In this case, a statutory order fixing the sale price of mustard oil was challenged. 22 AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. See, JAIN, Cases, Chapter II, 13, 310. 23 Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 223. See, JAIN, Cases, Chapter II, 19, 185. 24 Infra, Chapter V. 25 See, JAIN, Cases, Chapter V . 26 AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]: (1991) 70 Comp Cas 127. 27 Bakul Cashew Co. v. S.T. Officer, Quilon, AIR 1987 SC 2240: (1986) 2 SCC 365: (1986) 159 ITR 565; Also see, P.J. Irani v. State of Madras, AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]: 1962 (2) SCR 169; infra, Chapter XVII. For exemption clauses, see, infra, Chapter IV . 28 On Natural Justice, see, infra, Chapter IX . 29 New Zealand United Licensed Victuallers Association of Employers v. Price Tribunal, (1957) NZLR 167. 30 In the U.S.A., rate-making is regarded as legislative in character: See, Parentis v. Atlantic Coastline, 211 U.S. 210 (1908). But, when rates are fixed for a commodity being produced by one manufacturer only, it is regarded more as a quasi-judicial rather than a legislative activity and the manufacturer has a right to be heard: see, SCHWARTZ, Casebook, 353-54 (1988). Also, it may be noted that in 1936 in the first MORGAN case ( Morgan v. United States, 298 U.S. 468), the Supreme Court regarded the proceedings as quasi-judicial while fixing future rates of stockyard services. See, DAVIS, I Administrative Law Treatise, 416, 419 (1958). 31 AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123]at 1768 : 1968 (1) LLJ 25 [LNIND 1967 SC 124] [LNIND 1967 SC 124] [LNIND 1967 SC 124]: 1967 (3) SCR 490 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123]. 32 State of Assam v. Bharat Kala Bhandar, AIR 1967 SC (1766) at 1774: (1967-68) 33 FJR 273: (1968) 16 FLR 96. 33 In the U.S.A., A.P.A. provides for a consultative procedure in rule-making. No such procedure is prescribed in India: see, infra, Chapter VI . 34 K.I. Shephard v. Union of India, AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: 1988 (1) LLJ 162: (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. See, JAIN, Cases, Chapter II, 23 and Chapter VIII, 586. Also, H.L. Trehan v. Union of India, AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]: (1989) 1 SCC 764: (1989) 65 Comp Cas 673; JAIN, Cases, 590. 35 On 'laying procedure', see infra, Chapter VI . 36 (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] : (1988) 1 SCR 188 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. 37 New Bank of India Employees' Union v. Union of India, (1996) 8 SCC 407 [LNIND 1996 SC 565] [LNIND 1996 SC 565]

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[LNIND 1996 SC 565], 430 (para 32): AIR 1996 SC 3208 [LNIND 1996 SC 565] [LNIND 1996 SC 565] [LNIND 1996 SC 565]. 38 AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110; JAIN, Cases, 516. 39 AIR 1991 SC 1118: (1991) 2 SCC 604; JAIN, Cases, 519. 40 Also see, infra, Chapter VI ; Chapter IX . 41 See, infra, Ch VI, 163, under "Consultation," and also Chapter IX, notes 44a-47, 64b-64e and 301.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER IV DELEGATED LEGISLATION

CHAPTER IV DELEGATED LEGISLATION 1. INTRODUCTORY A trend very much in vogue to-day in all democratic countries is that only a relatively small part of the total legislative output emanates directly from the legislature. The bulk of the legislation is promulgated by the executive and is known as Delegated Legislation. Such legislation is made by a body by virtue of the powers conferred on it by a statute. Usually what happens is that the legislature enacts a statute covering only the general principles and policies relating to the subject-matter in question, and confers rule-making powers on the government, or some other administrative agency, to fill in the details. This technique of delegated legislation has assumed central importance in modern Administrative Process. Delegated legislation is being increasingly used as a major component of the method of modern government. It is so extensively used today that there is no statute enacted by the legislature which does not delegate some legislative power to the executive. Delegated legislation is so multitudinous that the statute book will not only be incomplete but even misleading unless it be read along with the delegated legislation which amplifies and supplements it.1 In no democratic country does the legislature monopolise the whole of the legislative power; it shares this power with the government and other administrative agencies. Over the years, delegated legislation has increased not only in bulk but in scope as well so much so that it is used not only to lay down details but also to lay down, amplify and change government policies from time to time. Delegated legislation has been defined by Salmond as "that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority". (See: Salmond, Jurisprudence, 12th Edn., page 116).2 "Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation."3 It is an accepted position in law that to "delegate" to another is not to denude yourself.4 As was observed by WILLS, J. in Huth v. Clarke:5 "In my opinion the word, in its general sense and as generally used, does not imply, or point out to, a giving up of authority, but rather the conferring of authority upon someone else."

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As was observed by Lord COLERIDGE, C.J. in 25 QBD 304,6 the word "delegation" implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The word "delegate" means little more than an agent. An agent exercises no power of his own but only the powers of his principal.7 In general, a delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except insofar as it may already have become bound by an act of its delegate.8 The term delegated legislation is used in two senses: (i) the exercise by a subordinate agency (a delegate of the legislature) of legislative power delegated by the legislature; or (ii) the subsidiary rules themselves which emanate from the subordinate agency as a result of the exercise of power as mentioned in (i). As administrative lawyers, we are interested more in the technique, i.e. in aspect (i) mentioned above, rather than in the actual rules themselves as mentioned in (ii), and so the term 'delegated legislation' is used here mostly in the first sense, though, at times, in the second sense as well. The technique of delegated legislation is very extensively used in India. The legislatures in India delegate broad legislative powers to the Administration as will be clear from the following discussion. The term often used in India is 'subordinate legislation'; it conveys the idea that the authority making the legislation is subordinate to the legislature and derives its powers from it. In the U.S.A., the term often used is 'rule-making' and this term is used in India also at times. Delegated legislation (in the second sense mentioned above) is designated by several names, such as, rules, regulations, bye-laws, orders, schemes9etc. As pointed out by RAY, C.J. in Sukhdev Singh v. Bhagatram.10 "Rules Regulations, Schemes, Bye-laws, Orders made under statutory powers are all comprised in delegated legislation." According to the legislative practice in India, the term 'rules' is more commonly employed. The terms 'regulations' and 'bye-laws' are usually used to denote the legislation framed by statutory, corporations under delegated legislative power. Generally, in respect of these corporations,11 there are two levels of delegated legislation: the government has power to promulgate 'rules' in respect of these bodies, and the corporation is also given power to promulgate 'regulations' or 'bye-laws', and these different terminologies are used to distinguish government-made rules from the corporation-made sub-legislation.12 The term 'bye-laws' is also used for the sub-legislation made by municipal bodies. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations.13 In terms of Section 127(1) of the M.P. Municipalities Act, 37 of 1961, the power to impose the tax has to be exercised by the Municipal Council, subject to any general or special order of the State Govt. The Municipal Council exercises power as a delegatee and the power exercised under Section 127 is a delegated legislation.14 Examples of promulgating delegated legislation through 'orders' are provided by several Acts, e.g., the Imports and Exports (Control) Act, 1947, and the Essential Commodities Act, 1955. At times, a statute may provide for making of delegated legislation under several appellations, e.g., the Essential Commodities Act, 1955, uses three terms--'order', 'notified order' and 'notification'--for the delegated legislation which the Central Government can make in exercise of its powers under several sections in the Act.15 The Supreme Court observed: "The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statue. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern-day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statue has begun to operate. Delegated legislation fills those

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needs. The regulations made under power conferred by the statute are supporting legislation and have the force and effect, if validly made, as an Act passed by the competent legislature."16

As to the need of delegation of legislative powers by the Central Govt. to the State Govt., the Supreme Court, in Govt. of A.P. v. Medwin Educational Society,17 observed that keeping in view the practical difficulties faced by the Central Govt. or the statutory bodies like the Medical Council of India or the University Grants Commission, some power is sought to be delegated to the State Govt. so as to make the parliamentary statute completely workable. Such "play in the joint" is also desirable having regard to the federal structure of our Constitution. (para 35) The question of such delegation of power under the Medical Colleges Regulations, 1993 read with the scheme framed thereunder has got to be considered having regard to the limited manpower and resources available to the Medical Council and the Dental Council on the one hand, vis-à-vis the plentitude of resources including the expertise in the matter of local conditions in the State on the other. (para 29). In delegating such a power to the State Govt., it is idle to contend that the Central Govt. has abdicated its powers in favour of the State Govt. in terms of Entry 66, List I of the VII Schedule of the Constitution. Parliament is empowered to enact an Act for the purpose of ensuring coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. By reason of such a provision, the Central Govt. cannot be said to abdicate its power in favour of the State. Thereby only a part of its function is required to be carried out by the State. (para 31) The rules framed by a statutory body have the force of law.18 The canteen facility of a residential university, the inmates of whose hostel are not permitted to have food from outside, cannot be said to be a mere welfare service to the students. The canteen facility is a requirement of the Regulations framed under the relevant Act and thus they have statutory sanction and force.19 The Bye-laws are laws in force in India.20 However, the Orissa Police Manual, 1940 does not have any force of law in view of the framing of the Orissa Ministerial Service (Method of Recruitment to Posts of Junior Assistants in the Offices of Heads of Departments) Rules, 1975, issued under Art. 309 of the Constitution and covering the Ministerial Staff of the DGP/IGP.21 Under Section 90 of the Jaipur Development Authority Act, 1982, the Government can frame the policy and issue guidelines for general application or for a class of persons or area or based on some other criteria as may withstand the test of Art. 14 of the Constitution.22 2. FACTORS LEADING TO THE GROWTH OF DELEGATED LEGISLATION Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by Parliament, delegated legislation also came to be made by an authority to which the power was delegated by Parliament. It is no use going back into the pages of history or to look to the Statute of Proclamations, 1539 under which Henry VIII was given extensive powers to legislate by proclamation. What is intended to be emphasised is that there has always been, and continues to be, need for delegated legislation. The exigencies of the modern State, especially the social and economic reforms, have given rise to the making of delegated legislation on a large scale (by authorising the Government, almost in every statute passed by Parliament or the State Legislature to make rules) so much so that a reasonable fear could have arisen among the people that they were being ruled by the bureaucracy.23 A number of factors have been responsible for the growth of delegated legislation in the modern democratic state.24 The fast-changing scenario of economic social order with scientific development spawns innumerable situations which the legislature possibly could not foresee, so the delegatee is entrusted with power to meet such exigencies within the inbuilt check or guidance and the declared policy.25 The increase in the scope and size of government has led to the growth of delegated legislation. As has already been stated26, the modern state functions on a very wide front and manages the day to day lives of the people to a very large extent. It directs a major part of the socio-economic development of the people. In India, since independence, the government has been endeavouring to evolve a socialistic pattern of society through democratic means which involve massive planning and control of various activities, especially private trade and commerce. All these circumstances create the need for more and more law. Law has become an accepted instrument of socio-economic change and development in the democratic societies. Law is needed for taking any action affecting any body's person, property or any other right. The demand for law is practically insatiable to-day. This generates a great pressure of work on the legislature which not only makes

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laws but also discharges several other functions, such as, supervising the government, discussing and influencing its policies, discussing proposals for taxation and expenditure, ventilating people's grievances, holding debates on matters of national importance. During the laissez faire era, when the government discharged only limited functions, the legislature could possibly enact all legislation that was needed, but to-day it cannot cope with all the legislative work by itself unaided. A method to economise legislative time is delegated legislation. The legislature saves time by confining itself to laying down broad policies and principles in the law it enacts and leaving the task of shaping and formulating details to the concerned administrative agency. If the legislature were to attempt enacting comprehensive laws including not only policies but all necessary details as well, its work-load would become so heavy that it may not be able to enact the quantity of law on diverse subjects which the public demands of it and which only the legislature can enact. It is, therefore, essential to free the legislature from the burden of formulating details so that it can better devote its time to the consideration of the essential principles and policies. As the Committee on Ministers' Powers (CMP hereafter)27 states tersely: "The truth is that if Parliament were not willing to delegate law-making power, Parliament would be unable to pass the kind and quantity of legislation which modern public opinion requires.28 At another place, the Committee talks of the practice in these words: "It is a natural reflection, in the sphere of constitutional law of changes in our ideas of government which have resulted from changes in political social and economic ideas, and of changes in the circumstances of our lives which have resulted from scientific discoveries."29 "The practice of empowering the executive to make subordinate legislation within the prescribed sphere has evolved out of practical necessity and pragmatic needs of the modern welfare state".30 Also, if each piece of legislation enacted by the legislature were to be complete with all details, the legislation would itself become very prolix and cumbersome, difficult to understand by the common man. Further, since most of the present day activities of the state relate to socio-economic matters, legislation tends to be quite technical and complex and expert knowledge is required to work out the details to fully implement the policy in view. This can be done better by specialists in the administration rather than by legislators who are mostly generalists and not experts in these matters. There are also occasions when it is difficult to work out beforehand and include in the bill all details which may be needed to implement large and complex schemes of reform and, therefore, the task of evolving the necessary details in this regard has to be left to the administration. At times it may be deemed advisable to hold consultation with the interests affected before all details of the policy are worked out, and the administration may be depended upon to do so before finalising the details.31 Apart from the above mentioned factors, the system of delegated legislation has become popular because it has the advantages of flexibility, elasticity, expedition and opportunity for experimentation. The procedure for making rules is much simpler than that required for enacting statutes. Usually, many present day socio-economic schemes at the legislative stage are experimental in nature and it is difficult to foresee what problems would arise in future in working them out in practice. Many a time, legislation is rushed through the legislature in a hurry in the hope that through experimentation the executive would be able to find the right solutions for problems at hand. This means that details of these schemes need to be constantly adjusted in the light of experience gained in the course of their implementation. If details were to be included in the statute itself, then each time a change becomes necessary in the details, the legislature will have to pass an amending legislation. It would waste much time, and increase pressure on the legislature, if every time need is felt to effect adjustments in a scheme, the matter is referred to the legislature. The technique of delegated legislation avoids such a situation and introduces flexibility in legislative as well as administrative processes for it provides a mechanism for constant adaptation to unknown future conditions, and utilisation of experience, without the formality of the legislature enacting amending legislation from time to time. As Wade and Phillips point out, delegated legislation fulfils the need of modern times "that something less cumbrous and more expeditious than an Act of Parliament shall be available to amplify the main provisions, to meet unforeseen contingencies and to facilitate adjustments that may be called for after the scheme has been put into operation".32 In the words of the CMP: "The practice ... permits of experiment being made and, thus affords an opportunity, otherwise difficult to ensure, of utilising the lessons of experience".33 A modern society is faced many a time with emergency situations when a sudden need is felt for legislative action. There may be threats of aggression, breakdown of law and order, strikes, etc. Such situations cannot be met adequately unless the executive has standby powers. The legislature cannot meet at short notice and

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turn out legislation on the spur of the moment. It is, therefore, a desirable expedient to pre-arm the government with necessary powers to take action at a moment's notice by promulgating the needed rules and regulations according to the needs of the situation. Similarly economic conditions change so fast in modern times that standing powers may be needed to enable the executive to deal quickly with any situation. Because of these factors, delegated legislation, as a technique of modern administration, is now regarded as useful and indispensable.34 There was a time when delegated legislation was criticised as undemocratic and an extension of despotic powers of the bureaucracy. But, in course of time, much of the antipathy towards it has died down. The CMP Report in 1932 gave a verdict in favour of its inevitability in modern administrative process. It stated at one place: "But in truth whether good or bad the development of the practice is inevitable".35 It said at another place: "... the system of delegated legislation is both legitimate and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards."36 In India, the Supreme Court has reiterated the inevitable need of delegated legislation in the modern administrative process in the following words:37 "Now, the increasing complexity of modern administration and the need for flexibility capable of rapid readjustment to meet changing circumstances which cannot always be foreseen, in implementing our socio-economic policy pursuant to the establishment of a welfare state as contemplated by our Constitution, have rendered it convenient and practical, nay, necessary, for the legislatures to have frequent resort to the practice of delegating subsidiary or ancillary powers to delegates of their choice. The parliamentary procedure and discussion in getting through a legislative measure in the legislatures is usually time-consuming. Again such measures cannot provide for all possible contingencies because one cannot visualize various permutations and combinations of human conduct and behaviour. This explains the necessity for delegated or conditional legislation. Due to the challenge of the complex socio-economic problems requiring speedy solution the power of delegation has by now as per necessity become a constituent element of legislative power as a whole."

In another case,38 the Court has observed: "Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d' etre for delegated legislation. That is what makes delegated legislation inevitable and indispensable.

The reasons for giving delegated power to the Government to make rules are many, but the most prominent and dominant reasons are: (i) (ii) (iii)

The area for which powers are given to make delegated legislation may be technically complex, so much so, that it may not be possible and may even be difficult to set out all the permutations in the statute. The Executive may require time to experiment and to find out how the original legislation was operating and thereafter to fill up all other details. It gives an advantage to the Executive, in the sense that a Government with an onerous legislative time-schedule may feel tempted to pass skeleton legislation with the details being provided by the making of rules and regulations.39

3. NEED FOR SAFEGUARDS In spite of its usefulness and indispensability, delegated legislation suffers from several defects as well. To some extent, it does involve abandonment of its function by the legislature and enhancement of powers of the Administration. Power flows from legislature to bureaucracy.40 The legislature cannot delegate its essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. What is permitted is the delegation of ancillary or subordinate legislative function, or, what is fictionally called, a power to fill up the details.41 Many a time, the legislature passes Acts in "skeleton" form containing only the barest of general principles and thus leaves to the executive the task of not only laying down "details" but even that of formulating and determining

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principles and policies. The legislature often uses wide, subjectively worded provisions, giving power to the delegate to make such rules as appear to it to be "necessary" or "expedient" for the purposes of the Act without laying down any standards to guide the discretion of the delegate and the delegate gets a blank cheque to make whatever regulations it likes. According to the CMP, 'skeleton legislation' denotes a power to make delegated legislation which is of extremely wide character and which lays down no limits on the range and scope of the power conferred on the Administration. In Kunj Behari Lal Butail v. State of H.P.,42 the Apex Court held that a delegated power to legislate by making rules "for carrying out the purposes of the Act" [here H.P. Ceiling on Land Holdings Act, 1872 (19 of 1973)] is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself. The executive becomes powerful as it secures powers to affect the life, liberty and property of individuals without the democratic restraints of a debate in the legislature as happens when a statute is enacted through the legislature. In case of legislation through the legislature several democratic safeguards are available. Discussion on a bill in the legislature secures publicity; a lot of discussion takes place on the principles underlying the bill both within and outside the legislative chamber which can gauge the public mood. Legislation thus keeps in harmony with the public sentiment. But this salient and democratic safeguard is not available in the case of delegated legislation which is drafted in government chambers by some anonymous civil servant and mostly promulgated all of a sudden without much publicity or notice. No one may come to know anything about it until it is notified. There may be no public discussion, no press criticism and no public opinion on it. The system thus becomes undemocratic giving rise to the danger that the government may misuse its powers. At any rate, there is widespread suspicion and apprehension that civil and personal liberties may be endangered by an unbridled use of the technique of delegated legislation by the Administration. Therefore, though the technique of delegated legislation has definite advantages, has become generally acceptable, and the exigencies of modern administrative process make its use necessary, yet the dangers inherent in its indiscriminate use cannot be lost sight of. The power of delegated legislation is in no way of less significance than the power of the legislature to legislate, for it affects the rights of the people just as vitally as legislation by a legislature. There is danger involved in enacting measures without public debate or consultation. It therefore becomes necessary to evolve proper safeguards to minimize the feeling of insecurity and distrust generated from an apprehension that the government may misuse its powers of delegated legislation, to ensure that the statutory powers are exercised and statutory functions performed properly and that the government is not able to capriciously injure private rights of person or property. Therefore, the basic problem in the area of delegated legislation is that of devising suitable controls and safeguards so that the advantages of the technique of delegated legislation may be available, while the dangers and risks of abuse inherent therein may be minimized. The focus of the inquiry is thus shifted from the question of desirability of delegated legislation to that of its control and safeguards. The question to-day is not whether there should be delegated legislation, but subject to what safeguards it should be resorted to. The controls over delegated legislation operate at two levels. First, at the point of delegation of power by the legislature. The question here is, how much power should the legislature be permitted to delegate? Should the legislature be completely free to delegate any amount of legislative power on the Administration, or should there be some restraints on the legislature in this respect? Secondly, control mechanism operates at the point of exercise of delegated legislative power by the Administration. The question here is subject to what restraints and safeguards should the delegate function in exercising the delegated legislative powers? In short, what control-mechanism should be put into being so as to minimize the hazards of the technique of delegated legislation? It may be noted that both levels of control are supplementary to each other. The efficacy of the control at the second stage, to a large extent, depends upon the first. If the legislature confers power in very broad terms, its exercise by the delegate cannot be effectively controlled later. If the legislature confers power subject to certain norms and standards, then the exercise of the power can be tested in the light of those norms, and any attempt by the delegate to deviate from those norms may be checked by voiding the delegated legislation produced by the delegate.43 Therefore, the CMP suggested: "The precise limits of the law-making powers, which Parliament intends to confer on a Minister should always be defined in clear language by the statute which confers it."44

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In the following pages, an attempt is made to discuss controls over delegated legislation at both the levels. 4. RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER (a) England There prevails in England the doctrine of sovereignty of Parliament which implies that Parliament has unlimited power to make any law, and that the courts cannot question a parliamentary law on any ground.45 This means that Parliament can delegate any amount of legislative power to an administrative agency. Therefore, no restriction exists on the capacity of Parliament to confer its law-making powers on anybody it pleases and to any extent it pleases. It is not necessary for Parliament to insert in a delegating statute any standard, policy, or norm for guiding the delegate in exercising the power conferred on him. The delegate can be left free to draft delegated legislation in any way he likes and to evolve his own policy or standards in exercising the delegated legislative power. It has often been suggested that Parliament should not confer power in too broad or general terms, that it should define the limits of the power being delegated or define the norms or standards in the enabling statutes subject to which the delegated power may have to be exercised, so that the delegate is not left free to use the power as he likes but may be restrained from misapplying the power. But, as the CMP has stated: "Legislative powers are freely delegated by Parliament without the members of the two Houses fully realising what is being done".46 However, the important point to note is that the remedy for such state of affairs lies in the hands of Parliament itself; it can itself control the delegation of power by it if it so pleases and there is no external agency to compel Parliament to prescribe any norms or standards in a delegating statute subject to which the delegated power may have to be exercised. (b) U.S.A. In the United States, the position is substantially different. The U.S. Congress functions under a written constitution, and the courts have power to interpret the Constitution and declare a congressional statute unconstitutional if it does not conform with their views of the Constitution. The U.S. courts have raised two theoretical objections against delegation of legislative power to the executive. One, on the basis of the doctrine of separation of powers, as discussed earlier,47 it has been argued that legislative and executive powers should not be mixed with each other but should be kept separate. Besides, the U.S. Supreme Court has also invoked the doctrine of delegatus non potest delegare against delegation by Congress. The doctrine means that -a delegate cannot further delegate its powers. The courts thus argue that the Congress, being a delegate of the people, cannot further delegate its law-making functions to any other agency.48 In the U.S.A., the question of delegation of legislative powers thus involves a conflict of values. On the one hand, the theoretical considerations demand that the legislative function be kept aloof and distinct from the executive function. On the other hand, as already noted, the exigencies of modern government make it practically impossible not to have any delegation of legislative power and to concentrate all legislative power in the hands of the Congress which cannot possibly dispose of all legislative work itself in the sense of turning out comprehensive legislation complete in all details on every subject it undertakes to legislate upon. If Congress were not willing to delegate law-making power to some agency then it may be impossible for it to enact the kind and quantity of legislation which the country may need. Thus, pragmatic considerations have prevailed over theoretical objections and, in course of time, the courts have relaxed the rigours of the doctrine of separation of powers and permitted broad delegation of legislative power, subject to the rider that the Congress itself should lay down standards or policies for the guidance of the delegate, that delegation should not be vagrant and uncontrolled, and that Congress should not give a blank cheque to the executive to make any rules it likes for to do so would amount to an abdication of its functions by the Congress. Standards provide a measure to ensure that the delegate acts according to legislative will. If Congress transfers to others "the essential legislative functions with which it is vested", the statute doing so will be held unconstitutional. Therefore, the courts insist that the Congress should itself declare the policy regarding the subject-matter of legislation, and only the power to lay down details to effectuate that policy may be

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delegated to the Administration. The test, in the words of Justice Cardozo, is that "to uphold the delegation there is need to discover in the terms of the Act a standard reasonably clear whereby the discretion must be governed".49 The principle that authority granted by the legislature must be restricted by an adequate standard serves the theory of "separation" by ensuring that fundamental policy decisions must be made by the legislature and not by officials. Prescribing legislative policy is regarded as an "essential legislative function"; and this function must be discharged by the democratically elected legislature itself; it ought not to be left to any politically unresponsive delegate. Thus, Congress can delegate only "non-essential legislative functions". If the statute contains no standard to limit delegation of power, it amounts to giving a blank cheque to make law in the delegated area of authority and, thus, the agency, rather than the Congress, becomes the primary legislator.50 The working of the above rule can be illustrated with reference to two cases. In Panama Refining Co. v. Ryan,51 Congress authorised the President to ban oil in interstate commerce when produced in excess of the quota fixed by a State. The U.S. Supreme Court by majority held the Act unconstitutional, for the Congress had declared no policy, established no standards, and laid down no rule. There was no requirement, no definition of circumstances and conditions in which the transportation was to be allowed or prohibited. The President was given an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down, as he thought fit. Yakes v. U.S.52 is a case on the other side of the line. During World War II, the Office of the Price Administrator was set up to control prices. The relevant Act declared that the prices fixed ought to effectuate the declared policy of the Act to stabilise commodity prices with a view to prevent wartime inflation and its disruptive causes and effects. In addition, the prices fixed had to be fair and equitable. In fixing the prices, the administrator had to give due consideration to the prices prevailing within a designated base-period. The Act gave no direct answers to such basic questions: how much prices should be allowed to go up? Whether prices could be fixed below cost? What margin of profit should be allowed on a product? The delegation, though in effect extremely broad, was held valid for the Congress had stated the legislative objective and had prescribed the method of achieving that objective-maximum price-fixing--and had laid down the standards to guide the administrator's determination. The Court found that the standards prescribed were sufficiently definite and precise to enable every one to ascertain whether or not the administrator, in fixing the designated prices, had conformed to those standards. There are not many examples of the United States Supreme Court declaring Congressional legislation unconstitutional because of excessive delegation of legislative power. Only in three cases of significance has the delegation been held to be excessive so far.53 The exigencies of modern government have persuaded the Supreme Court to relent in its attitude towards delegation. The basic premise still remains that Congress cannot delegate legislative power without prescribing standards,54 but whether this test is satisfied or not by a statute is a matter for the Court to determine, and it has adopted a liberal attitude on this question. In many cases, very broad delegations have been upheld and very vague phrases have been held to be adequate as laying down standards, so much so that one commentator has remarked that "judicial language about standards is artificial".55 But still, the courts do reserve to themselves the power to declare delegation of legislative power unconstitutional if they feel that in a given case the delegation is too broad and indefinite. Till that extreme point is reached, courts permit delegation realising that the legislature to-day has to deal with complex socio-economic problems and it may not be practical for it to meticulously lay down standards for the delegate to follow. Although, by and large, the U.S. Supreme Court has emasculated the doctrine of much of its substance, nevertheless, the academic and judicial views are in favour of maintaining the doctrine that delegation by Congress should be accompanied by discernible standards. It is argued that the doctrine serves two primary functions. First, it ensures that the fundamental policy decisions will be made not by an appointed official but by the body immediately responsible to the people. Formulation of policy is the primary responsibility of the legislature which task is entrusted to it by the electorate. Secondly, it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged.56 Even though the Supreme Court has upheld broad delegations because of the exigencies of the government in modern times, the Court always reiterates the doctrine of excessive delegation. The doctrine has never been repudiated, though in its practical application the courts adopt a flexible approach. The existence of the doctrine may lead the court to read the delegating provisions narrowly to avoid constitutional problems.57 Also, the delegation of taxing powers to the executive would

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never be upheld as valid. In recent years, there have been calls for revitalization of the excessive delegation doctrine from many quarters, even from those who have no antipathy toward social legislation.58 In spite of the dilution of the theory of non-delegation in the U.S.A., there is a real doctrinal difference between England and the U.S.A. on the question of delegation. Though, in both countries, delegation of legislative power has come to be accepted as a technique of legislative and administrative process, and broad delegations have come to be permitted, yet, while in the U.S.A., in theory, the last word rests with the courts on the question as to how much delegation would be permitted in a given situation, in England it rests with Parliament as there is no constitutional limitation to restrain Parliament from assigning power where it likes, and how much it likes. The doctrine of excessive delegation in the U.S.A. has had some impact on the legislative process in so far as the Congress does seek to lay down some standards in the legislation delegating legislative power. (c) India The question of permissible limits of delegation of legislative power became important in Independent India. Just on the eve of independence, the Federal Court had held in Jatindra Nath v. Province of Bihar59 that there could be no delegation of legislative power in India beyond "conditional legislation"--a concept referred to later.60 But then, after the inauguration of the new Constitution in 1950, the question was raised whether the legislature in Independent India should be restricted to this limited form of delegation, or should it be given a greater freedom to resort to this technique? If the legislature were to be permitted a greater freedom then the next question was, which of the two models--the British or the American which differ from each other rather fundamentally--should be followed in India? The courts could hold either that a legislature in India could delegate as much powers as it liked following the British model, or else that, like the American Congress, it could not give to the delegate unlimited powers, and that it should state the policies subject to which the delegate is to function in making delegated legislation. India and England have both parliamentary form of government in which the executive is also a part of the legislature and can be closely supervised by it. But the two countries differ in one significant respect, viz., while India has a written constitution, England functions mostly under an unwritten constitution. Also, while India, like the U.S.A., has a written constitution and the system of judicial review of legislation, these do not prevail in England. But then, while in the U.S.A., the presidential form of government is based on the principle of separation of powers, the Indian system does not follow that principle in the area of executive-legislative relationship. The parliamentary form of government is based not on separation, but on co-operation, rather unison, of the two organs. Because of these similarities and dissimilarities between the Indian, English and the American constitutional systems, it was open to the Supreme Court in Independent India to follow either the English or the American model on the question of delegation of legislative power. Further, the Constitution of India did not provide any clear guidance on the point as there is nothing in the Constitution either expressly prohibiting or permitting the legislature to delegate its legislative power to the Administration. Therefore, if the Supreme Court had to find any restrictions on the legislature in the matter of delegation, it had to be on the basis of some general theories and principles of constitutional law, but not on the basis of any specific provision in the Constitution. The Supreme Court of India was faced with all these questions in the famous case of In re Delhi Laws Act,61 and the Court opted for the American model. In Delhi Laws Act, 1912, In re,62 while dealing with the reference under Article 143 of the Constitution, the Supreme Court opined that keeping the exigencies of the modern Government in view, Parliament and State Legislatures in India needed to delegate legislative power, if they were to be able to face the multitudinous problems facing the country, as it was neither practicable nor feasible to expect each of the legislative bodies to enact complete and comprehensive legislation on all subjects sought to be legislated upon. It was also observed that since the legislatures in India derive their powers from a written Constitution, they could not be allowed the same freedom as the British Parliament has in the matter of delegation. In this case,63 KANIA, C.J. made following observations: "A fair and close reading and analysis of all these decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without stretching and straining the words and expressions used therein lead me to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and

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regulations for carrying the enactment into operation and effect, and while a legislature has power to lay down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is described as conditional legislation the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but even in those cases the suggestion that there was delegation of 'legislative functions' has been repudiated. Similarly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legislation is equally upheld under all the Constitutions. In my opinion, therefore, the contention urged by the learned Attorney General that legislative power carries with it a general power to delegate legislative functions, so that the legislature may not define its policy at all and may lay down no rule of conduct but that whole thing may be left either to the executive authority or administrative or other body, is unsound and not supported by the authorities on which he relies. I do not think that apart from the sovereign character of the British Parliament which is established as a matter of convenition and whose powers are also therefore absolute and unlimited, in any legislature of any other country such general powers of delegation as claimed by the Attorney General for a legislature, have been recognised or permitted."

Keeping in view the parliamentary position in India in juxtaposition with the British system, His Lordship proceeded to State:64 "Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a Court of law. Therefore from the fact that the British Parliament has delegated legislative powers it does not follow that the power of delegation is recognised in law as necessarily included in the power of legislation. Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is primarily cast on the legislatures? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions? I am unable to read the decisions to which our attention has been drawn as laying down that once a legislature observes the procedure prescribed for passing a bill into an Act, it becomes a valid law, unless it is outside the legislative lists in the Seventh Schedule prescribing its respective powers. I do not read Articles 245 and 246 as covering the question of delegation of legislative powers. In my opinion, on a true construction of Articles 245 and 246 and the lists in the Seventh Schedule, construed in the light of the judicial decisions mentioned above, legislation delegating legislative powers on some other bodies is not a law on any of the subjects or entries mentioned in the legislative lists. It amounts to a law which states that instead of the legislature passing laws on any subject covered by the entries, it confers on the body mentioned in the legislation the power to lay down policy of the law and make a rule of conduct binding on the persons covered by the law."

In the same reference,65 FAZL ALI, J. observed: "There can be no doubt that if the legislature completely abdicates its functions and sets up a parallel legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its power. In other words, there will be delegation in the strict sense if legislative power with all its attributes is transferred to another authority. But the Privy Council have repeatedly pointed out that when the legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legislature by which the subordinate authority was entrusted with the power to do the act. In some of the cases to which reference has been made, the Privy Council have referred to the nature and principles of legislation and pointed out that conditional legislation simply amounts to entrusting a limited discretionary authority to others, and that to seek the aid of subordinate agencies in carrying out the object of the legislation is ancillary to legislation and properly lies within the scope of the powers which every legislature must possess to function effectively."

As to delegation of legislative powers, His Lordship reached the following conclusions66: "(1) (2)

The legislature must normally discharge its primary legislative function itself and not through others. Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilise any outside agency to any extent it finds necessary for doing things which it is unable to do itself or finds it inconvenient to do. In other words it can do everything which is ancillary to

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(3) (4)

and necessary for the full and effective exercise of its power of legislation. It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature. The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 'abdication and self-effacement'."

In the case on hand, the M.P. Reorganisation Act of 2000 as enacted by Parliament was full and complete when it left the legislative chamber. There was, therefore, no question of delegation of legislative power by the legislature in favour of the executive. What was left to the executive was merely to decide whether to continue the Administrative Tribunal or to abolish it. The State Government, after considering the facts and circumstances, decided not to continue the Tribunal which was within the power of the State Government and, hence, no objection can be raised against exercise of such power. The Supreme Court was of the opinion that there is no excessive delegation by Parliament to the State Government which would be hit either by the provisions of the Constitution or the law laid down in Delhi Laws Act, 1912, In re,67 or other decisions of this Court.68 There were a few (Delhi being one of them) Part C States, under the direct administration of the Central Government, without having a legislature of their own. Parliament had to legislate for these States. As it was very difficult for Parliament to find the necessary time to do so in view of its other manifold engagements, Parliament passed a law, the Part C States (Laws) Act, 1950. It authorised the Central Government to extend to any Part C State, with such restrictions and modifications as it thought fit, any enactment in force in a Part A State, and while doing so it could repeal or amend any corresponding law (other than a Central law) which might be operative at the time in the Part C State concerned. Undoubtedly, it was a very sweeping kind of delegation. The Government could extend to a Part C State any law made by a State Legislature (and not by Parliament), at any time (not only laws prevailing in 1950 but even those made subsequently), and even modify the law before extension. And if there was already a law in force in the Part C State on the point, it could either be repealed or modified when the law was being extended. The Supreme Court was called upon to adjudge the validity of this provision. Seven Judges participated in the decision and seven opinions were delivered exhibiting a cleavage of judicial opinions on the question of limits to which the legislature in India should be permitted to delegate legislative power. Yet, on two points there was a unity of outlook amongst all these opinions. First, keeping the exigencies of the modern government in view, Parliament and State Legislatures in India need to delegate the legislative power if they are to be able to face the multitudinous problems facing the country, for it is neither practicable nor feasible to expect that each legislative body could turn out a complete and comprehensive legislation on all subjects sought to be legislated upon. Second, since the legislature is the creature of, and derives its powers from, the written Constitution which creates it, it could not be allowed the same freedom as the British Parliament in the matter of delegation, and that some limits should be set on its capacity to delegate. The Constitution entrusts the legislative power to the cumulative judgment of the legislature, and, therefore, it just cannot delegate the power in its entirety to someone else without exercising its judgment at all. Thus, the Court rejected the extreme contention of the Government that an unlimited right of delegation is inherent in the legislative power itself. But the Judges differed on the question as to what were to be the permissible limits within which an Indian legislature could delegate its legislative power? One view propounded was that the Indian legislature could delegate its power to any extent subject to the limit that it did not efface itself or abdicate its powers, which meant that the legislature should never give up its control over the delegate; that it must not destroy its own legislative power; it must retain in its hands the ultimate control over the authority so as to be able to withdraw the delegation whenever the delegate did something wrong or foolish. The other view which approximated to the American approach, and which in theory at least is somewhat more restrictive than the first, was that the legislature should not delegate its essential legislative function which comprised the formulation of policy and enacting it into a binding rule of conduct. The Constitution having

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chosen to vest legislative power in the elected representatives of the people, they must at least discharge the essential legislative function themselves and not leave the entire legislative power to the executive. That meant that the legislature should lay down standards or policy in the delegating Act and the delegate may be left with the power to execute the policy. The majority was in favour of adopting the second view. By a majority, the specific provision in question was held valid subject to two riders: (1) that part of it was bad which authorised the government to repeal a law already in force in a Part C State; (2) the power to effect modifications in a state law in its application to a Part C State envisaged only such modifications as did not change the underlying policy of the law sought to be extended. The Delhi Laws Act case achieved two ends: (1) it legitimized delegation of legislative power by the legislature to administrative organs; and (2) it imposed an outer limit on delegation by the legislature. This case may be regarded as a notable example of judicial creativity. First, the Court had to get out of the limiting and restrictive doctrine of conditional legislation. Then, the Court had to make a choice out of the two alternatives before it on the question of delegation of legislative power. Nevertheless, the Court selected the alternative seeking to impose some restraints on the legislatures in the matter of delegation. The Court did not want to concede a blank cheque to a legislature to delegate as much legislative power as it would like to the executive. This choice was made by the Court consciously with a view to promote democratic values in the country. But the theoretical justification for this judicial approach could not be the same as in the U.S.A. The Supreme Court Judges repeatedly emphasized that in India the theory of separation of powers does not operate in the area of legislative-executive relationship. Also, the theory accepted in the U.S.A. that the legislature being a delegate of the people cannot further delegate because of the maxim delegatus non potest delegare was rejected by the Judges for India as being "not a sound political theory." The majority therefore developed an alternative theory: a legislature in India functions under a written constitution and so it cannot enjoy the same freedom as the British Parliament in the matter of delegation because of Britain's unwritten constitution. The result of this approach is that while an Indian legislature can delegate legislative power, the final say in this respect rests with the courts. If the court feels that unduly large amount of legislative power is being conferred on an administrative authority in any specific instance without adequate checks, it can cry a halt to the process of delegation. In course of time, through a series of decisions, the Supreme Court ratified the proposition that a legislature can delegate its legislative power subject to its laying down the policy, principle or standard in the legislation subject to which the legislative power can be exercised by the delegate. Otherwise, the law will be bad on account of excessive delegation. In a number of cases, the courts have applied, confirmed and reiterated this doctrine of excessive delegation. Some of these cases are noted below under suitable headings. While the question seemed to be settled in the Delhi Laws Act, and a few subsequent cases, it was again opened in Gwalior Rayon.69 The point of debate in the case was whether the doctrine of excessive delegation be maintained, modified or given up. Mathew, J. propounded the theory that so long as Parliament retains the power to repeal the delegating provision, it retains ultimate control over the delegate and so it does not abdicate the legislative function. Therefore, there should be no objection to delegation howsoever broad its extent. The key to his thinking is to be found in his following observation in his opinion in the case: "The hunt by court for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble is not an edifying spectacle."70 It is thus clear that Mathew, J., was pleading for the dilution of the doctrine of excessive delegation as he felt dissatisfied at the flexible way the doctrine had been applied hitherto by the Supreme Court, for, in order to uphold legislation against the argument of excessive delegation the Court had gone to the farthest limit in some cases to find the legislative policy underlying the statute in question. The whole judicial exercise thus smacked of artificiality. But the question is whether this should lead to applying the doctrine in a more meaningful manner or abolishing the doctrine itself as Mathew, J. was pleading. However, the majority on the Bench did not agree with Mathew J.'s approach. The majority reiterated the proposition that when a legislature confers power on an authority to make subordinate legislation, it must lay down policy, principle or standard for the guidance of the authority concerned. Justifying the principle, Khanna, J., observed on behalf of the majority. "At the same time it has to be borne in mind that our constitution-makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The rule against excessive delegation of the legislative authority

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flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the view of the individual officers or other authorities, however competent they may be for that of the popular will as expressed by the representatives of the people."71 Mathew, J.'s view would have meant a complete emasculation of the doctrine of excessive delegation; it would be tantamount to saying that a legislature can delegate as much legislative power as it desires without any semblance of restriction. Rejecting this view, the majority pointed out that acceptance of Mathew, J.'s view would lead to startling results. The dangers inherent in his approach were pinpointed by the majority thus: suppose the crime situation in the country deteriorates. Can Parliament pass a law saying that henceforth criminal law enforced in the country would be such as is framed by a designated officer? Although Parliament still has the power to repeal the provision, yet can such a blanket delegation of legislative power be accepted? The weakness in Mathew, J.'s approach is his lack of appreciation that after Parliament has delegated power, it cannot, in a practical sense, control it through its power of repealing the law. Because of the party system, to-day's legislature passes no law without the initiative and consent of the executive and it is highly improbable that the executive would ever ask Parliament to repeal a provision delegating legislative power to itself because it has misused the power. It is illusory to believe that a legislature will ever repeal, without executive consent, a law delegating legislative power on the ground that the delegated power has been improperly used by the delegate. This will amount to a vote of censure in the government of the day and eventually lead to its fall.72 For all practical purposes, Mathew, J.'s thesis would have resulted in uncontrolled delegation. The majority view expressed in Gwalior Rayon was reiterated by a five Judge Bench of the Supreme Court in KS.E. Board v. Indian Aluminium.73 The Court has reiterated the principle of excessive delegation in Kunjabmu.74 Explaining the principle of excessive delegation the Court has pointed out that "the power to legislate carries with it the power to delegate," but "excessive delegation may amount to abdication" and "delegation unlimited may invite despotism uninhibited". Thus, the following theory has been evolved:75 "... the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy."

In State of Mahrashtra v. Indian Medical Association,76 the Supreme Court held that in granting approval or permission to a private management to establish a medical college as contemplated under Section 64 of the Maharashtra University of Health Sciences Act, 1998 and in issuing Essentiality Certificate under Para 3 of the Medical Colleges Regulation, 1993, the State Government acts as a sovereign and discharges its constitutional obligation. The Government can neither delegate this sovereign/essential function to any other authority nor can it create a statutory authority under a State Act. As a result of these and other pronouncements, the doctrine of excessive delegation is well established in India. Thus, while delegating legislative power, the legislature must lay down legislative policy, standards or guidelines for the delegate to follow.77 It may be interesting to note that both in America and India, the doctrine of excessive delegation is purely a judge-made doctrine emanating from some of the basic postulates on which a written, democratic constitution is based. The American and Indian doctrines though practically congruent are yet based on different postulates. The American doctrine is based on the theory of separation of powers between the legislature and the executive, while the Indian doctrine is based on the theory of constitutional trust in the legislature. As an example of invalidation of a statutory provision delegating legislative power on the ground of excessive delegation, reference may be made to Harakchand.78 S. 5(2)(b) of the Gold Control Act, 1968, empowered the Gold Administrator, so far as it appeared to him to be necessary or expedient for carrying out the purpose of the Act, to regulate the manufacture, distribution, use, disposal, consumption, etc. of gold. The Supreme Court characterised the power conferred on the Administrator by the provision in question as 'legislative' in character and further declared it invalid because it was very wide and suffered from the vice of 'excessive delegation'. The Court pointed out that under S. 114 of the same Act, power of delegated

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legislation was conferred on the Central Government as well, but while the rules made by the Government were required to be laid before each House of Parliament, there was no such obligation imposed in respect of the rules made by the Administrator under S. 5(2)(b). The power of the Administrator was not subjected to any procedural safeguard while that of the Government was, and thus the power of the Administrator was even broader than that conferred on the Government. The delegation of essential legislative power of the principal to the delegatee would amount to abdication of its legislative power and, if it is bereft of any guidelines, then it is unsustainable in the eye of the law.79 In N. Vendkateswara Rao v. S.T.A.,80 the Supreme Court held that it is true that the clause (1) of Section 58 of the Motor Vehicles Act, 1988 indicates and gives an impression that the Central Government has abdicated its discretion of rating the gross vehicle weight and axle weight in favour of the manufacturer but the explanatory note added by the Govt. clarifies the position that the weight testing agencies should have to act in conformity with the provisions of the Act and the Rules and should certify accordingly. On the other hand, coming to the practical application of the doctrine to concrete situations, in innumerable cases broad delegation of legislative power has been upheld. On the whole, the courts adopt a tolerant, or rather an ambivalent, attitude in this matter. The courts do permit a good deal of latitude to the legislature in the matter of delegation of legislative power, hardly ever demanding that the legislature lays down policies or standards in the legislation in concrete terms to guide the delegate in making delegated legislation. While the Supreme Court invariably reiterates the doctrine that delegation of legislative power is valid only if the delegating statute specifies the policies subject to which the delegate is to exercise its rule-making powers, in actually applying the doctrine to any specific legislation, the Court has diluted its efficacy a great deal and exhibited anxiety to uphold the legislation against a challenge on the ground of excessive delegation. The Supreme Court usually leans towards the validity of the delegating provision. To uphold broad delegation against the charge of excessive delegation, the Supreme Court adopts several strategies. One, and this is the most usual one, is for the Court to find principles and policies within or without the statute concerned subject to which the delegation is made. Thus, the Court has upheld very broad and general delegation treating vague statements in the law as amounting to an adequate policy statement. The Supreme Court has sought to read policy in the preamble to the Act in question, or in the delegating provision itself, or in any other provision of the concerned statute, or in the scheme or subject-matter of the concerned statute; at times even in the previous statute which the statute in question may have repealed or replaced,81 or even in the rules which the Act may have adopted from the past.82 At times, the Court has itself supplied or rationalized the policy when the same may not be discernible from the face of the statute, and to do so has gone into the legislative history of the legislation, affidavits filed by the officers in support of the impugned Act, or any other supporting material. At times, the Court has met the demands for more definite policy statement by the argument that the subject-matter of the legislation is such that no more guidance could possibly be given to the delegate. At times, the Court treats the purpose for which legislative power is delegated as the policies underlying the Act. It was this kind of judicial attempt to which Mathew, J., took exception as noted above.83 Two, at times, the Court upholds broad delegation of legislative power if the statute in question contains procedure for the delegate to follow in making delegated legislation. The argument is that with procedural safeguards woven in the statute, uncontrolled legislative power has not been delegated and this makes delegation valid. Three, the Court at times upholds broad delegation by resorting to the argument that in socio-economic and welfare legislation seeking to promote the directive principles of state policy a generous degree of latitude ought to be permissible to the legislature in the matter of delegation.84 Recently, the Supreme Court has adopted another strategy for the purpose of upholding broad delegation. S. 58-A of the Companies Act, 1956, empowers the Central Government to prescribe the limits up to which, the manner in which, and the conditions subject to which, deposits may be invited or accepted by the non-banking companies. Upholding the validity of S. 58-A in Delhi Cloth and General Mills Co. Ltd. v. Union of India,85 against the challenge of excessive delegation, the Supreme Court found sufficient guidance in the law for the exercise of the rule-making power. The Court observed: "The policy is definite, guidelines are available from the history of legislation and Companies Act taken as a whole and one cannot shut one's eye to articulated sickness in private sector undertakings all around so that this feeble measure extending only a semblance of protection can be struck down as arbitrary or as violating the permissible limits of delegated legislation."

The above statement exhibits the strategy adopted by the Court to uphold broad delegation of legislative

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power. The policy to guide the delegate is found not so much in the Act itself, but in the history of the legislation, in the Companies Act, and other factors external to the Act. Further, having said this, the Court then mentioned one more factor to uphold S. 58-A, viz., that the Act contains a provision for laying of rules before both Houses of Parliament and that the Houses have power to suggest modifications in the proposed rules. The Court deemed this control of Parliament as "sufficient to check any transgression of permissible limits of delegated legislation by the delegate." On the basis of the laying requirement, the Court held that Parliament has not abdicated its power.86 The Court has again resorted to the 'laying requirement' to ward off challenge to S. 80-J of the Income Tax Act on the ground of excessive delegation in Lohia Machines Ltd. v. Union of India.87 This kind of a ruling raises some serious questions for a student of Administrative Law. As is discussed later,88 in practice, the laying requirement (other than that of the affirmative type) does not lead to any effective Parliamentary supervision over delegated legislation. Further, now-a-days, it has become a standard legislative practice in India to include a standard laying formula in each and every statute enacted by Parliament. Therefore, if the 'laying' provision comes to be regarded as an argument to uphold broad delegation, then the doctrine of excessive delegation will be completely annihilated, and all restraints on Parliament in the matter of delegation will become in-efficacious. It also needs to be noted that in the context of the doctrine of ultra vires, the Supreme Court has already declared that laying before Parliament does not affect the jurisdiction of the courts to pronounce upon the validity of the rules.89 It is therefore suggested that laying ought to be kept out of the reckoning by the Court while assessing whether a provision suffers from excessive delegation or not, otherwise it would amount to giving up the substance for a shadow. However, in Quarry Owners' Assn. V. State of Bihar,90 the sub-section (1) and (3) of Section 28 of the Mines and Minerals (Regulation and Development) Act, 1957, providing for laying of every rule and notification issued by the Central Govt. and State Govts. respectively before each of Parliament and State Legislature were considered by the Supreme Court. The sub-section (3) provides for mere laying down of the rules or notifications issued by the State Govt. The Supreme Court observed that when any statute requires mere laying of any notification or rule before the legislature its executive, viz., the State Govt. comes under the scrutiny of the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the jurisdiction over the same, each member of the House, subject to its procedure gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or notifications may not be under the purview of its modification, such Members may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit on any such other matter. Short of modification power, it has right even to condemn the Ministry. This positive control of the House over the executive makes even mere laying to play a very vital and forceful role which keeps check over the State Govt. concerned. The Court found that the notification required to be placed before each House if the Legislature was not so placed and directed the same to be placed at the earliest. However, the provisions being directory, the notification was upheld. However, in CBI v. Ravi Shankar Srivastava,91 it was held that the letter, rescinding the impugned notification, was allegedly simply an interdepartmental communication and it was not established that the person writing the letter could take the decision to rescind the said notification and even authority to write the letter was not indicated, thus not meeting the requirements of Art. 166 of the Constitution and hence it was not even conceptually a notification. As the following discussion will show, in the matter of applying the doctrine of excessive delegation, the courts show a good deal of deference to legislative will and judgment. In effect, as things stand to-day, the legislature in India does not seem to be much circumscribed, by the judicial dicta in the matter of delegation as a careful drafting of the legislation, with some broad and general statements thrown in, may pass muster in the judicial view as policy statements to uphold legislation. In effect, at present, the doctrine of excessive delegation has more of a symbolic value or is of a formalistic nature. During the last forty years it is only rarely that legislation has been invalidated or the ground of excessive delegation. As the Supreme Court has stated in Ramesh Birch recently: "faint glimmerings of policy" are sufficient to uphold a law against the challenge of excessive delegation.92 There may be some reasons for this permissive and flexible judicial approach. The courts realise that if they apply the doctrine of excessive delegation in a rigid, theoretical or doctrinaire manner, rather than in a pragmatic manner, then many statutes may have to be declared to be invalid. The courts also appreciate that in the modern complex world, administrative process cannot do without broad delegation of legislative power and that it may not always be possible for the legislature to formulate minute and specific standards for the executive to follow. At times, the factors may be so variable that it may be difficult to mention them in the legislation. The courts also do not wish to invalidate

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socio-economic legislation lest they should be dubbed as reactionary and conservative stalling social and economic progress. But, in spite of all these considerations, there does seem to be some scope for improvement in this respect. Every legislation is based or some policy; it is to implement some policy goals that a law is enacted. There seems to be no reason therefore as to why the policy goals cannot be stated in the preamble to the statute for the guidance not only of the administrators but even of the general public. As it is, an unfortunate result of the permissive judicial attitude has been that the legislature never cares to formulate principles and policies underlying a legislation with any specificity even when it may be possible to do so. The necessity of the legislature's delegating its powers in favour of the executive is a part of legislative function. It is constituent element of the legislative power as a whole under Article 245 of the Constitution. Such delegation of power, however, cannot be wide, uncanalised or unguided. The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegate to act within the framework of the statute. The principle on which the power of the legislature is to be exercised is required to be disclosed. It is also trite that essential legislative functions cannot be delegated. The procedural powers are, therefore, normally left to be exercised by the executive by reason of a delegated legislation.93 The power of delegation is a constituent element of the legislative power as a whole under Article 245 of the Constitution and other relative articles and when the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts as part of the Administrative Law. The legislature has to lay down the legislative policy and principle to afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. The essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. These principles also apply to taxing statues. The effect of these principles is that the delegate which has been authorised to make subsidiary rules and regulations has to work within the scope of its authority and cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act and has to restrict itself to the mode of implementation of the policy and purpose of the Act.94 Under the Constitution, the power to legislate is with the legislature. The said power of making laws, therefore, cannot be delegated by the legislature to the executive. In other words, a legislature can neither create a parallel legislature nor destroy its legislative power. The essential legislative function must be retained by the legislature itself. Such function consists of the determination of legislative policy and its formulation as a binding rule of conduct. But it is also equally well-settled that once the essential legislative function is performed by the legislature and the policy has been laid down, it is always open to the legislature to delegate to the executive authority ancillary and subordinate powers necessary for carrying out the policy and purposes of the Act as may be necessary to make the legislation complete, effective and useful.95 The delegatee of a legislative power can exercise the power of exemption in a fiscal statute.96 The Supreme Court held that the power conferred by Section 3 of the Bharat Petroleum Corporation Ltd. (Determination of Conditions of Service of Employees) Act, 1988 on the Central Government to frame the scheme [in this case the Bharat Petroleum Corporation Ltd. (Determination of Conditions of Service of Post-Nationalisation Refinery Employees Scheme, 1989] could be exercised for the purpose of making the service conditions of the Corporation's employees comparable with those of other public sector companies. This is not unguided power. The guidelines are contained within Section 3 itself.97 Under Section 15 of the Mines and Minerals (Regulation and Development) Act, 1957, the Central Govt. delegated the power to fix the rate of royalty/dead rent of the minor minerals to the State Government and there beingno statutory maximum limit of such rates, it was alleged that there was absence of purposeful guidance to the delgatee State Govt., hence the delegation of power was excessive or unbridled. The Supreme Court held that the State Govt. is the highest executive in the State and is responsible to the State Legislature and, through it, to the people which factor itself is an additional factor to keep the State Govt. under check not to act arbitrarily or unreasonably. When a policy is clearly laid down in a statute with reference to minor minerals, with the main object under the Act, being for its conservation and development, coupled with various other provisions of the Act guiding it, checking it and controlling it, then such delegation cannot be said to be unbridled.98 The Apex Court observed that in order to adjudicate, whether any delegation of power is unbridled or excessive, the historical background of similar provisions which preceded

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the impugned provision should be kept in mind, as it is also a relevant consideration.1 Section 9(a) of U.P. Secondary Education Services Commission and Selection Board Act, 1982 which enumerates the powers and duties of the Secondary Education Services Commission which included the preparation of guidelines on matters relating to the method of recruitment and promotion of teachers. The Section 9(a) was impugned on the ground of delegation of essential legislative function. The Supreme Court held that the essence of the essential legislative function lies in the legislature formulating a policy in respect of a matter within its field of legislation and translating it into words of an enactment to clothe it with binding authority. The legislative policy as could be gathered from the aforementioned provisions, appears to constitute a Commission, a statutory body consisting of experts and leave the question as to how it should proceed with the method of recruitment and promotion of teachers to the posts of Principals/Headmasters to that Commission. A plain reading of the clause (a) of Section 9 shows that the legislature has delegated the power of preparation of guidelines on matters relating to the method of recruitment of the Commission which is in the sphere of effectuation of the legislative policy rather than in the realm of laying down a legislative policy and the delgatee Commission is an expert and most competent body for the said purpose. Hence, on facts there is no delegation of essential legislature function.2 In Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board,3 it was contended that the State Electricity Board could impose only such conditions as might be found to be in an agreement between other ordinary licensees and consumers. The contention was that the Board could neither define "malpractices" nor prescribe an adjudicatory machinery for assessing and levying penal damages as such matters were essential legislative functions which could not be delegated to the Board. The Supreme Court observed that Section 49 of the Electricity (Supply) Act, 1948 empowered the Board to supply electricity on "such terms and conditions as it thinks fit." It may also frame uniform tariffs. The terms and conditions of supply are statutory in character. They can be invalidated only if they are in conflict with any provision of the Act or the Constitution. Clause 39 of the Terms and Conditions of Supply of electricity to consumers (notified by APSEB vide B PMS No. 690 dated 17.9.1975 does not violate any provision in the Electricity (Supply) Act, 1948. It is the statutory duty of the Board to arrange for the supply of electricity throughout the State. Unauthorised user, pilferage or malpractices by the consumers have got to be prevented. For ascertaining the loss and fixing the compensation, a uniform procedure has to be framed and machinery constituted and clause 39 is only doing that. Hence, the Apex Court found itself unable to accept the contentions. And in view of the provisions of the Section 4 of the U.P. Secondary Education Services Commission and Selection Board Act, 1982, the Supreme Court held that inasmuch as the UP. Secondary Education Services Commission, was an expert statutory body entrusted with the duty of selection of Teachers, Principal/Headmasters, it would be the most competent body to lay down guidelines on the matters relating to the method of recruitment and promotion of the teachers to the posts of Principals/Headmasters. Indeed laying down of guidelines by the Commission in such matters when it is so authorised by an Act of legislature or by statutory rules is a well-accepted principle and no exception can be taken to it.4 It was urged before the Apex Court that the conferment of power to issue a declaration under Section 3 of the Central Armed Forces (Special Provisions) Act, 1958 (as amended) on the Governor of the State is invalid since it amounts to delegation of power of Central Government and that for the purpose of issuing a declaration of disturbed area, the application of mind must be that of the Central Government with respect to the circumstances in which such deployment of armed forces is to take place and that conferment of the power to make a declaration of disturbed area on the Governor of the State cannot be held to be valid. The Apex Court observed that there is a basic infirmity in this contention. There is a distinction between delegation of power by a statutory authority and statutory conferment of power on a particular authority/authorities by the legislature. Under Section 3 of the Central Act there is no delegation of power of the Central Government to the Governor of the State. What has been done is that the power to issue a declaration has been conferred by Parliament on three authorities, namely, (1) the Governor of the State; (2) the Administrator of the Union Territory; and (3) the Central Government. In view of the information available at the local level the Governor of the State or the Administrator of the Union Territory is in a position to assess the situation and form an opinion about the need for invoking the provisions of the Central Act for use of the armed forces of the Union in aid of the civil power for the purpose of dealing with the situation that has arisen in the State or the Union Territory concerned. Moreover, the issuance of a declaration, by itself, would not oblige the Central Government to deploy the armed forces of the Union. After such a declaration has been issued by the Governor/Administrator, the Central Government would have to take a decision regarding deployment of the armed forces of the Union in the areas that has been declared as a "disturbed area". The

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conferment of power on the Governor of the State to make the declaration under Section 3 cannot, therefore, be regarded as delegation of power of the Central Government.5 Similarly, where under the Constitution of India, the power to administer the Union Territories vests in the President of India and he can exercise this power directly or through an Administrator appointed by him, the contention that the notifications issued by the Administrator (Chief Commissioner) of the Union Territory of Chandigarh were bad because it was a further delegation of power by the Central Govt. to the Administrator cannot be accepted. Actually, there was no delegation of power.6 Section 19 of the A.P. Co-operative Societies Act, 7 of 1964 provides for and governs the admission of members to the Toddy Tappers' Co-operative Society. The power under Section 19 is delegated to the Superintendent of Excise. Class (aa) of Section 21 of the Act provides that a person, who is not eligible for the membership of the Society under Section 19, is disqualified for being admitted as, and for being, a member of the Society. The Supreme Court held that under these circumstances, once the power of non-admission of a member of the Society under Section 19 has been engrafted in Section 21 and delegated for removal from membership as envisaged in Rule 20 of the A.P. Cooperative Society Rules, 1964, the Superintendent of Excise has power under Rule 20 which empowers him to consider the ineligibility for being removed from membership under Section 19, the power under which is delegated to the Superintendent. The inescapable consequence is that the subsequent disqualification for being a member also becomes available to him and it is not necessary that there should be an express separate conferment of power of the Registrar under Section 21 on the Superintendent of Excise.7 Section 86 of the Motor Vehicles Act, 1939 provideds for cancellation and suspension of the transport permits. Its sub-section (4) permits exercise of the power of cancellation and suspension of permits by the transport authority or any authority or person to whom such powers are duly delegated. The provision to enable delegation of these powers is obviously to make it workable in case the jurisdiction of the transport authority is so large that the need is of several persons to exercise this authority.8 Section 49 of the Electricity (Supply) Act, 1948 does not require the A.P. State Electricity Board to enter into a contract with the individual consumer. The Board, in performance of a statutory duty, supplies energy on certain specific terms and conditions framed in exercise of a statutory power. Probably in order to avoid any possible plea by the consumer that he had no knowledge of the Terms and Conditions of Supply, agreements in writing were entered into with each consumer. That will not make the statutory terms and conditions purely contractual.9 The cover page of the Indian Railways Conference Association Rules states that only the Rules in its Part 1 (Vol. 2) were issued under the authority of the Central Govt. and not the Rules in Part 1 (Vol. 1). The Apex Court held that that could not lead to a contrary inference that the Rules in Part 1 (Vol. 1) are not statutory as they have been issued by the Railway Board in exercise of the power under Section 29 or 54 of the Railways Act, 1890 delegated to it by the Central Govt.10 Regulations framed under Section 33 of the Medical Council Act, 1956 with the previous sanction of the Central Govt. are statutory and, if a regulation falls within the purposes mentioned under Section 33 of the Act, it will have a mandatory force.11 A statutory notification cannot be notified by issue of circular.12 A valid regulation once framed would be a part of the statute;13 so would be a rule validly framed.14 The Reserve Bank of India Staff Regulations, 1948 were framed with the sanction of the Central Govt. and are framed in exercise of the powers conferred by Section 58(2)(j) of the Reserve Bank of India Act, 1934. The Act empowers the Central Board to frame regulations with the sanction of the Central Govt. which is mandatory. The recommendations by the Board to amend the regulations were turned down by the Central Govt. Unless they are approved by the Central Govt., they have no binding force.15 Where the State Govt. has been entrusted with the rule-making power under an Act, the Central Govt. has no say in that matter and it cannot excise such power by resorting to its power "to remove difficulties". Rule-making power is a separate power which has noting to do with the power to remove difficulty. By reason of the power to remove difficulty or doubt, the Central Govt. has not been conferred with any legislative power. Hence, in the instant case, the Model Rules framed by the Central Govt. in purported exercise of power under Section 70 of the Juvenile Justice (Care and Protection of Children) Act, 2000, having no legal force, cannot be given effect to.16 The regulations framed by the Medical Council of India with respect to the qualifications for appointment as teachers in Medical Colleges are only directory in nature. It is really within the domain of the State Government to prescribe qualifications for appointment to various posts in State Services. Though recruitment to the State Medical Services falls within the purview of the State Government, they are expected to comply with the regulations made by the Medical Council in order to maintain high standard of medical education. Section 19-A of the Indian Medical Council Act, 1956 enables the Council to prescribe by making regulations minimum standards of medical education required for granting recognised medical qualifications by Universities or Medical Institutions in

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India and that would include prescribed minimum qualifications for appointment as teachers of medical education. As State Governments are thus expected to comply with the recommendations made by the Medical Council from time to time and if the State Governments comply with such recommendations irrespective of whether they are approved by the Central Government or not, it cannot be said that in doing so they have acted arbitrarily or illegally.17 It was held that a pre-amended rule as to the Railway Establishment was to be operative in a case where the selection process for the vacancies was completed before 1990 amendment in the Railway Establishment Manual.18 In State of Bihar v. Bal Mukund Sah,19 the Apex Court held that no rule or law made by the delgatee can supersede or override the powers exercised or the law made by the delegator of the power, the sovereign legislature. The Rules framed under one Act cannot have overriding effect on the provisions of another Act.20 The rules framed by the Secretary of the M.P. State in 1925 under Section 58(1) of the M.P. Land Revenue Code 20 of 1959 provided that in case the Central Govt. required land belonging to the State Govt., the Central Govt. would be liable to pay 25 times of the land revenue once as a one-time payment which was paid by the Central Govt. in respect of land transferred to it. The State Govt. claimed payment of further revenue from the successor-in-interest of the Central Govt. The Apex Court held that it could not claim beyond the rules.21 In Rajasthan Agricultural University v. Ram Krishna Vyas,22 it was held that the Agricultural University, being a body corporate having perpetual succession, had a separate legal entity and as such service rules framed by the Govt. would not be applicable to it unless those rules were specifically adopted by the University in accordance with the provisions of the Act by which the University was constituted. The Govt. of India in exercise of its power under Section 16(1)(g) of the General Insurance Business (Nationalisation) Act, 1972 framed a Scheme called the "General Insurance (Rationalisation and Revision of Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974". It was contended that, though it was meant for the benefit of workmen, they were not consulted. The Supreme Court held that in matters of legislative nature consultation is not required unless the law requires the same to be done.23 The Sales Tax Commissioner, by a notification, delegated his power under Section 23(4)(a) of the Orissa Sales Tax Act, 1947 r.w. Rule 80 of the Orissa Sales Tax Rules, 1947 to revise assessment orders passed by the Sales Tax Officers suo motu to the Assistant Commissioner in exercise of which the Asstt. Commissioner issued a show-cause notice to a party which he subsequently dropped. The Sales Tax Commissioner in purported exercise of the revisional power under the same provisions issued that party a show-cause notice in respect of the same cause. The Apex Court held that it is true that the Sale Tax Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power. That, by no stretch of imagination, can be construed to mean that once the orders of the Sales Tax Officer have been examined under the revisional power by the Asstt. Commissioner (the delgatee), the same orders can again be subjected to revisioal jurisdiction by the Sales Tax Commissioner. The power of the Commissioner (the delegator) has been exhausted by the Asstt. Commissioner (the delegatee) and the Commissioner cannot, in law, exercise the delegated power over again.24 It was held that the delegation of the enabling administrative power by the State Govt. to the State Public Service Commission to extend the joining period of the selected candidates was neither in derogation of the powers of the State Govt. and, in the absence of statutory rules to this effect, nor can be considered as self-destructive of its powers. Hence, in case the Govt. itself extended the joining period of any candidate on the basis of reasonableness of the request, the extension, in absence of any order by the Commission, cannot be said to be without authority in law.25 The regulation empowered the Chairman and Managing Director to exercise the power of review. As a result of a departmental injury penalty was imposed on an employee. The Executive Director who was for the time being also holding the charge of the offices of the Chairman and Managing Director enhanced the penalty in exercise of the power of review. It was held that exercise of such power by the Executive Director did not amount to exercise of a delegated power.26 It is now trite that draft rules which are made to lie in a nascent state for a long time cannot be the basis for making appointment or recommendation. Rules even in their draft stage can be acted upon provided there is

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clear intention on the part of the Government to enforce those rules in the near future.27 However, in Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana,28 it was held that draft rules can be invoked only when no rule is operative in the field, but a scheme which was never in existence and was only a draft scheme should not be and could not have been directed by the Court to be implemented for the benefit of a single individual.29 The rules, validly framed, should be treated as a part of the Act.30 The Code of Conduct for Ministers, issued in GOMS No. 1350, dated 26-7-1968 by the Govt of T.N. in the name of the Governor, not having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention thereof by the Chief Minister, cannot be construed to impose a legal prohibition against the purchase of property of the Government so as to give rise to a criminal offence under Section 169, IPC. In law, there must be a specific provision prohibiting an act to make it illegal.31 A Code of Conduct prescribed by the Government under certain notification by itself cannot be elevated to the level of law as has been rightly held by the Andhra Pradesh High Court in the case of Vidadala Harinadhababu v. N.T. Ramarao.32 Altough there are certain strong expressions used in the course of the said decision to the effect that " no Minister or Chief Minister can have the temerity to act contrary to such a Code" and it is binding on the Minister, still it cannot be elevated to the level of prohibition under law. Following observations made by a Full Bench of the A.P. High Court in this case are quite apposite: "21. The Codes of Conduct issued by the Union Government and the State Government are not statutory in nature. They lay down rules of conduct which the ministers must observe. They are in the nature of guidelines. They also prescribe the authority who should ensure compliance with the said Code; it is to him that the statements contemplated by paragraphs 1(a), 2(a) and 2(e) have to be furnished. Even the procedure to be followed in the case of an alleged or suspected breach of the Code is also left to the discretion of such authority. Having regard to the facts and circumstances of the Code, the 'authority' shall evolve the appropriate procedure. Evidently, the nature of action to be taken on such enquiry is also left to him. Not being statutory, Courts will not enforce them."

It was further observed33: 50. (i)

(ii)

There is no provision in the Constitution, nor is there any provision of law which regulates the conduct of a minister--which expression includes Chief Minister and Prime Minister. There is also no constitutional or statutory provision prohibiting a Minister from engaging himself in any profession, occupation, or business, whether actively for gain, or otherwise. The Code of Conduct issued by the Union Government--and by the State Government--is of great significance and sanctity, though it is not statutory. It fills a great void. The Code is evolved with an eye upon good Government and clean administration, not only in action but also in appearance. It is binding upon all ministers. It prescribes the authority who shall ensure observance thereof. The procedure to be followed by him and the action to be taken thereon is also left to him. Similar rules have also been evolved in United Kingdom. However, for the reasons given hereinbefore, the petitioners cannot seek to enforce the Code through the Court."

Even if the Government order is traced to have been issued under executive power of the State under Article 162, such a Code will not be enforceable when the language used is not in mandatory terms and they are intended to be mere guidelines or instructions to the persons concerned in authority. Therefore, as long as such a Code of Conduct is not enforceable in any Court of law and does not even provide what action could possibly be taken in case of breach by the Chief Minister, the prohibition contained therein is only having ethical or moral effect and any breach thereof cannot be treated to be unlawful or even illegal within the meaning of Section 43, IPC. To constitute a ground for civil action under Section 43, there must be a right in a party which can be enforced. It may be a breach of contract or a claim for damages or some such similar right accruing under any law. There is no law which debars the Chief Minister from participating in a sale conducted by any department of the Government or any of the corporations or any public sector undertaking affording a cause for civil action especially when no fraud or illegal gain is involved. Therefore, the Supreme Court was constrained to hold that the offence under the aforesaid provision has not been established.34 (d) Delegator not to revise/review his delegate's order

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The custodian of Evacuee Property, U.P., functioning under the provisions of the Administration of Evacuee Property Act, 1950 passed an order in respect of a property which was approved by the Assistant Custodian General as a delegate of the Custodian General of the Evacuee Property. Revision was filed before the Custodian General who took the view that his delegate had already approved the order sought to be revised so he could not exercise his revisional jurisdiction against the same order and dismissed the revision application which was challenged in High Court which took an otherwise view and remanded the proceedings for fresh decision. The Supreme Court observed that it was rightly held by the Custodian General that the revision application was not maintainable as the Custodian General could not undertake the exercise of being satisfied whether the order approved by his delegate was legal and proper which would amount to review which he was empowered to do under the relevant Section 27 of the Act.35 A mother, the victim of Bhopal gas leak disaster, claimed a compensation of 15 lakhs for the death of her daughter, who was conceived shortly after the disaster. She contended that the child in her womb was adversely affected on account of the gas she had inhaled. Her case was supported by the evidence of the doctor who had examined and treated the child and the medical evidence. The Deputy Commissioner, on evaluation of evidence accepted her case and awarded her a compensation of 1.5 lakhs. The Welfare Commissioner, Bhopal Gas Victim Tribunal, on a suo motu examination of the record felt that the Deputy Commissioner had committed a gross error and considered it fit to suo motu revise the decision. He issued notice to the claimant father, heard his counsel and taking note of the fact that his wife had conceived after the tragedy, came to the conclusion that there could be no direct effect of gas leakage on the pregnancy. He examined the doctor who deposed that the gas inhalation could have adverse effect on a child born in a span of five years after the tragedy. However, brushing aside the doctor's evidence on the ground that it was not supported by any expert opinion on research, he concluded that the claimant had failed to prove that, if the parents are adversely affected by the gas leakage and, if the conception is few years thereafter there would be an adverse effect found on the child and the child could die on that account. The Apex Court held that the commissioner was not justified in brushing aside the doctor's evidence and it was hardly a case for interference in exercise of suo motu revisional jurisdiction as it was not a case that the Deputy Commissioner had based his decision on irrelevant evidence or inadmissible evidence or evidence which could be said to be based on any mistake.36 This is a well-known principle that, if a Court is constituted by law and matters go before it under a special law, then the Court can also exercise various other general powers attached to the Court by other statutes. The same principle will apply to quasi-judicial tribunals also. Hence, once the revision goes to the Board of Revenue under Section 15 of the 1958 Act, the Board can exercise its review powers under the 1951 Act.37 Between 1951 and 1958, the revisional powers exercised by the Orissa Board of Revenue under various statutes were reviewable by the Board under Section 7 of the Orissa Board of Revenue Act 23 of 1951. Likewise, it was held that, after 1958, if the Board passed any orders under Sections 6-D, 15, 25 and 32 of the Orissa Survey and Settlement Act 1958 (3 of 1959) which repealed the statutes in force between 1951 and 1958, those orders became reviewable by resort to Section 7 of the 1951 Act. That is how the Board of Revenue, when it exercised powers of revision under the 1958 Act, became entitled to review those orders by resort to Section 7 of the 1951 Act.38 Thus, it was held by the Apex Court that the Board of Revnue would be certainly entitled to exercise review powers under Section 7 of the 1951 Act in respect of orders passed in its revisional jurisdiction under Sections 6-D, 15, 25 and 32 of the 1958 Act.39 The order of the delegate is to be treated, for all intents and purposes, as an order of the principal itself, in the instant case the Orissa Board of Revenue, and hence, it was held that the Board cannot revise an order passed by the delegate, the Commissioner of Land Records and Settlement.40 The Apex Court observed that it may be argued that, if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. The Court said that this appears to be plausible at first but is not correct because of the intervention of the fundamental principle relating to "review" of orders i.e. a review application is to be made only to the same judge or if he is not physically available to his successor. Thus, the principle being applicable to quasi-judicial authorities also, the order passed by the delegate, Commissioner of Land Records and Settlement cannot be reviewed by the Board of Revenue. It can be reviewed only by the said Commissioner or his successor, because he alone would be able to remember the arguments made before him. Review of the Commissioner's order by the Board, would amount to an indirect power of revision by the Board of Revenue which was not permissible.41 Further, the Commissioner, being a delegate, its orders will have to be treated as orders of the Board of Revenue and will

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not be revisable by the Board. The Board cannot review the orders passed by the Commissioner, as the orders are not passed by the Board.42 It is a well settled principle that the principal does not lose his powers merely because those powers have been delegated to another body. Hence, in the instant case, the Board of Revenue and the Commissioner, both may exercise the revisional jurisdiction under 1951 Act, of course in respect of different pieces of land and the both can exercise the review powers under Section 7 of the 1951 Act to correct the obvious mistakes in their orders. When the delegate personifies his principal and his orders are to be treated as orders of his principal all other powers attributable to the personality, which he personifies, will be exercisable by him.43 5. SOME SPECIAL FORMS OF DELEGATED LEGISLATION In a large number of cases, the courts have considered the validity of various delegating provisions vis-a-vis the doctrine of excessive delegation. Some of these cases are noted here. The cases have been classified from the point of view of the nature of the power conferred under several broad heads. These categories are not mutually exclusive and have been adopted because of their most common occurrence and for the sake of convenience to facilitate analysis of cases. They are governed by the same overall principle of "excessive delegation". The truth, however, remains that, in practice, difficulties arise in applying the doctrine of excessive delegation to concrete situations and that, or the whole, the judicial tendency is to uphold the power of delegated legislation, and that it is only rarely that such a power may be struck down or the ground of excessive delegation. This is borne out by the following discussion. (a) Skeleton Legislation What does the term "skeleton legislation" mean? The term is used to denote a statute which delegates legislative power without laying down any principle or policy for the guidance of the delegate.44 In modern times, primary legislation is becoming more of a skeletal framework conferring not just the function of detailed implementation, but the power to determine major policy questions as well, on the Administration. Ordinarily, in India, a skeletal statute ought not to be valid because of the doctrine of Excessive Delegation which insists that the Legislature should lay down policies, in the statute which delegates legislative power. Otherwise also, as stated before, the usual justification for the institution of delegated legislation is supposed to be that while the legislature lays down the policies the Administration supplies the details within the framework of those policies.45 But such a distinction is hardly maintained in practice, and power to frame policies is usually delegated to the executive. It is not uncommon to find skeletal statutes in which the legislature lays down no policies, or lays down the barest of policies, or standards, or principles, and the executive is given power to legislate not only on matters of detail but even on matters of principles and policies without much of a limitation on power. The power of delegated legislation may be so wide in range and scope as to be subject to no meaningful restriction. In practice, the flexible way the courts apply the doctrine has resulted in the validation of many statutes which can be characterised as "skeleton legislation". A few typical examples may be cited here. In Harishankar Bagla v. State of M.P.,46 the following two sections of the Essential Supplies (Temporary Powers) Act, 1946, were questioned on the ground of excessive delegation: S. 3(1)--"The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by order provide for regulating or prohibiting the production, supply..."; S. 6: "Any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act."

S. 3 is an excellent illustration of skeleton legislation as this provision empowers the executive to promulgate delegated legislation not only to fill in the details in the statute but even to decide questions of policy. A whole edifice of vast administrative control over essential commodities has been built up by the executive through

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administrative legislation under S. 3. However, the Supreme Court declared both the sections valid saying that the Act had sufficiently formulated the legislative policy, namely, "maintaining or increasing supplies etc." in S. 3 and given a clear and sufficient guidance to the government to exercise its power under the section. Justifying the broad delegation, the Court stated that the "ambit and the character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy."47 In other words, the Court recognised that the area of essential commodities control was such that broad delegation of legislative power was inevitable. S. 6 was also upheld. Its effect, the Court explained, was certainly not to repeal or abrogate any pre-existing law. Its object was simply to by-pass the law where it was inconsistent with the provisions of the Act in question and the orders made under it. The Court argued further that even if it be conceded, for the sake of argument, that an existing law stood repealed to the extent of its repugnancy with the order made under S. 3, by implication, then the repeal was "not by an act of the delegate," but was by the "legislative act of the Parliament itself," as Parliament itself had declared in S. 6 that an order made under Section 3 "shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act."48 In this way, the Supreme Court upheld a very broad delegation of power. Both these sections now survive in the Essential Commodities Act, 1955. Thus, under S. 3 of the Act, a very broad delegation of power to the Executive has been made, which has again been upheld by the Supreme Court.49 Under S. 3, the Executive has virtually a free choice of what orders it will issue and what steps it will take to control commodities. None of these orders has been held ultra vires on the ground of exceeding the authority conferred.50 There are quite a few other cases in line with the same liberal approach. In Bhatnagars & Co. v. Union of India51 was involved S. 3(1)(a) of the Imports and Exports (Control) Act, 1947 authorising the Central Government to prohibit or restrict the import or export of goods of any specified description by order. The statute is skeletal and gives no indication as to what considerations and policies are to be kept in view by the Government in controlling imports and exports. The whole regulatory process over import and export of goods has been developed by the Administration through delegated legislation under this statutory provision. But the Supreme Court held the statute valid arguing that the underlying policy was to be found in the preceding statute, the Defence of India Act, 1939, whose provisions the statute in question purported to continue. It is, however, not clear as to how this relation between the old and the new Acts was established by the Court. The only reference made to the old provision by the Act in question was in S. 4 under which all orders made under rule 84 of the Defence of India Rules, 1939 were to continue in force so far as not inconsistent with the Act. It may also be noted that the Defence of India Act was an emergency, colonial law and dealt not only with imports and exports but also with a whole range of other matters which became relevant in the war emergency. Further, the Defence of India Act was itself a skeletal piece of legislation. The whole complexion of import and export control has changed in Independent India and differs very much in details and fundamental approach from what it was in the 1940's. The control policies in the area of import and export are developed by the executive from time to time and for this purpose the Act in question lays down no guidelines. However, in support of the Court's decision it may be said that the subject of import and export control is so variable in the modern world that perhaps it is not possible for Parliament to lay down articulate norms which could be valid for all time to come and thus broad powers have to be left in this area to the executive, but the reasoning adopted by the Court to uphold the provision in question was very artificial. In Makhan Singh v. State of Punjab,52 the Supreme Court upheld, against the attack of excessive delegation, S. 3 of the Defence of India Act, 1962, which empowered the Central Government to make rules, as it "appears expedient" to it, for defence of India and maintenance of public order and safety. The All India Services Act, 1951 is an extremely brief statute of four sections of which the key provision is S. 3 which authorises the Central Government to make rules to regulate conditions of service in the all India Services. Pending the making of the rules under the Act, the rules existing on the date the law was enacted, were to be deemed to be the rules under the Act. Undoubtedly, it was an extremely wide delegation, as the Parliament had left the matter in the hands of the government in its entirety without laying down any policy. Yet the Supreme Court held the Act valid, arguing strangely, that the fact that the existing rules were adopted by the Act showed that the policy had been clarified as the existing rules contained the policy.53 But this argument is hardly tenable. The essence of the doctrine of excessive delegation is that policy be laid down by the legislature in the Act and not by the executive in the rules. It is not correct to control the discretion conferred

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under the Act through the rules made under a prior Act as these could be changed at any time. Further, to treat the existing rules as laying down the policy could result in the further argument that these rules could not be changed by the rule-making authority as that would be tantamount to the Executive changing the policy approved by the legislature, and in substance that view could result in very much restricting the rule-making power. It could certainly not be the intention of the legislature to fossilize or stratify the existing rules once for all.54 In Nachane55, the Supreme Court has upheld a statutory provision in the L.I.C. Act, 1956, providing that the service rules made thereunder shall have effect notwithstanding anything in the Industrial Disputes Act or any other law in force. Upholding the provision, the Court adopted mutatis mutandis the observations made in Bagla on S. 6 of the E.S.A.56 In case of a skeletal law, the delegate has too much power and all controls over rule-making are weakened.57 Keeping this eventuality in mind, the CMP suggested: "The precise limits of the law-making power which Parliament intends to confer on a Minister should always be defined in clear language by the statute which confers it; when discretion is conferred, its limits should be defined with equal clearness."58

To the extent possible, this precept ought to be kept in mind while delegating powers of subsidiary legislation. There may be exceptional situations when broad legislative powers may have to be delegated to the Administration, but this ought not to become a routine practice. (b) Power to include A statute may clothe the executive with the power to expand the range of its operation by bringing within its scope individuals, or bodies or commodities through methods other than formally amending a schedule.59. For example, the Essential Commodities Act, 1955 covers certain specified commodities listed in the Act and further empowers the Central Government to declare any other commodity as an "essential commodity" thus making the Act applicable to it. There is no difference of substance between this method and that of amending a schedule except this that it does not involve a formal amendment of the law. This technique gives a kind of flexibility to the law: as and when it is found necessary to extend the provisions of a statute to any person or object not covered by it, the executive can itself do so without seeking a formal amendment of the law by the legislature. Such a provision is held valid subject to the statute laying down a policy. In Mohmedalli v. Union of India,60 the Supreme Court upheld a provision in the Employees' Provident Funds Act, 1952, authorising the Central Government to bring within the purview of the Act such establishments as it may specify. This Act can be applied to a factory engaged in any scheduled industry employing twenty or more workers. The Act thus gives sufficient indication of the policy underlying its provisions.61 A case falling in the same category, but reaching a contrary result, is Hamdard Dawakhana v. Union of India.62 S. 3 of the Drugs and Magic Remedies, (Objectionable Advertisement) Act, 1954, was in question. This provision forbade an advertisement suggesting that a medicine could be used for curing any venereal disease or any other disease specified in the rules. The Court held that no criteria, standards or principles had been laid down in the Act for specifying "any other disease" in the rules. "It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease". So, the power to make rules to that extent was held to be uncanalised and uncontrolled and therefore invalid. The Bar Council of India Training Rules, 1995 have been framed by the Bar Council of India in exercise of its statutory powers under Section 24(3)(d) of the Advocates Act, 1961. The express language of the section clearly shows that the rule making power of the Council proceeds only in direction, namely, for bringing into the sweep of Section 24(1), all those who were not entitled to be enrolled as advocates under the provisions of Section 24(1). It is an enabling power to make eligible otherwise ineligible person for enrolment as an advocate. It cannot be exercised for making otherwise eligible person ineligible for enrolment by prescribing additional qualification of pre-enrolment training and examination for enrolment as an advocate.63

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(c) Power to exempt A statute may grant power to the executive to exempt from its operation any person, institution or commodity as the case may be, and thus restrict the scope of operation of the Act. This is done with a view to introduce some flexibility in the legislative scheme. While a statute has provisions of general applicability there may be some circumstances of hardship when some exceptions therefrom may become desirable in favour of some specified individuals or bodies. The power to exempt takes care of such an eventuality. Usually the power to grant exemptions is given in general terms and is not specified as to what type of persons or individuals can be exempted, or under what circumstances can they be exempted, or what type of exemptions can be granted. All these matters are left by and large to the discretion of the concerned official. In several cases, such exemption clauses have been held valid against challenges under Art. 14 of the Constitution which is the equality clause.64 For example, in Jalan Trading Co. v. Mill Mazdoor Union,65 the Supreme Court upheld S. Section 36 of the Payment of Bonus Act, 1965, authorising the government to exempt any establishment or a class of establishments from the operation of the Act having regard to the financial position and other relevant circumstances of the establishment provided the government is of the opinion that it would not be in the public interest to apply all or any of the provisions of the Act. Holding the provision valid vis-a-vis Art. 14, the Court observed: "Parliament has clearly laid down principles and has given adequate guidance to the appropriate government in implementing the provisions of S. 36.". S. 60 of the Madras Co-operative Societies Act, 1932, runs as follows: The State Government may, by general or special order, exempt any registered society from any of the provisions of this Act or may direct that such provisions shall apply to such society with such modifications as may be specified in the order.

This broad clause confers both the power of exemption as well as that of modification in applying the Act to any specific society. In Registrar, Co-Operative Societies v. K Kunjabmu,66 the clause was held valid against the challenge of excessive delegation, as the Supreme Court found the policy of the Act stated in the preamble, viz., to facilitate the formation and working of co-operative societies. There may arise complex situations in course of the working of the Act and formation and functioning of the societies. So, S. 60 enables the Government to relax occasionally the rigours of the provisions of the Act. The power given to the Government under S. 60 is to be exercised so as to advance the policy and objectives of the Act. As regards the exemption clauses, the Supreme Court has observed in Hindustan Paper Corp. Ltd. v. Govt. of Kerala:67 "In almost all the statutes by which the fiscal or economic interests of the State are regulated, provision for granting exemption in appropriate cases would have necessarily to be there and the power to grant exemption is invariably conferred on the Government concerned. The Legislature which is burdened with heavy legislative and other types of work is not able to find time to consider in detail the hardships and difficulties that are likely to result by the enforcement of the statute concerned. It has, therefore, now become a well-recognized and constitutionally accepted legislative practice to incorporate provisions conferring the powers of exemption on the Government in such statutes. Such exemptions cannot ordinarily be granted secretly. A notification would have to be issued and published in the Gazette and in the ordinary course it would be subject to the scrutiny by the Legislature. The power can be exercised only in the public interest as provided by the section itself."

Usually, under an exemption clause either an administrative order68, or a legislative order, can be made.69 When exemption is granted to a single specified entity, the order is regarded as an administrative order but when exemption is granted to a class of entities, the order is a legislative order.70 An order granting exemption may however be susceptible to challenge on the ground of discrimination under Art. 14 of the Constitution.71 This point has been discussed later.72 (d) Power to modify the statute At times, a statute may confer power on the executive to modify the statute itself through delegated legislation. Prima facie it is a drastic power as it makes the executive supreme over the legislature itself, as

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the executive can change any provision of the statute enacted by the legislature. The power of the executive is very similar in quality to the power of the legislature itself as the legislature has enacted the statute which the executive can modify. The CMP characterised such a power as an exceptional form of delegation.73 But, in some situations, it may be a practical necessity to confer such a power on the executive to provide for a flexibility of approach into the legislative scheme so as to meet the changing situation. When some complicated scheme is introduced, it is thought advisable to confer such a power on the executive to enable it to make necessary adjustments in the legislation itself so as to meet any unforeseen difficulty. If such power is not given to the executive, then it will have to go again and again to the legislature to effect necessary modifications in the Act. This may delay matters as the legislature is a busy body. It is necessary to balance two factors: (i) the danger of the executive misusing its power; and (ii) the need for delegating the power. The judicial treatment of the problem reflects this balancing approach, the tilt being in favour of the latter factor. Generally, the judicial approach in India is favourable to conferment of such a power on the executive subject to the rider that it cannot use such a power so as to change the basic policy underlying the Act in question, or effect any essential changes therein.74 Procedural rules can neither enlarge the substantive provision of an Act nor curtail the same.75 The 'modification' power is discussed under the following several heads. (e) Power to amend schedule A common legislative practice is to confer power on the Administration to amend the schedule annexed to the Act. Usually, the Act would say that the Act applies to the individuals, bodies or commodities mentioned in the schedule annexed, but the Government may alter the schedule from time to time by adding thereto or removing therefrom some items. Thus, the range of operation of the Act may be expanded or reduced by making alterations in the schedule through delegated legislation. Prima facie, such a provision involves delegation of power to modify the parent Act, but invariably such a provision has been upheld against the challenge of excessive delegation on the premise that it is be exercised in the light of the policy of the Act. A few examples may be cited here of such judicial approach. The Minimum Wages Act, 1948, has been enacted, as stated in its preamble, "to provide for fixing minimum wages in certain employments". The Act has been made applicable to employments mentioned in the schedule, but the Government has been given power to add any other employment to the schedule and, thus, bring that employment as well within the operational range of the Act. Ostensibly, the Act did not formulate any specific legislative policy to regulate the governmental power to add any employment to the schedule; "no principles had been prescribed and no standards laid down in that behalf". Nevertheless, the Supreme Court upheld the provision in Edwards Mills Co. v. State of Ajmer76, arguing that the policy is apparent on the face of the Act which is to fix minimum wages in order to avoid exploitation of labour in those industries where wages are low because of unorganised labour or other causes. The Court pointed out that the conditions of labour vary from State to State and the expediency of including a particular industry within the schedule can best be ascertained by the person placed in charge of administration of a particular State.77 Such a power has been validated even in taxing statutes.78 A case in point is Babu Ram v. State of Punjab.79 The Punjab General Sales Tax Act, 1948, levied a purchase tax on the sale of goods except the items or goods mentioned in Schedule C to the Act. The State Government, after giving three months' notice, could add to, or delete any goods from the schedule. This meant that if the Government added any item to the schedule, it became tax exempt; and if any item was excluded from the schedule, it became subject to taxation. The provision was challenged on the ground of excessive delegation of legislative power. The Court upheld the provision mainly on two grounds: (1) it is common to give to the executive the power to amend schedules and such power has been upheld in a number of cases; (2) changes in the said schedule could be made only after giving three months' notice. Thus, the government could make changes after giving prior publicity of its intention to make changes in the schedule and giving interested parties an opportunity to make representations against the proposed changes. "In the case of a democratic government, this itself acts as a check on arbitrary exercise of power," asserted the Court. Section 39 of the Bihar Agricultural Produce Markets Act 16 of 1960 authorises the State Govt. to add any

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item to the Schedule of the Act containing the items of agricultural produce. The power of altering the Schedule by addition or deletion so as to determine the area of control and the goods to be controlled other than those specified in the Schedule has been delegated by the legislature to the State Govt. in the same manner as the power has been delegated to the Central Govt. under Section 2(a) of the Essential Commodities Act 10 of 1955 to specify essential commodities other than those specified by the legislature itself.80 (f) Territorial extension of statute Another technique used is to confer power on the executive to extend a statute already in force in one area to another area with such modifications as the executive may think fit. Such a situation was present in the Delhi Laws Act already noted.81 Such a formula has also been held valid subject to the rider that the power of modification is not used in such a manner as to change the policy underlying the Act in question. In Rajnarain v. Chairman, Patna Administration Committee,82 the relevant statutory provision provided that the Government could extend to a particular area any section of the statute (viz., the Bihar and Orissa Municipal Act, 1922) subject to "such restrictions and modifications as the Government may think fit." The Supreme Court upheld the delegation of power but subject to what it said in the Delhi Laws Act case that "when a section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as a whole."83 In this case, a notification extending to an area one section from a law prevailing in another area was quashed as it involved a change of policy of the law.84 In Lachmi Narain v. Union of India,85 the Supreme Court considered the validity of the power of extending a statute with modifications conferred on the Central Government by S. 2 of the Union Territories Act. This provision is similar to the one which was considered by the Court in the Delhi Laws Act case.86 On the face of it, S. 2 appears to give an uncontrolled power of modification of a statute being extended to a Union Territory. But such a broad view would have rendered the provision vulnerable on the ground of excessive delegation as it amounts to authorizing the delegate itself to sit over the judgment of the legislature. The Court therefore engrafted several limitations on the provision to save it from the vice of excessive delegation, viz., (i) the power conferred by the provision in question is that of extension, bringing into operation and effect in a Union Territory an enactment already in force in a State. (ii) The power to make "restrictions and modifications" in the enactment sought to be extended is not a separate and independent power but is an integral constituent of the power of extension. It can be exercised only along with, and not apart from, the power of extension. (iii) This power exhausts itself once the enactment is extended to the Union Territory. After the law has been extended, the power of modification cannot be exercised again. (iv) In the exercise of this power, only such "restrictions and modifications" can be validly engrafted in the enactment to be extended as are necessary to bring it into operation and effect in the Union Territory. "Modifications" which are not necessary for, or ancillary and subservient to the purpose of extension, are not permissible. And, only such "modifications" can be legitimately necessary for such purpose as are required to adjust, adapt and make the enactment suitable to the peculiar local conditions of the Union Territory for carrying it into operation and effect. (v) The words "restrictions and modifications" do not cover such alterations as involve a change in any essential feature of the enactment or the legislative policy built into it. The scope of the words "restrictions and modifications" is to be confined to "alterations of such a character which keep the inbuilt policy, essence and substance of the enactment sought to be extended, intact, and introduce only such peripheral or insubstantial changes which are appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory". Lachmi Narain reiterates forcefully the approach adopted by the Court in Delhi Laws Act and Raj Narain. Two alternative strategies may thus be adopted by the courts as regards a provision conferring power of modification of legislation on the executive: (i) if the provision is very broadly worded, and is capable of being used to change the basic policy of the statute, it may be declared invalid on the ground of excessive delegation. Such instances are rare.87 (ii) The judicial strategy usually adopted is to interpret the provision narrowly so as to protect it from being hit by the doctrine of excessive delegation and then to adjudge the validity of the delegated legislation issued thereunder so as to see whether it effectuates any change in the policy of the parent statute or exceeds the power delegated in any other manner. This topic is discussed in

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the next Chapter under Judicial Control. The question of validity of delegating power to the executive to extend a law prevailing in one area to another area after making "suitable modifications" has been recently discussed by the Supreme Court at some length in Brij Sunder Kapoor v. First Additional District Judge,88 and on the whole, the Court has adopted a liberal view in the matter. There are several cantonments interspersed throughout the length and breadth of India. As per the Indian Constitution, legislative power over these areas vests in the Central Parliament and not in the Legislature of the State where a cantonment is situated. It was felt necessary to have a rent control law in the cantonments. Accordingly, Parliament has enacted an Act (Act 46 of 1957), S. 3 of which runs to the following effect: "The Central Government may, by notification in the official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force in the State in which the cantonment is situated".

This provision was challenged on the ground of excessive delegation. The argument was that Parliament could not predicate on the date of passing the above law as to what law a State would pass in future regarding rent control. Thus, the Central Government was authorized to introduce a law in the cantonment to the provisions of which Parliament did not have any occasion to apply its mind at all. Also, it was argued that the Central Government was authorised to effect such modifications into the law as it thought fit. Thus, material modifications could be introduced into a State law before extending the same to a cantonment. Too broad legislative power was thus delegated to the Government. The Supreme Court however rejected the contention and upheld the validity of the provision impugned. The Court stated in this connection:89 "These cantonments were located in the heart of various cities in the different States and unlike the position that prevailed in early years, had ceased to be a separate and exclusive colony for army personnel. It was, therefore, but natural for Parliament to decide, as a matter of policy, that there should be no difference, in the matter of housing accommodation, between persons residing in cantonment areas of a State and those residing in other parts of the State and it is this policy that was given effect to by Act 46 of 1957."

Having decided upon this policy, Parliament could do either of two things: pass a separate statute in respect of cantonment areas in each State or merely extend to them the statutes prevalent in the respective States by a single statute. The second course was opted upon by Parliament. As regards the power to effectuate "modifications" in the State statute before extending the same to a cantonment, the Supreme Court said that this had a very limited connotation: "The nature of modifications or restrictions each statute would require can only be a matter of detail of drafting, of not much significance or importance, once the general policy was clear. It is only this matter of detail that has been delegated to Central Government to be attended to while passing appropriate notifications in each case." The Central Government "cannot change the basic essential structure or the material provisions of the law sought to be extended to the cantonment areas." The Court also ruled that the power conferred by S. 3 on the Central Government enables it to issue notifications from time to time as occasion arises and it is not a one time affair and is not exhausted by one single invocation.90 In Ramesh Birch v. Union of India,91 the Supreme Court has upheld as valid a provision in relation to Chandigarh similar to the one validated in Delhi Laws Act or Lachmi Narain. There is however one additional point which has emerged in Birch, If a law is already in existence in a Union Territory on a subject matter then no law can be extended to it again which may be in "actual conflict" with the existing law. Giving power to the executive to repeal or abrogate an existing law and substitute in its place another law which may be operative in some State, is not permissible and valid. A law may be extended when-(1) there is no law, there is vacuum, in the Territory concerned; (2) there may be an already existing law in the territory, but the law being extended is not in conflict with it but supplements it, makes additions to it; if both the existing and the law being extended can stand side by side. In Lachmi Narain, the Supreme Court had expressed the view that under S. 2, Union Territories Act (similar to the law involved in Birch), the power to extend the law to a Union Territory regarding a subject matter, is a one time affair. This view has now been modified in Birch to the extent that while the power is not a one time

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affair, and another extension of a law on the subject matter can take place, provided that the later law is not in 'actual conflict' with the law already prevailing in the Union Territory. Another interesting question disposed of in Birch is whether it would be valid for Parliament to authorise the executive to extend to a Union Territory a law to be passed in future by a State Legislature. The argument against this was that, as regards the existing State laws, one could assume that Parliament has approved the policy underlying these Acts, but how could one assume that the policy of the laws which have not yet been passed, but will be passed at some future date has also been approved by Parliament, In Delhi Laws Act the Court had validated the provision regarding extension of future laws, but doubt was thrown on this ruling in Pondicherry. Now, in Birch, by-passing Pondicherry, the Court has reiterated the ruling in Delhi Laws Act and has held a provision authorizing extension of future State laws to the Union Territories. In Kapoor, a similar proposition has been accepted as regards extension of laws to the cantonments. (g) Applying provisions from one act to another act with modifications A statute may empower the Government to apply to certain matters thereunder provisions from another statute with necessary modifications. For example, S. Section 43 of the Life Insurance Corporation Act, 1956, authorises the Central Government to apply the provisions of the Insurance Act, 1938, with such modifications and conditions as it thinks expedient to the Life Insurance Corporation. S. 12 of the Central Excises and Salt Act, 1944, authorises the Central Government to apply to certain matters under the Act, provisions of the Customs Act, 1962, with such modifications as the Government may consider necessary. As regards this provision, in N.C.J. Mills Co. v. Asst. Collector, Central Excises,92 the Supreme Court has reiterated the principle that "the power to restrict and modify does not import the power to make essential changes" and that "it is confined to alterations of a minor character and no change in principle is involved." The Court asserted: "No question is thus involved of delegation either of any essential legislative functions or any change of legislative policy." (h) Henry VIII Clause At times a statute may contain a 'removal of difficulty' clause, or which is nicknamed in England as the "Henry VIII clause" because "that king is regarded popularly as the impersonation of executive autocracy."93 What is sought to be denoted thereby is that such a clause vests an unlimited power, or rather an autocratic power, in the executive to change the legislation made by the legislature. Accordingly, the use of such clauses has been adversely criticised in England.94 Usually what happens is that when a law is enacted to implement a new socio-economic scheme, and the legislature is not sure of the difficulties which may crop up in future in implementation of the law, the legislature introduces a "removal of difficulty" clause in the statute. The clause envisages the government to remove any difficulty which may arise in putting the law into operation. Generally, two types of such clauses can be identified in the Indian statutes. One is a narrow one under which, "power to remove difficulties" has to be exercised consistent with the provisions of the parent Act. In such a case, the government cannot modify any provision of the parent statute itself. An example of this can be seen in S. Section 128 of the States Reorganisation Act, 1956 which laid down: "If any difficulty arises in giving effect to the provisions of this Act, the President may by order do anything not inconsistent with such provisions which appear to him to be necessary or expedient for the purpose of removing the difficulty."

The restrictive variety of removal of difficulty clause has been held to be valid on the touchstone of the doctrine of excessive delegation.95 S. 45(10) of the Banking Regulation Act, 1949, runs as follows: "If any difficulty arises in giving effect to the provisions of the scheme, the Central Government may by order do anything, not inconsistent with such provisions which appears to it necessary or expedient for the purposes of removing the difficulty.

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Under this clause, three requirements need be fulfilled for an order to be validly made, viz.: (1) a difficulty has arisen in giving effect to the provisions of the scheme; (2) the order to be made is such as appears to the Government to be necessary or expedient for the purpose of removing the difficulty; and (3) the order is not inconsistent with any provision of the scheme.96 Here the modification of the parent Act is not permitted; the 'removal of the difficulty' order is not final and its validity can be tested in a court of law.97 S. 42 of the A.P. General Sales Tax Act, 1957 provided that "if any difficulty arises in giving effect to the provision of this Act," the State Government "may make such provisions as appear to them to be necessary or expedient for removing the difficulty". Under this provision, the State Government issued an order clarifying that "cast iron castings" would be included in the term "cast iron" and, thus, be exempt from sales tax. Quashing the order, the Supreme Court pointed out in Bengal Iron1 that 'cast iron castings' were "different and distinct" goods from "cast iron", that the power under S. 42 was to be used not for "altering" the provisions of the Act but only "for giving effect" to those provisions. What was taxable under the Act could not be exempt from taxation by the government order. "Cast iron castings" were taxable under the Act; they were different from "cast iron" which was not taxable. The government could not therefore say, under S. 42, "that the levy created by the Act shall not be effective or operative". "In other words", said the Court, "the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be." Another version of the 'removal of difficulties' clause is broader as under it the government may be authorised to modify the parent Act, or any other Act, in the name of removal of difficulties. Usually such a power is limited in point of time, say two or three years from the commencement of the Act in question. Such a clause may run somewhat as follows: "If any difficulty arises in giving effect to the provisions of the Act, the government may, as the occasion may require, by order, do anything which appears to be necessary for the purpose of removing the difficulty." A supreme illustration of such a clause is provided by the Indian Constitution itself which under Art. 392(1) authorised the President to direct by order that the Constitution would, during such period as might be specified, have effect subject to such adaptations, whether by way of modification, addition or omission, as he might deem to be necessary or expedient. No such order could, however, be made after the first meeting of Parliament duly constituted under the Constitution. Art. 372 of the Constitution conferred a similar power of making adaptations and modifications in the existing law to bring the same in accord with the Indian Constitution.2 The broader version of "removal of difficulty" clause gives power to the government to make necessary adjustments in the statute to meet any difficulties which may arise in its implementation. Such a provision is objectionable as it vests a vast arsenal of power in the executive. Such a power is inconsistent with the principles of parliamentary democracy that the subordinate law-making authority be given power to amend a statute passed by the superior law-making authority. Nevertheless, the exigencies of modern administrative process demand that such a power be conferred on the executive when a new and complicated socio-economic measure is brought into force. In Jalan Trading Company v. Mill Mazdoor Union,3 the Supreme Court considered the validity of such a removal of difficulty clause. S. 37(1) of the Payment of Bonus Act, 1965 empowered the Central Government to make provisions, not inconsistent with the purposes of the Act, for removal of difficulties or doubts in giving effect to the Bonus Act. S. 37(2) purported to make the order of the Central Government issued under sub-sec. (1) final. By a majority, the Court held S. 37 invalid on the ground of excessive delegation of legislative power.. The Government had been made the sole judge whether any difficulty or doubt had arisen in giving effect to the Act, whether it was necessary or expedient to remove the doubt or difficulty, and whether the order made was inconsistent or not with the purposes of the Act. The clause involved in Jalan differed from the one involved in Delhi Laws Act and Rajnarain. In the latter case, the power was to extend a statute already in operation in one area to another area, and the power of modification was to be used only to make such adjustments in the statute as may be necessary to make it suitable for the new area. No modification was to be made in the original law as it prevailed in the old area. The court could examine whether the modifications made were inconsistent or not with the basic policy of the law in question. But the power conferred in Jalan was much wider in so far as the original legislation could be modified thereunder and the courts could not go into the question whether or not the modifications effected in the parent Act were against the basic policy of the Act.

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Since Jalan, the Supreme Court has somewhat relented in the matter of upholding the validity of the broader variety of removal of difficulty clauses. Such a clause does not stipulate that the provisions to be made by the government to remove the difficulty must not be inconsistent with the parent Act and so it means that provisions of the Act can also be amended to some extent. Such a clause has been held valid because of the following considerations: existence or arising of a "difficulty" is the sine qua non or the condition precedent for the exercise of power under such a clause, and, therefore, whether a difficulty has arisen or not is a matter which is not within the "subjective satisfaction" of the government; it must be established as an "objective" fact. This means that the court has to be satisfied that in fact a difficulty has arisen and that the difficulty needs to be removed and so the removal of the difficulty order is necessary. If there is no 'difficulty', the power to remove difficulty cannot be exercised. Again, the difficulty in question is a difficulty arising in giving effect to the provisions of the parent Act, and not a difficulty arising aliunde, or an extraneous difficulty. Therefore, a government order seeking to remove a difficulty which has not arisen would be unauthorised. Further, in removing the difficulty, the government can exercise the power under the clause in question only to the extent it is necessary for applying or giving effect to the Act and no further. Thus, the essential provisions of the Act cannot be amended. In the words of the Court itself: "It [the government] may slightly tinker with the Act to round off angularities, and smoothen the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In no case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act."4 It is evident from the above that "finality" cannot be conferred on an order made by the government in exercise of the power of "removal of difficulty" and that only minor amendments can be made in the parent Act without changing its basic policies. The Court reserves to itself the power to decide whether any "difficulty" has arisen in fact to remove which any action is necessary. Applying these principles, the Court declared the provisions made by the government under the removal of difficulty clause ultra vires in Straw Products5 and Sinai,6 because there was no difficulty in applying the provisions of the Act, and the government order, in effect, attempted to change the fundamental scheme of the parent Act in question. S. 19A of the Employees' Provident Funds Act, 1952, authorises the Central Government to give any direction, "not inconsistent with the provisions of this Act" for "the removal of the doubt or difficulty" if "any difficulty arises in giving effect to the provisions of this Act." The order of the Central Government is to be final. Explaining the scope of this provision, the Supreme Court has stated in Union of India v. Ogale Glass Works,7 that after a court has given a decision on a particular aspect relating to the Act and the scheme, no difficulty can be said to arise and, therefore, no occasion can arise for the Central Government to give a direction under S. 19A. The Central Government is bound to give effect to the decision, then the same could be treated as a direction under S. 19A. But after the court's decision, there is no warrant for assuming that there still remains some difficulty or doubt in respect of which the Central Government may give a direction under Section 19A. The Committee on Ministers' Powers8 criticised the use of the Henry VIII clause on the ground that it is inconsistent with the principles of parliamentary government that the subordinate law-making authority should be given power by the superior law-making authority to amend the statute passed by the superior authority, that it provides a temptation to the executive to be slipshod in preparing the bills, and also that such a power might be unscrupulously used by the executive. However, recognising the advisability of having such a clause when a new and complicated socio-economic legislative measure is being brought into force, the committee suggested that the Henry VIII clause should be used for the sole purpose of bringing an Act into operation and that too only when "demonstrably" essential and only for a period of one year from the passing of the Act. This is a sound suggestion and might as well be followed by the draftsmen in India. That the clause is susceptible of misuse is very tellingly exemplified by Krishnadeo Misra v. State.9 The State of Bihar continued to issue circulars and instructions, without even formally making any rules, for eleven long years under the 'removal of difficulty' clause in the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976. The High Court deprecated the practice in very strong terms. (i) Power of taxation In a democratic system, levying tax is regarded exclusively as a function of the legislature as this power is a strong weapon at the disposal of the legislature to control the executive.10 The democratic tradition of taxation by the legislature is very strong. But, in modern times, a dent has been made even in this principle

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and delegation has permeated the tax area as well. After the legislature enacts the statute to levy a tax, it leaves some elements of taxing power to the executive. The doctrine of excessive delegation is applied by the courts to adjudge the validity of the provision delegating the power. The courts uphold delegation of power to decide "matters of details" concerning the working of the tax law in question. However, the truth is that the expression "matters of details" is merely an euphemism to cover delegation of significant and substantial taxing powers to the executive. This is one area where the power of the legislature ought to have been preserved, but the truth is that the Supreme Court has been quite liberal in the matter of delegation of taxing powers on the ground that the legislature should have more leeway in a fiscal measure.11 Several variants of formulae are used to delegate power in the tax area. First, power may be delegated to government to exempt a commodity from the purview of a tax. In Orient Weaving Mills v. Union of India,12 a provision conferring power on the Central Government to exempt any excisable goods from the whole or part of the duty leviable on such goods was held valid against the plea of excessive delegation. A statute levied a multi-point sales tax, but in case of the goods notified by the government a single point tax could be levied. The Supreme Court held the provision valid saying that while a legislature cannot delegate its essential legislative function, it can delegate the power to select the persons on whom, or the goods or the transactions on which, the tax is to be levied. In the instant case, it is not possible for the legislature itself to select goods to be subjected to the single point tax. Before making such a selection, several matters need to be considered, such as, impact of the levy on society, economic consequences, administrative convenience, etc. These factors change from time to time. Hence, in the very nature of things these details have got to be left to the government.13 Secondly, power may be conferred on the government to bring additional transactions, commodities or persons within the purview of a tax. In Babu Ram,14 a provision authorising the government to bring any goods within the purview of sales tax law was held valid. Thirdly, power may be conferred on the executive to fix the rates of tax itself. Law may impose a tax but may leave it to the executive to quantify the rate at which it is to be levied. The statute usually fixes a maximum limit subject to which the executive may fix the rate of taxation from time to time. A few examples of this may be mentioned here. Under the Coal Mines (Conservation and Safety) Act, 1952, the Central Government is empowered to impose a duty of excise, subject to a maximum prescribed, on all coal raised and despatched, and as a corollary thereof, the government may impose an equivalent import duty on the coal imported. The Terminal Tax on Railway Passengers Act, 1956 authorised the Central Government to fix rates of taxation subject to the maximum fixed in the Act. The courts, speaking generally, do not favour delegation of an unrestricted power to fix rates of tax; they require that the legislature should itself fix the maximum limit subject to which the executive may fix the rates. In Devi Das v. State of Punjab,15 the law empowering the executive to levy sales tax at a rate not, exceeding 2% was held valid. The Court stated that it was all right to confer a reasonable area of discretion on the government by a fiscal statute, but a large statutory discretion placing a wide gap between the minimum and the maximum rates, and, thus, enabling the government to fix an arbitrary rate might not be sustained. In the ultimate analysis, the permissible discretion depends upon the facts of each case. In the instant case, the discretion to fix the rate between 1% and 2% was insignificant, and did not exceed the permissible limits. In the same case, a provision authorising government to levy sales tax at such rates as it deems fit was held bad as there was no policy or guidance discernible from the statute and thus an uncontrolled power was conferred on the executive to levy tax from time to time. It was too broad a delegation without any guidelines and to sanction the same would be "to destroy the doctrine of excessive delegation itself". In Sitaram Bishamber Dayal v. Uttar Pradesh,16 the power to impose sales tax at a rate not exceeding 5% was not regarded bad by the Supreme Court as the rate prescribed was a reasonable upper limit. To the same effect is V. Nagappa v. Iron Ore Mines Cess Commissioner.17 A Central Act authorised the Central Government to levy, by notification in the official gazette, a cess up to 50 paise per metric tonne on iron and spend the money so collected on labour welfare. The delegation of power was held valid because the provision laid down the purposes for which the duty collected was to be utilized and these purposes were neither vague nor indefinite. The policy of the Act was thus clearly stated. Further, the maximum rate at which the tax might be collected had been fixed. Said the Supreme Court: "The area within which discretion has to be exercised having been clearly demarcated, it cannot be said that a blanket power to fix the rate has

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been delegated to the government." On the other hand, there is Papiah.18 A State Act provided for levy of excise duty "at such rates as the government may prescribe". Here was delegation running "riot"--there was neither any policy guidance given nor was any maximum rate of taxation prescribed. Yet the provision was held valid. The decision does not accord with the earlier cases where the Court emphasized upon the necessity on fixing the maximum tax limit by the legislature within which the executive discretion could operate. For the reasons already mentioned earlier, Papiah cannot be regarded as good law.19 In Shama Rao v. Union territory of Pondicherry,20 the Pondicherry Assembly passed an Act in 1965 providing that the Madras General Sales Tax Act, 1959, as in force in the State of Madras immediately before the commencement of the Pondicherry Act, would apply to Pondicherry; and the date of commencement of the Act was left to the Pondicherry Government. The result was that all the amendments to the Madras Act passed by the Madras Legislature during the period of enactment and commencement of the Pondicherry Act automatically became applicable to Pondicherry. The Supreme Court ruled that this amounted to abdication of its power by the Pondicherry Legislature in favour of the Madras Legislature, and, therefore, the Pondicherry Act was bad on account of excessive delegation. The Pondicherry Legislature at the time of passing the Act in question could not anticipate that the Madras Act would not be amended nor could it predicate what amendments would be carried out, whether they would be of a sweeping nature or whether they would be suitable in Pondicherry. In the opinion of the Court, the Pondicherry Legislature accepted the amended Act though it was not and could not be aware what the provisions of the amended Act would be. The Pondicherry case can be looked at from two angles: (i) there was an abdication of power in favour of another legislature; (ii) there was an abdication in favour of the Pondicherry Government as by fixing the date of commencement of the Act, the Government could adopt the future laws enacted by the Madras Legislature. As far as the second angle is concerned, it was covered by the Delhi Laws case, but the court did not follow that case, as in its opinion there was difference of opinion among the Judges with respect to several matters.21 As for the first angle, the Supreme Court ruled that, in the circumstances, there was a 'total surrender' by the Pondicherry Assembly in favour of the Madras Assembly. S. 8(2)(b) of the Central Sales Tax Act, 1956, authorises levy of sales tax on sales of goods in the course of interstate trade and commerce at the rate of 10%, or at the rate applicable to the sale or purchase of such goods inside the appropriate state, whichever is higher. The italicised portion of S. 8(2)(b) was challenged on the ground of excessive delegation, the argument formulated being that fixation of rate of tax is a legislative function; that in so far as Parliament had not fixed a rate of tax itself, but adopted the rate prevailing in a State if over 10%, it had abdicated its legislative function. It was argued that a State Legislature would fix the rates of sales tax in its own right and according to its own needs and Parliament would be adopting this rate for Central taxation even without being aware of what the rate might be in future. The Court declared the provision valid in Gwalior Rayon.22 The Court argued that the provision was enacted to prevent evasion of the Central sales tax and there was a clear legislative policy underlying the impugned provision, viz., that the rate of Central sales tax would in no case be less than the rate of local sales tax. The Court pointed out that it was not possible for Parliament to fix the maximum rate of tax because the rate of local sales tax varied from State to State, and the State Legislatures could vary the rates from time to time. Parliament has no control over local rates and, therefore, Parliament has "necessarily, if it wants to prevent evasion of payment of Central sales tax, to tack the rate of such tax with that of local sales tax, in case the rate of such local sales tax exceeds a particular limit." The Court ruled that S. 8(2)(b) was induced by a desire to prevent evasion of the Central sales tax. Prima facie, it may appear that S. 8(2)(b) of the Central Sales Tax Act does not reveal any policy, but a deep analysis and the history of the statute would show that it had been drafted after careful consideration of the complicated economic factors and administrative problems to rectify in the best possible manner the problems which arose before the enactment. The Court distinguished the Pondicherry case by ruling that, in the instant case, unlike Pondicherry, there was no such abdication by Parliament in favour of the State Legislatures.23 In State of Kerala v. Madras Rubber Factory Ltd.,24 The Supreme Court held that a charge under a taxing statute can only be under the Act and not under the rules. The rules normally provide for the procedure to be followed for the realisation of the statutory dues. (1) Delegation of taxing power to a non-elected body

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The Bangalore Development Authority Act, 1976 delegated the taxing power to Bangalore Development Authority, which was a non-elected body which was challenged before the Apex Court besides on the grounds of it being excessive, unguided and arbitrary. The Court held that the BDA undertakes so many developmental activities and as such it could not be treated as a stranger for the purpose of being delegated the authority to levy property tax on the property situated within its jurisdiction. The Court further held that the taxing power was not left to the arbitrary wisdom/discretion of the delegate as the same was governed by the procedure to be adopted under the Bangalore Corporation Act, 1949 which itself provided for an elaborate machinery for determining the levy and collection thereof. Therefore, the delegation was neither beyond the scope of legislative power nor was in excess of the same. Besides the said delegation was neither unguided nor arbitrary.25 (2) Power to determine compensation The Section 124-A of the Railways Act, 1989 provides that a passenger injured in any ontoward incident occurring in the Railways could claim compensation but it does not fix the amount of compensation payable. The statute leaves it to be determined by the Central Govt. from time to time by means of rules. This delegation to the Central Govt. indicates that it was difficult for Parliament to fix the amount because compensation amount is a varying phenomenon and the Govt. would be in a far more advantageous position to ascertain what would be just and reasonable compensation in respect of myriad different kinds of injuries taking into account very many factors.26 (j) Delegation to municipal bodies A liberal judicial approach is discernible in the case-law in the matter of delegation of legislative power to municipal bodies. One reason for this judicial attitude is that these bodies are representative institutions, which are responsible to the people, and this element serves as an inherent restraint on these bodies in the matter of making delegated legislation. Broad delegations to such bodies have been upheld with a view to strengthen the institution of local self-government which is regarded as the primary unit of democracy. Thus, a provision conferring power on a municipal corporation to levy octroi duty on commodities other than those specified in the statute,27 or a power to levy electricity tax by the municipal corporation without any limit conferred by the parent Act, has been upheld.28 This is because "the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation."29 A municipal corporation consists of elected people; the power is exercised after debate by elected representatives; they have to go to the electors after regular interval with the possibility of being thrown out in case they act unreasonably. This factor imposes on in-built safeguard on excessive delegation as regards municipal bodies. Other safeguards may also be there, e.g., the statute may provide maximum rates of taxation to ensure that taxation only at a reasonable rate is imposed; government approval or sanction is usually necessary for any taxation proposal by a municipality;30 there may be provision for consultation with local inhabitants etc.31 The needs of a municipal body are limited as compared with those of the government whose needs are practically unlimited and this factor also imposes a kind of restraint on the level of taxation by a municipal body. This factor was emphasized by the Supreme Court in Corporation of Calcutta v. Liberty Cinema.32 A State statute conferred power on the corporation to levy a licence fee on cinemas at such rates as the corporation "may resolve from time to time." The legislative policy of "imposing taxes at such rates by the corporation as may be necessary to defray the cost of discharging its duties" which the court impliedly read into the statute was held to be a sufficient guidance to the corporation for validating the statute. In Modi,33 a provision conferring power on a municipal corporation to levy tax on lands and buildings without fixing any maximum limit was upheld. According to the Court, mere absence of a provision prescribing the maximum rate in the Act delegating power to the corporation to levy a tax does not per se render such delegation arbitrary or excessive, for corporation's taxing power is limited to the extent of its statutory needs which furnishes sufficient control over and provides guidance to the corporation. The contrast in judicial attitude toward the executive and the municipal bodies, in the matter of delegation of taxing power, is further underlined when reference is made to another situation. At times, the State Legislature, without specifying what taxes municipalities may levy, confers on them the power to levy any tax

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which the Legislature itself may levy. This is an extremely broad delegation indeed and, prima facie, on general principles, should be deemed to be invalid on the ground of excessive delegation as the statute contains no policy to guide the municipalities as to what taxes to levy, and at what rates to levy them. Nevertheless, the Supreme Court has upheld such a provision arguing that only such taxes may be levied by a municipality as are necessary to implement the purposes specified in the statute, and this provides a sufficient guideline to the municipality. Also, prior sanction of the State Government is necessary for imposing such a tax.34 In Avinder Singh v. State of Punjab,35 when a municipality failed to carry out its direction to impose sales tax at the rate of Rs. 10 per bottle of foreign liquor, the State Government itself imposed the same for municipal purposes. The Act in question did not lay down any minima or maxima of tax rates. Had the municipality imposed the tax, it was required to give an opportunity to the residents to file objections against it, but the Government was under no such obligation. Still the Court upheld the statutory provisions arguing that it made no difference in principle whether the tax was directly levied by the municipality or the Government for the benefit of the former and not to replenish its coffers. However, the Court ignored a very significant consideration in this case: the municipality would have been directly responsible to the people of the area while the State Government was not. Responsibility to the locality has been a strong factor in support of broad delegation to municipality; this factor was absent here. Further, in the instant situation, the residents lost their right to object to the levy of the tax which they could have exercised if the municipality and not the State Government had levied the tax. The above-mentioned cases undoubtedly sanction broad delegation of taxing power to municipal bodies. But, as the Devidas case shows,36 no such general proposition about the validity of wide delegation of taxing power to the executive government can be spelled out from these decisions. It may be noted that a similar position obtains in the United States. While the State Courts take a strict view of the 'non-delegation doctrine', yet delegation to municipal bodies is considered as an exception thereto.37 In the same genre falls J.R.G. Mfg. Association v. Union of India.38 S. 12(2) of the Rubber Act, 1947 empowers the Rubber Board to levy an excise duty on either the owner of a rubber estate by whom rubber is produced or on the manufacturer by whom such rubber is used. In upholding the provision against the challenge of excessive delegation, the Supreme Court based its decision on the following considerations: the Rubber Board is a high powered body having representation of various rubber interests and, thus, it could keep in view the interests of all concerned; the policy of the Act in question has been enunciated with. sufficient clarity and the Act furnishes guidance to the board as to how it should levy and collect the tax; all acts of the board are subject to the control of the Central Government which can modify, cancel or suspend any action of the board; and the board is to levy the duty in accordance with the rules made by the Central Government which are laid before Parliament. 6. BINDING EFFECT In R.K. Trivedi v. Union of India,39 the Supreme Court held that, when the statutory rules provided a particular mode of selection for certain posts, the Central Administrative Tribunal could not in law direct that the essential mode which was required to be followed could be given a go-by. 7. CONDITIONAL LEGISLATION During the colonial days in India, modest delegation of legislative power was held valid by the courts under the rubric of 'conditional legislation'. The idea behind this term is that the legislature makes the law which is full and complete in all respects, but it is not brought into operation immediately. The enforcement of the law is made dependent upon the fulfilment of a condition, and what is delegated to the outside agency is the authority to determine, by exercising its own judgment, whether or not the condition has been fulfilled. Thus, in conditional legislation, the law is there but its taking effect is made to depend upon determination of some fact or condition by an outside agency.40 The operation of the rule can be illustrated by reference to a few cases. The classic case is Queen v. Burah.

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41

In 1869 the legislature passed an Act to remove Garo Hills from the system of law and courts prevailing therein, and to vest the administration of justice therein in such officers as the Lt. Governor of Bengal might appoint. The law also authorised the Lt. Governor of Bengal to extend to Garo Hills any law which might be then in force in other territories under him. The Act was to come into force on a day appointed by the Lt. Governor. The Act was held valid by the Privy Council on the ground that the legislature having determined that a certain change should take place, had left to the discretion of the Lt. Governor the time and manner of carrying the same into effect. The legislature had exercised its judgment as to the place, person, laws, powers, and legislated on all these things conditionally. In King Emperor v. Benoari Lal,42 an ordinance promulgated by the Governor-General providing for the setting of special courts was in question. The operation of the ordinance was left to each provincial government on being satisfied that emergency had come into existence in the province concerned. The ordinance was upheld as an example of conditional legislation as the local application of its provisions was to be determined by the local administrative body. S. 1(3) of the Employees' State Insurance Act, 1948, passed by Parliament provided that the Act "shall come into force on such date or dates as the Central Government may by notification in the official gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States and for different parts thereof." The provision was held valid as an example of conditional legislation.43 The Court pointed out that the said Act prescribed a self-contained code in regard to the insurance of the employees covered by it. In leaving to the discretion of the Central Government when the scheme should be brought into force and in respect of what factories, the Legislature was doing "what is usually done by conditional legislation." The scheme though very beneficent, could not be introduced all at once in the. entire country. Such a scheme can be introduced only in stages and so, inevitably, the question of extending the benefits contemplated by the Act in question has to be left to the discretion of the concerned government. In Inder Singh v. State of Rajasthan,44 the Rajasthan Government promulgated an ordinance for two years, but the Governor was authorised to further extend its duration by a notification. The Governor extended the life of the ordinance first by two years and then again by two years. The Supreme Court held the power to extend the life of the ordinance valid as being conditional legislation. In A.K. Roy v. Union of India,45 the Court upheld a provision in a constitutional amendment giving unfettered discretion to the executive to bring the amendment into effect. From the above, it is clear that when a legislature enacts a law and authorises an executive authority to bring it into force in such area, or at such time, as it decides, or to extend the life of the legislation, it is characterised as conditional legislation.46 The doctrine of conditional legislation is reminiscent of the colonial days when the Privy Council had to draw a kind of compromise between the exigencies of administration demanding delegation, and the limited character of the colonial legislatures bound as they were by the statute of the British Parliament. The Privy Council did not like to commit itself to the position that the subordinate legislatures could delegate legislative powers, and the term "conditional legislation" was evolved to denote that what was being delegated was some minor legislative power. In line with this approach was the decision of the Federal Court of India,47 just on the eve of the inauguration of the new Constitution, that legislatures in India could not delegate legislative power and that only conditional legislation and nothing more was allowed. The assumption underlying conditional legislation is that not much discretion is conferred on the executive because the law as enacted by the legislature is more or less complete, and that the executive only brings the law as it is into operation or extends its operation. Under delegated legislation, undoubtedly, the discretion conferred on the executive is much wider, as the cases mentioned earlier would testify. The question is that when the broader power of delegation has come to be accepted, is it necessary now to keep alive the limited and narrower concept of conditional legislation? What can be upheld as conditional legislation can be easily upheld as delegated legislation. The capacity of the legislature to delegate having been recognised now, the doctrine of conditional legislation appears to have become redundant because the greater (meaning delegation) would include the lesser (conditional legislation). The doctrine of conditional legislation now is nothing more than an historical anomaly. In examining statutes from the point of view of the validity of delegation of legislative power it is more appropriate to consider whether delegation is excessive or not rather than hold it valid by calling it conditional legislation. Though the tendency of the courts increasingly is to use the term 'delegated legislation', the term 'conditional legislation', has not been discarded for good and it still pops up once in a while in judicial opinions. From time

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to time, the courts resort to the argument of conditional legislation and uphold a delegation of legislative power by characterising it as conditional legislation. For example, a Kerala Act was enacted to regulate production, supply and distribution of 'essential articles'. But the Act gave no list of such articles; it left it to the government to notify an article as an 'essential article' and bring it within the purview of the Act. The Supreme Court upheld the power as a case of 'conditional legislation'.48 It is quite obvious that the concept of conditional legislation was invoked unnecessarily as similar power has been upheld in a number of cases as delegated legislation.49 In Tulsipur,50 the Supreme Court stated that 'conditional legislation' cannot be characterised as 'subordinate legislation'. It is strange logic because there is delegation of some legislative power in conditional legislation as well. The Supreme Court rightly stated in Lachmi Narain v. Union of India,51 that no useful purpose is served by calling a power conferred by a statute as conditional legislation instead of delegated legislation. There is no difference between the two in principle, for 'conditional legislation' like delegated legislation has a "content, howsoever small and restricted, of the law-making power itself', and in neither case can the person be entrusted with the power to act beyond the limits which circumscribe the power. But the courts have not ceased making references to the doctrine of conditional legislation.52 It is suggested that the courts follow what the Supreme Court has stated in Lachmi Narain and discard the concept of conditional legislation for good. Much broader delegations having been upheld than what would pass muster as conditional legislation, it is unnecessary to keep alive a shibbeloth, reminiscent of the colonial era, which serves no practical value. The power to bring an Act into force as well as the power to grant exemption are both treated, without a doubt, as belonging to the category of conditional legislation. Very often the legislature makes a law but leaves it to the executive to prescribe a date with effect from which date the Act shall come into force. As a matter of fact, such a course has been adopted even in the case of a constitutional amendment, to wit, the Constitution (forty-fourth Amendment) Act, 1978, insofar as it pertains to amendment of Article 22 of the Constitution. The power given to the executive to bring an Act into force as also the power conferred upon the Government to exempt persons or properties from the operation of the enactment are both instances of conditional legislation and cannot be described as delegated legislation.53 Conditional legislation can be broadly classified into three categories: I.

II.

III.

When the legislature has completed its task of enacting a statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate, who being satisfied about the conditions indicating the ripe time for applying the machinery of the said Act to a given area, exercises that power as a delegate of the parent legislative body. When the Act itself is complete and is enacted to be uniformly applied in future to all those who are to be covered by the sweep of the Act, the legislature can be said to have completed its task. All that it leaves to the delegate is to apply the same uniformly to a given area indicated by the parent legislature itself but at an appropriate time. This would be an act of pure and simple conditional legislation depending upon the subjective satisfaction of the delegate as to when the said Act enacted and completed by the parent legislature is to be made effective. When the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. In such type of cases the satisfaction of the delegate has necessarily to be based on objective consideration of the relevant data for and against the exercise of such power. May be such an exercise does not amount to any judicial or quasi-judical function, still it has to be treated to be one which requires objective consideration of relevant factual date pressed in service by one side and which could be tried to be rebutted by the other side who would be adversely affected if such exercise of power is undertaken by the delegate. In this category of cases of conditional legislation, the legislature fixes up objective conditions for the exercise of power by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. This exercise is not left to his subjective satisfaction nor it is a mere ministerial exercise.

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Therefore, in the third category of cases even though the delegate is said to be exercising conditional legislative power, it cannot be said to be entrusted by the legislature with the function of a purely subjective nature based on its sole discretion, nor can it be said to be exercising such power for binding uniformly the whole class of persons without benefiting one class at the cost of the other class of persons who are subjected to he exercise of such exemption power. In this category of cases of exercise of power of conditional legislation, objective assessment of relevant data furnished by rival classes of persons likely to be affected by such an exercise cannot be said to be ruled out or a taboo to such an exercise of power. It is also necessary to keep in view that in such category of cases the delegate exercising power of conditional legislation does not lay down a uniform course of conduct to be followed by the entire class of persons covered by the sweep of such an exercise but lays down a favourable course of conduct for a smaller class of persons at the cost of rival large category of persons covered by the very same exercise of power. To that extent there is a mini lis between these two rival categories of persons likely to be affected by such an exercise by the delegate. Such exercise may also cover existing situations as well as future situations sought to be subjected to the exemption for the period prescribed in the order and may sometimes affect to any permissible extent even past transactions in individual cases. Such type of exercise of power cannot be said to rule out consideration of rival view point on the question of grant of exemption to an establishment or to a class of establishments from the relevant provisions of the Act. In the instant case the legislation has prescribed objective standards and has permitted the delegate to grant exemption and to withdraw the benefit of the statute which is being enjoyed by the persons and in our opinion, in such a situation, principles of fair play or consultation or natural justice cannot be totally excluded. All that is required for such an exercise is, therefore, not any personal hearing to be granted to the employees likely to be affected by the said exercise but they must be given at least an opportunity to put forward their rebuttal evidence or material against the material furnished by the claimant-establishment so that the appropriate Government can have an objective assessment of the relevant data with a view to arriving at a rational, well informed and reasonable opinion on a comprehensive consideration of pros and cons of the fact situations concerned calling for such an exercise of power on its part.54 The Industrial Disputes (Amendment) Act, 1982 left the enforcement of a certain provision therein to the discretion of the Government, without laying any objective standards which the Government failed to do for eighteen years. An affected party moved the High Court for issue of mandamus to the Government which the High Court did giving it six months time to decided as to when it would be feasible to give effect to the said provision. The Supreme Court did not agree holding that no mandamus could be issued to the executive directing it to commence the operation of the enactment as Parliament had not laid down an objective standard to guide and control its discretion. Moreover, the Government had placed a data of its efforts to enforce the said provision which showed that the Government was alive to the problem. However, the Apex Court upheld the High Court view that that such a power did not enable the Government to decide whether to bring or not to bring the said provision into force and it was obligatory on the Government to take appropriate action to bring into effect the said provision.55 In Common Cause v. Union of India,56 it was contended that in case the Government does not issue the notification as to from when a certain enactment is to come into operation, Section 5 of the General Clause Act, 1897 would apply i.e. it should come into operation from the date, it received assent of the President/Governor. It was held that the submission was misconceived as the said provision is applicable only when the Act does not express any date for its coming into operation. In the instant case, the situation was otherwise. The question whether the power of conditional legislation can be exercised with retrospective effective was considered by the Supreme Court in A. Thangal Kunju Musaliar v. M. Venkitachalam Potti, Authorised Official and I.T.O.57 The Travancore Legislature had enacted the Travancore Taxation on Income (Investigation Commission) Act (14 of 1124). Section 1(3) "authorised the Government to bring the Act into force on such date as it may, by notification, appoint". The Government issued a notification in exercise of that power on 26.7.1949 stating that the Act is brought into force with effect from 22-7-1949. The contention before this Court was that in the absence of an express provision in Section 1(2) authorising the Government to fix the date of commencement of the Act with retrospective effect, the Government had no power to say on 26.7.1949 that the Act must be deemed to have come into operation on 22.7.1949. This contention was negatived by the Constitution Bench of this Court in the following words:

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"The reason for which the Court disfavours retroactive operation of laws is that it may prejudicially affect vested rights. No such reason is involved in this case. Section 1(3) authorised the Government to bring the Act into force on such date as it may, by notification, appoint. In exercise of the power conferred by this section the Government surely had the power to issue the notification bringing the Act into force on any date subsequent to the passing of the Act. There can, therefore, be no objection to the notification fixing the commencement of the Act on 22.7.1949 which was a date subsequent to the passing of the Act. So the Act has not been given retrospective operation, that is to say, it has not been made to commence from a date prior to the date of its passing. It is true that the date of commencement as fixed by the notification is anterior to the date of the notification but that circumstance does not attract the principle disfavouring the retroactive operation of a statute. Here there is no question of affecting vested rights. The operation of the notification itself is not retrospective. It only brings the Act into operation on and from an earlier date. In any case it was in terms authorised to issue the notification bringing the Act into force on any date subsequent to the passing of the Act and that is all that the Government did."

(1) Conditional Legislation and Delegated Legislation--Distinction In Hamdard Dawakhana (Wakf) v. Union of India,58 the Supreme Court dealt with the distinction between conditional legislation and delegated legislation. The following observations are apposite: "The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. U.S.,59 and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; (Queen v. Burah,60; Russell v. Queen,61; King-Emperor v. Benoari Lal Sarma,62; Sardar Inder Singh v. State of Rajasthan,63 Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. To put it in the language of another American case: 'To assert that a law is less than a law because it is made to depend upon a future event or act is to robe the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a State of affairs not yet developed, or to things future and impossible to fully know.'

The proper distinction there pointed out was this: 'The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must therefore be subject of enquiry and determination outside the hall of legislature.' (In Lockes Appeal64; Field v. Clark65)."

In Sardar Inder Singh v. State of Rajasthan,66 the Supreme Court made the following observation: "In the present case, the preamble to the Ordinance clearly recites the state of facts which necessitated the enactment of the law in question, and Section 3 fixed the duration of the Act as two years, on an understanding of the situation as it then existed. At the same time, it conferred a power on the Rajpramukh to extend the life of the Ordinance beyond that period, if the state of affairs then should require it. When such extension is decided by the Rajpramukh and notified, the law that will operate is the law which was enacted by the legislative authority in respect of 'place, person,

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laws, powers', and it is clearly conditional and not delegated legislation as laid down in R. v. Burah,67 and must, in consequence, be held to be valid."

Referring to Sardar Inder Singh,68 and reiterating the principle laid down therein, this Court in State of T.N. v. K. Sabanayagam,69 speaking through S.B. Majumdar, J. stated: "It is thus obvious that in the case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter i.e. the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation."

In the case of conditional legislation, legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e. the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does not confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation.70 8. NEED FOR THE DOCTRINE OF EXCESSIVE DELEGATION It needs to be emphasized that the doctrine of Excessive Delegation is not a mere empty formalism or a mere matter of semantics. The doctrine has an important function to serve in Administrative Law. For an Administrative Lawyer, the doctrine has a significant practical utility. In the first place, the doctrine seeks to preserve the traditional role of the elected representatives of the people to make policies rather than hand over the function to politically unresponsive civil servants. The doctrine ensures that important choices of social policy be made by the legislature which is the most responsive branch of government to popular will, and not by bureaucracy. If no standards are prescribed to limit delegation of power, bureaucracy gets a blank cheque to make any rules it likes, and, thus, the concerned administrator and not the legislature, becomes the primary legislator. The doctrine thus promotes democracy and curbs bureaucracy.71 In the second place, the doctrine ensures that the legislature takes care in framing legislation and that while delegating authority, the legislature provides the recipient of that power with an "intelligible principle" to guide the exercise of the delegated discretion. Thus, the discretion of the delegate is controlled somewhat. In the third place, the doctrine serves as a safety valve which is necessary in the context of the functioning of the modern parliamentary system in a developing country. It provides the courts with a judicial tool to control delegation of legislative power beyond a legitimate degree. The doctrine enables the courts to obligate the legislature to devote some attention to formulation and enunciation of broad policies and enacting them as laws rather than leave the entire matter to bureaucratic discretion. The doctrine thus ensures that too much legislative power ought not to be delegated to the executive lest the executive should become too powerful and despotic. In the absence of any such restriction, the executive may persuade or pressurize the legislature to hand over to it blank cheques in the matter of delegated legislation. The relative ineffectiveness of legislature as a systematic check on the government's legislative ambitions and executive power is the general phenomenon of the modern parliamentary system. Not only the function of laying down of technical details but also formulation of policy is being delegated by the legislature to the executive. In the absence of such a doctrine, the courts will be left with no mechanism to control delegation of legislative power. As the CMP Report insists, delegated legislation has become inevitable but the question of control has become crucial.72 The doctrine of excessive delegation does obligate the legislature to state some policies, principles and

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guidelines in the statutes to guide the exercise of delegated discretion to some extent. The courts can use the doctrine, if they so like, to check extreme instances of delegation. In the fourth place, statements of policies in the statutes enable 'the courts later to apply the doctrine of ultra vires to delegated legislation in a more meaningful and effective manner. The doctrine of excessive delegation strengthens the application of the doctrine of ultra vires to assess judicially the validity of the delegated legislation itself. If a statute sets up standards in sufficiently precise terms so as to ensure that the relevant authority receives clear signals as regards the policy it is expected to carry out, the courts will have a workable standard for reviewing the rules made by the concerned authority.73 An important purpose underlying the rule of laying down policy in the delegating Act is that the discretion of the delegate in making rules would thereby be circumscribed to some extent, thus reducing the chance of misuse of power. The delegate will not feel entirely free to make whatever rules he wants if policy is stated in the Act; the emerging rules can be tested in the light of the policy laid down in the statute and the rules going beyond the policy could be held ultra vires.74 Therefore, if the policy is stated in very vague and general terms, its efficacy as a restraint on the delegate would be weakened. The broader the terms of delegation, the greater is the difficulty in applying the doctrine of ultra vires and control the exercise of power. This weakens judicial control for in such a case, there is no definite standards which the courts can apply to adjudge whether delegated legislation is ultra vires or intra vires the statute.75 Therefore, in considering whether a particular case is a case of excessive delegation or not, it may be useful for the courts to examine whether in the context of the subject-matter of legislation, it was possible or reasonably practical for the legislature to provide more definite standards without undue sacrifice of administrative efficiency, and whether there exist in the law some procedural and democratic safeguards against abuse of power. While it is recognised that the doctrine of excessive delegation ought not to be applied in a pedantic manner because in the modern complex world, it may be difficult for the legislature to state policies or formulate standards very articulately, and power has to be given to the Administration in, broad terms to make rules according to the needs of the situation. But still the courts must ensure that the doctrine does not become just an incantation or an empty formality. It is necessary to have some limiting doctrine on the legislature in the matter of delegation. The doctrine should not be watered down unduly as there is great merit in the legislature laying down standards in the statute so as to control the actions of the delegate.76 The doctrine of excessive delegation is very appropriate to promote democracy in the country. As Khanna, J., delivering the majority opinion in Gwalior Rayon said: "The rule against excessive delegation of the legislative authority flows from and is a necessary postulate of the sovereignty of the people."77 The Supreme Court has itself emphasized that "delegation unlimited may invite despotism uninhibited."78 The Supreme Court has cautioned in Avinder:79 "... constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may on critical occasions, be subversive of responsible government and erosive of democratic order."

The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject-matter, the scheme, the provisions of the statute including its preamble and the facts and circumstances in the background of which the statute is enacted.80 The question whether a particular delegated legislation is in excess of the power of the supporting legislation conferred on the delegate, has to be determined with regard not only to specific provisions contained in the relevant statue conferring the power to make rules or regulations, but also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion as to what principle or policy would best serve the objects and purposes of the Act; nor is it open to the Court to sit in judgment over the wisdom, the effectiveness or otherwise of the policy, so as to declare a regulation ultra vires merely on the ground that, in the view of the Court, the impugned provision will not help to carry through the object and purposes of the Act.81 The Supreme Court reiterated the legal position, well established by a long series of decisions in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth:82 "So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose

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of the statute, the Court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statue."

Applying this test, the Supreme Court found itself unable to hold that the impugned circular No. 789 dated 30.3.1994 issued by CBDT amounts to impermissible delegation of legislative power. That the amendment made in Section 90 of the I.T. Act, 1961 was intended to empower the Government to enter into an agreement with a foreign Government, if necessary, for relief from or avoidance of double taxation, is also made clear by the Finance Minister in his Budget speech, 1953-54.83 In exercise of the power conferred by Section 28 of the Advocates Act, 1961 to the State Bar Councils to frame rules as to "Right to practise" legal profession, the Bar Council of Maharashtra and Goa framed Maharashtra and Goa Bar Council rules of which R. (1) prescribed eligibility conditions for the enrolment of an advocate. It disqualified persons to be admitted as advocates, if they were already engaged in any other profession such as medical profession in the instant case. It was contended that the said rule was vitiated on the ground of excessive delegation of legislative function. The Apex Court held that it was not vitiated on the alleged ground as it effectuated the object, the purpose and the scheme of the Act which laid down a complete Code and provided enough guidelines and hence fell within the rule-making power of the State Bar Council.84 Sections 3 and 4 of the Pondicherry Municipal Decree (Levy and Validation of Taxes, Duties, Cesses and Fees) Act, 1973 were challenged to be ultra vires on the ground of excessive delegation; but the Supreme Court observed that the question of their being ultra vires was not relevant because by virtue of the said provisions, there followed no subordinate or delegated legislation and the delgatee had to take no decision. Section 3 of the 1973 Act was enacted by the competent legislature, specifically empowering the levy of any tax, duty, cess or fee which the legislature of a Union Territory had the power to levy and Section 4 validates the taxes already levied, assessed and collected.85 In this connection, it may be worthwhile to mention that the doctrine of excessive delegation can play a very useful role in curbing executive power during an emergency under Art. 352 of the Constitution when fundamental rights under 14 and 19 are suspended. 86 The doctrine of excessive delegation arose in the U.S.A., and became moribund in course of time. But, there the dilution of the delegation doctrine has been compensated by two significant developments: (1) development of procedural safeguards in the making of delegated legislation. The Federal A.P.A. imposes a number of safeguards, especially the consultative procedure called "notice and comment". This leads to some democratisation of rule-making;87 (2) Increasing legislative control over delegated legislation. Many statutes give "legislative veto" to Congress which enables one or both Houses of Congress to disapprove delegated legislation by passage of an annulling resolution.88 Efforts are being made to enact a law providing for general legislative review of delegated legislation and, according to Schwartz, "this may help restore the balance which has been tilted unduly by the judicial reluctance... to exercise control over the delegation of power themselves".89 In the U.S.A., because of the governmental system based on Separation of Powers, Congress is not totally under the thumb of the Executive.90 But, in India, not much development has taken place in the area of procedures to make rules; consultation is not yet a normal procedure; nor does Parliament exercise any effective control over delegated legislation,91 and the party system makes parliamentary control over the executive rather nominal. Even judicial control is minimal as courts tend to interpret the delegating provision broadly and rarely hold the rules ultra vires.92 Hence the great significance of the doctrine of excessive delegation in India applied meaningfully. The doctrine of excessive delegation should not only be supported by the courts but even be applied in a vigorous manner so as to win from the legislature substantive and procedural safeguards in the area of delegated legislation. The doctrine of excessive delegation is again showing signs of resurrection in the U.S.A. It is being emphasized by scholars that there must be some limit on the extent to which Congress can transfer its own powers to other bodies without guidance to how these powers are to be exercised.93 Even the U.S. Supreme Court Judges have now emphasized from time to time

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that delegation of legislative power must be accompanied by discernible standards. As Justice Rehnquist of the U.S. Supreme Court has observed very forcefully:94 "We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority. . . Indeed, a number of observers have suggested that the Court should once more take upsits burden of ensuring that Congress does not necessarily delegate important choice of social policy to politically unresponsive administrators".

It may be of interest to note that while the U.S. Supreme Court has diluted the non-delegation doctrine over time, the State Courts "still adopt a strict attitude towards delegations." While the U.S. Supreme Court has upheld broad delegations since 1935, there are State cases after 1935 which have struck down delegations on the ground that the enabling legislation contains no adequate standards.95 In Ajoy Kumar Banerjee v. U.O.I.,96 the Supreme Court held that the Legislature must retain in its own hand the essential legislative function which consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law with sufficient clearness, and what can be delegated is the task of subordinate legislation which by very nature is ancillary to the statute which delegates the power to make it effective. The Courts cannot and do not interfere on the discretion that undoubtedly rests with the Legislature itself in determining the extent of the delegated power in a particular case. The Supreme Court97 has held: "So far as the delegated legislation is concerned, the case-law will throw light as to the manner in which the same has to be understood and in each given case we have to understand the scope of the provisions and no uniform rule could be laid down. The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanaslised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law-making to Parliament and the legislatures of States, it impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. An area of compromise is struck that Parliament cannot work in detail the various requirements of giving effect to the enactment and, therefore, that area will be left to be filled in by the delgatee. Thus, the question is whether any particular legislation suffers from excessive delegation and in ascertaining the same, the scheme, the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted, the history of the legislation, the complexity of the problems which a modern State has to face, will have to be taken note of and if, on a liberal construction given to a statue, a legislative policy and guidelines for its execution are brought out, the statute, even if skeletal, will be upheld to be valid but this rule of liberal construction should not be carried by the Court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive."

The proviso to Rule 10(3) of the M.P. Non-Gazetted Class III Education Service (Non-Collegiate Service) Recruitment and Promotion Rules, 1973 (as inserted vide amendment dated 10.5.1993), gives to the State Govt., in consultation with the General Administration Department, power to prescribe separate criteria and procedure for selection of candidates in specific circumstances. It was contended that it confers unguided and excessive delegation of powers on the State Govt. The Supreme Court held that the question of excessive delegation does not arise because the rule-making authority has given to itself the power to frame the special rules prescribing criteria and procedure in specific circumstances.1 In S. Samuel, M.D., Harrisons Malayalam v. Union of India,2 the Supreme Court held that the Central Government can delegate any of its statutory powers to the State Governments, if permitted by law. Three things should be clearly understood: (i) Since in practice Government demands a great deal of delegation, this has to be authorised by statute, either expressly or impliedly. (ii) A statutory power to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything. (iii) Implied power to delegate is not commonly found in peacetime legislation. The instant case is concerned with delegation of power by the Central Government under Section 5 of the Essential Commodities Act, 1955 to the State Government as to which the Apex Court held that it could be in relation to "such matter" as may be specified in the direction. If there is abdication of legislative power or there is excessive delegation or if there is a total surrender or

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transfer by the legislature of its legislative functions to another body then that is not permissible. There is, however, no abdication, surrender of legislative functions or excessive delegation so long as the legislature has expressed its will on a particular subject-matter, indicated its policy and left the effectuation of the policy to subordinate or subsidiary or ancillary legislation, provided the legislature has retained the control in its hand with reference to it so that it can act as a check or a standard and prevent or undo the mischief by subordinate legislation when it chooses to or thinks fit.3 The Supreme Court declared that the Section 116(3) of the Delhi Municipal Corporation Act 66 of 1957 is invalid as it delegates unguided and uncanalised legislative powers to the Commissioner to declare any plant or machinery as part of land or building for the purpose of determination of the rateable value thereof.4

1 CARR, Concerning English Administrative Law (1941); ALLEN, Law and Orders; PEARCE, Delegated Legislation, (1977). 2 Cited by the Supreme Court in Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], para 21 : AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 3 WADE & FORSYTH: Administrative Law, 8th Edn., 2000, at p. 839. 4 Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 5 (1890) 25 QBD 391: 63 LT 348. 6 As cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 7 Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8) : AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 8 Battelley v. Finsbury Borough Council, 1958 LGR 165 as cited in Ishwar Singh v. State of Rajasthan, (2005) 2 SCC 334 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10], 338 (para 8): AIR 2005 SC 773 [LNIND 2005 SC 10] [LNIND 2005 SC 10] [LNIND 2005 SC 10]. 9 See, Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918: 1972 (2) LLJ 259: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]; contra, K.I. Shephard v. Union of India, AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]: (1989) 1 SCC 321: AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: 1988 (1) LLJ 162: (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]. 10 AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], 1337: (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]. 11 See, Infra, under Public Enterprises 12 See, Infra, under Public Enterprises. For instance, the power to make bye-laws by the concerned statutory body is to be found in the following statutes: The Coir Industry Act, 1953; The Tea Act, 1953. 13 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 331 (para 10): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. 14 Associated Cement Companies Ltd. v. State of M.P., (2005) 5 SCC 347 [LNIND 2005 SC 336] [LNIND 2005 SC 336] [LNIND 2005 SC 336], 356 (para 14): AIR 2005 SC 2461 [LNIND 2005 SC 336] [LNIND 2005 SC 336] [LNIND 2005 SC 336]. 15 See, M.P. JAIN, Administrative Process under the Essential Commodities Act, 1955 (1964). For extracts from the book, see, JAIN, Cases, Chapter I. 16 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 331 (para 10): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. 17 (2004) 1 SCC 86, 98-99 (paras 29, 30 and 31): AIR 2004 SC 613, relying on State of A.P. v. K. Purushotham Reddy, (2003) 9 SCC 564 [LNIND 2003 SC 310] [LNIND 2003 SC 310] [LNIND 2003 SC 310]: AIR 2003 SC 1956 [LNIND 2003 SC 310] [LNIND 2003 SC 310] [LNIND 2003 SC 310]and Preeti Srivastava (Dr.) v. State of M.P., (1999) 7 SCC 120 [LNIND 1999 SC 665] [LNIND 1999 SC 665] [LNIND 1999 SC 665]: AIR 1999 SC 2894 [LNIND 1999 SC 665] [LNIND 1999 SC 665] [LNIND

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1999 SC 665]. 18 Mewa Singh v. Shiromani Gurdwara Prabandhak Committee, (1999) 2 SCC 60, 66 (para 7): AIR 1999 SC 688. 19 G.B. Pant University of Agriculture & Technology v. State of U.P., (2000) 7 SCC 109 [LNIND 2000 SC 1098] [LNIND 2000 SC 1098] [LNIND 2000 SC 1098], 116 (para 9): AIR 2000 SC 2695 [LNIND 2000 SC 1098] [LNIND 2000 SC 1098] [LNIND 2000 SC 1098]. 20 Ganga Retreat & Towers Ltd. State of Rajasthan, (2003) 12 SCC 91 [LNIND 2003 SC 1147] [LNIND 2003 SC 1147] [LNIND 2003 SC 1147], 110 (para 31). 21 Ajay Kumar Bhuyan v. State of Orissa, (2003) 1 SCC 707 [LNIND 2002 SC 764] [LNIND 2002 SC 764] [LNIND 2002 SC 764], 717-18 (para 11). 22 Ganga Retreat & Towers Ltd. v. State of Rajasthan, (2003) 12 SCC 91 [LNIND 2003 SC 1147] [LNIND 2003 SC 1147] [LNIND 2003 SC 1147], 118 (para 49). 23 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], 524, para 22: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 24 DE SMITH, Constitutional and Adm. Law, 349 (1985). 25 Consumer Action Group v. State of T.N., (2000) 7 SCC 425 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130], para 18: AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]. 26 Supra, Chapter I. 27 On the circumstances leading to the appointment of the CMP, see, supra, Chapter III. 28 CMP Report, 23. For excerpts from this Report, see, JAIN, Cases, Chapter III. 29 CMP Report, 5. 30 Ajay Kumar Bannerjee v. Union of India, AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: (1984) 3 SCC 127. 31 On Consultation, see, infra, Chapter VI. 32 WADE and PHILLIPS, Constitutional Law, 608 (1965). 33 CMP Report, 52. 34 Committee on Ministers' Powers Report, at 4, 5, 23, 51, 52 (1932). 35 Committee on Ministers' Power Report, 5 (1932). 36 Committee on Ministers Power Report, at 51 (1932). Also see, JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 361 (1947). 37 Tata Iron and Steel Co. v. Workmen, AIR 1972 SC 1917 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300], 1922: 1972 (2) LLJ 259 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]. 38 See, Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340; JAIN, Cases, 77, 115. For reference to the circumstances leading to the growth of delegated legislation in India. See, JAIN, Cases, Chapter III. 39 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], 524, para 23: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]. 40 Lord HEWART, The New Despotism (1929). 41 Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 8: AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], relying on Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edn., 1999, PP. 689-90. 42 (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 14: AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344]. 43 Infra, Chapter V. under Judicial Control of Delegated Legislation.

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44 CMP Report, 21. 45 WADE, The Basis of Legal Sovereignty, (1955) Camp. L.J. 172. 46 CMP Report, 62. 47 See under heading: Separation of Powers, Chapter II . 48 HORSE P. EHMKE, Delegate Potestas Non Potest Delegari--A maxim of American Constitutional Law, 47 Cornell L.Q., 50 (1961); JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 359 (1947). Also see, infra, Chapters VII and XXI, under sub-delegation. 49 Panama Refining Co. v. Ryan, 293 US 388, 434 (1935); JAIN, Cases, 30. This case is known popularly as the Hot Oil case. 50 SCHWARTZ and WADE, Legal Control of Government, 85-6; SCHWARTZ, American Adm. Law--A Synoptic Survey, (1979) 14 Israel L.R., 413-15. Also see, JAIN, Cases, Chapter III, 30. 51 293 US 388, 434 (1935). For the text of the case, see, JAIN, Cases, Chapter III. 52 321 U.S. 414 (1944). See, JAIN, Cases, 35, 352. 53 Besides Panama, two other cases are: Schechter v. U.S., 295 U.S. 495 (1935); Carter v. Carter Coal Co., 298 U.S. 238 (1936). 54 Federal Energy Adm. v. Algonquin, 426 U.S. 458, 599 (1976). Also, Justice REHNQUIST in American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,543 (1981). 55 DAVIS, Administrative Law, 54 (1951). Also JAFFE, An Essay on Delegation of Legislative Power, 47 Col. L.R., 359 (1947); WADE, Anglo-American Adm. Law: Some Reflections, 81 LQR 357, 372 (1965); Lichter v. U.S., 334 U.S. 742 (1948); SCHWARTZ. American Adm. Law A synoplic Survey, (1979) 14 Israel L.R. 413-15. 56 J. SKELLY WRIGHT, Beyond Discretionary Justice, 81 Yale L.J., 575 (1972); U.S. v. Robel, 389. U.S. 258 (1967); Justice HARLAN (joined by Justices DOUGLAS and STEWART) in Arizona v. California, 373 U.S. 546 (1963). 57 National Cable Television Assn., v. U.S., 415 U.S. 336 (1974). 58 SCHWARTZ, Administrative Law-A Casebook, 117 (1988). 59 AIR 1949 FC 175. 60 Rajnarain v. Chairman, Patna Administration Committee, AIR 1954 SC 567. Also see, JAIN, Cases, Chapter III, 153. 61 AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. For text of the case, see, JAIN, Chapter III, 39. 62 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], as cited in M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 784-85 (para 39 to 43). 63 Delhi Laws Act, 1912, In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 791-92: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 64 Delhi Laws Act, 1912, In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 797-78: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], per KANIA, C.J. 65 Delhi Laws Act, 1912 In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 828-29: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 66 Delhi Laws Act, 1912 In re, 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], 830-31: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40], per FAZAL ALI, J. 67 1951 SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]. 68 M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789-90 (paras 50 and 51). 69 Gwalior Rayon Co. v. Asst. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. See, JAIN, Cases, Chapter III, 48. 70 Gwalior Rayon Co. v. Asstt. Commr. Of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98, at 1678.

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71 Gwalior Rayon Co. v. Asstt. Commr. Of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98, at 1667. 72 Although MATHEW, J.'s view was rejected decisively by the majority in Gwalior Rayon, MATHEW, J., again took opportunity to reiterate his view while delivering the opinion of a three Judge Bench in N.K Papiah v. Excise Commissioner, AIR 1975 SC 1007 [LNIND 1975 SC 607] [LNIND 1975 SC 607] [LNIND 1975 SC 607]: (1975) 1 SCC 492, and validated a very broad delegation of taxing power by applying the theory that since the legislature retained the power to repeal the provision delegating the power, there was no abdication of legislative power. No reference was made to Gwalior Rayon in Papiah. The authority of Papiah is extremely doubtful especially when the Gwalior Rayon view has been reiterated in numerous later cases. For comments on these cases see, Administrative Law, X ASIL, 507-10 (1974) and XI ASIL, 458-60 (1975). 73 AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], 1050: (1976) 1 SCC 466 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]. For comments see XII ASIL 475 (1976). 74 Registrar, Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 351: (1980) 1 SCC 340. 75 Registrar, Co-operative Societies v. K. Kunjabmu, 1980 SC 350: (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472], at 352. 76 (2002) 1 SCC 589 [LNIND 2001 SC 2784] [LNIND 2001 SC 2784] [LNIND 2001 SC 2784], 594, 599 (paras 3 and 9): AIR 2002 SC 302 [LNIND 2001 SC 2784] [LNIND 2001 SC 2784] [LNIND 2001 SC 2784]. 77 Ajay Kumar Banerjee v. Union of India, AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: 1984 (1) LLJ 368: (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]; JAIN, Cases, 191. Also, Ramesh Birch v. Union of India, AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. For text of the case, see, JAIN Cases, Chapter III, 72. 78 Harakchand R. Banthia v. Union of India, AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199]. See, JAIN, Cases, Chapter III, 97. 79 B.R. Enterprises v. State of U.P., (1999) 9 SCC 700 [LNIND 1999 SC 517] [LNIND 1999 SC 517] [LNIND 1999 SC 517], para 81: AIR 1999 SC 1867 [LNIND 1999 SC 517] [LNIND 1999 SC 517] [LNIND 1999 SC 517]. 80 (1997) 2 SCC 320, paras 12 to 14. 81 See, Bhatnagars & Co. v. Union of India, AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701. 82 See, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; Garewal v. State of Punjab, AIR 1961 SC 4: (1961) 1 SCR 341. 83 Gwalior Rayon v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 84 Registrar, Co-op. Soc. v. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 85 AIR 1983 SC 512; JAIN, Cases, 216. 86 The Court invoked D.S. Garewal v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792, JAIN, Cases, 61, in support of this view. Garewal should be regarded as an exception rather than the rule. 87 AIR 1985 SC 512. See, JAIN, Cases, Chapter III, 69. 88 Infra, Chapter VI. 89 Infra, Chapter V. Also see, LE. Newspapers case, JAIN, Cases, 211. 90 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], paras 44, 45 and 48: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 91 (2006) 7 SCC 188 [LNIND 2006 SC 605] [LNIND 2006 SC 605] [LNIND 2006 SC 605], 200 (para 13), relying on CBI v. State of Rajasthan, (1996) 9 SCC 735 [LNIND 1996 SC 1008] [LNIND 1996 SC 1008] [LNIND 1996 SC 1008] and Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196]: (1962) 2 SCR 195: (1961) 2 Crlj 828. 92 Ramesh Birch v. Union of India, AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. Also see, A. MOHANDOSS, Towards and Away from Delhi Laws Act Case, 26 J.I.L.I., 100 (1984); K.C. JOSHI, Questions of Legislative Policy in Delegated Legislation; Recent Cases, 18 J.I.L.I., 509 (1976). Also see, infra, this Chapter.

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93 State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 92 (paras 19 and 20): AIR 2005 SC 3401 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681]. 94 Agricultural Market Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], paras 24 and 24: AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], relying on Vasantlal Maganbhai Sanjanwala v. State of Bombay, AIR 1961 SC 4: (1961) 2 SCR 341; Municipal Corpn. Of Delhi v. Birla Cotton, Spg. And Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251; In re Delhi Laws Act, 1912, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]and Avinder Singh v. State of Punjab, (1979) 1 SCC 137 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: AIR 1979 SC 312. 95 M.P. High Court Bar Association v. Union of India, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 784 (para 38). 96 Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 28 (para 31): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 97 Process Technicians & Analyst's Union v. U.O.I., (1997) 10 SCC 142: AIR 1997 SC 1288. 98 Quarry Owners' Association v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], paras 36 and 38: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]; following Avinder Singh v. State of Punjab, (1979) 1 SCC 137 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]; Municipal Corpn. of India v. Birla Cotton, Spg. and Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. 1 Quarry Owners' Assn. v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 42: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], following Bhatnagars & Co. Ltd. v. U.O.I., (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 42: 1957 SCR 701 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]; Municipal Corpn. of Delhi v. Birla Cotton Spg. and Wvg. Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251 and D.K. Trivedi & Sons v. State of Gujarat, 1986 Supp SCC 20. 2 Kiran Gupta v. State of U.P., (2000) 7 SCC 719 [LNIND 2000 SC 1315] [LNIND 2000 SC 1315] [LNIND 2000 SC 1315], para 12, following Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947, Re, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747, 982. See also People's Union for Civil Liberties v. U.O.I., (2004) 2 SCC 476, 493-94 (paras 37-42): AIR 2004 SC 1462; Andhra Bank v. B. Satyanarayana, (2004) 2 SC 657, 660-661 (paras 9-13): AIR 2004 SC 4007 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203]; State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 95 (para 30 and 32). 3 (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 485 (para 27): AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]. 4 Kiran Gupta v. State of U.P., (2000) 7 SCC 719 [LNIND 2000 SC 1315] [LNIND 2000 SC 1315] [LNIND 2000 SC 1315], para 14, following Krishna Chandra Sahu v. State of Orissa, (1995) 6 SCC 1 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889]: AIR 1996 SC 352 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889]. 5 Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 140 (para 40): AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. 6 Sushil Flour Dal & Oil Mills v. Chief Commissioner, (2000) 10 SCC 652. 7 A. Nadamuni v. Prohibition & Excise Commissioner, (1997) 2 SCC 695 [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79], 696 (para 3): AIR 1997 SC 1021 [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79] [LNINDORD 1997 SC 79]. 8 M.C. Mehta v. U.O.I, 1997 (7) Scale 114: JT 1997 (9) SC 213 [LNIND 1997 SC 1461] [LNIND 1997 SC 1461] [LNIND 1997 SC 1461]. 9 Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board, (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 484 (para 20) AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]. 10 Jagjit Cotton Textile Mills v. Chief Commercial Superintendent, N.R., (1998) 5 SCC 126 [LNIND 1998 SC 467] [LNIND 1998 SC 467] [LNIND 1998 SC 467], 141 (paras 24 to 26 and 38): AIR 1998 SC 1959 [LNIND 1998 SC 467] [LNIND 1998 SC 467] [LNIND 1998 SC 467]. See also State of Karnataka v. B. Suvarna Malini, (2001) 1 SCC 728 [LNIND 2001 SC 39] [LNIND 2001 SC 39] [LNIND 2001 SC 39], 732 (para 4): AIR 2001 SC 606 [LNIND 2001 SC 39] [LNIND 2001 SC 39] [LNIND 2001 SC 39]. 11 Medical Council of India v. State of Karnataka, (1998) 6 SCC 131 [LNIND 1998 SC 609] [LNIND 1998 SC 609] [LNIND 1998 SC 609], 154 (para 24): AIR 1998 SC 2423 [LNIND 1998 SC 609] [LNIND 1998 SC 609] [LNIND 1998 SC 609].

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12 M.C. Mehta v. Union of India, (2004) 12 SCC 118 [LNIND 2004 SC 367] [LNIND 2004 SC 367] [LNIND 2004 SC 367], 160-61 (para 37): AIR 2004 SC 4016 [LNIND 2004 SC 367] [LNIND 2004 SC 367] [LNIND 2004 SC 367]. 13 Andhra Bank v. B. Satyanarayana, (2004) 2 SCC 657 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203], 661 (para 10): AIR 2004 SC 4007 [LNIND 2004 SC 203] [LNIND 2004 SC 203] [LNIND 2004 SC 203]. 14 National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 [LNIND 2004 SC 20] [LNIND 2004 SC 20] [LNIND 2004 SC 20], 338 (para 94): AIR 2004 SC 1531 [LNIND 2004 SC 20] [LNIND 2004 SC 20] [LNIND 2004 SC 20]. 15 R.B.I. v. Cecil Dennis Solomon, (2004) 9 SCC 461 [LNIND 2003 SC 1050] [LNIND 2003 SC 1050] [LNIND 2003 SC 1050], 467 (para 8): AIR 2004 SC 3196 [LNIND 2003 SC 1050] [LNIND 2003 SC 1050] [LNIND 2003 SC 1050]. 16 Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 [LNIND 2005 SC 100] [LNIND 2005 SC 100] [LNIND 2005 SC 100], 589-91 (paras 107 and 112): AIR 2005 SC 2731 [LNIND 2005 SC 100] [LNIND 2005 SC 100] [LNIND 2005 SC 100]. 17 R.K. Goyal (Dr.) v. State of U.P., (1996) 11 SCC 658 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062], 662 (para 8): AIR 1997 SC 1567 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062], relying on Ganga Prasad Verma (Dr.) v. State of Bihar, 1995 Supp (1) SCC 192: 1995 SCC (L&S) 383: (1995) 29 ATC 154: Ajay Kumar Singh v. State of Bihar, (1994) 4 SCC 401: AIR 1998 SC 2111 [LNIND 1998 SC 554] [LNIND 1998 SC 554] [LNIND 1998 SC 554]; Govt. of A.P. v. R. Murali Babu Rao, (1988) 2 SCC 386 [LNIND 1988 SC 160] [LNIND 1988 SC 160] [LNIND 1988 SC 160]: 1988 SCC (L&S) 610 (1988) 7 ATC 316: (1988) 3 SCR 173 [LNIND 1988 SC 160] [LNIND 1988 SC 160] [LNIND 1988 SC 160]. 18 Prem Kumar Verma v. Union of India, (1998) 5 SCC 457 [LNIND 1998 SC 438] [LNIND 1998 SC 438] [LNIND 1998 SC 438], 460 (para 5): AIR 1998 SC 2854 [LNIND 1998 SC 438] [LNIND 1998 SC 438] [LNIND 1998 SC 438]. 19 (2000) 4 SCC 640 [LNIND 2000 SC 481] [LNIND 2000 SC 481] [LNIND 2000 SC 481]: AIR 2000 SC 1296 [LNIND 2000 SC 481] [LNIND 2000 SC 481] [LNIND 2000 SC 481]. See also Commissioner of Central Excise v. Ashok A.R.C., (2005) 9 SCC 223, 225 (para 7). 20 Haryana State Co-operative Land Development Bank Ltd. v. Haryana State Co-operative Land Development Banks Employees' Union, (2004) 1 SCC 574 [LNIND 2003 SC 1127] [LNIND 2003 SC 1127] [LNIND 2003 SC 1127], 580 (paras 12 and 13). 21 State Authority of India Ltd. v. State of MP., (1999) 4 SCC 76 [LNIND 1999 SC 343] [LNIND 1999 SC 343] [LNIND 1999 SC 343], 84 (paras 23 and 24): AIR 1999 SC 1630 [LNIND 1999 SC 343] [LNIND 1999 SC 343] [LNIND 1999 SC 343]. 22 (1999) 4 SCC 720 [LNIND 1999 SC 480] [LNIND 1999 SC 480] [LNIND 1999 SC 480], 723 (para 14): AIR 1999 SC 1937 [LNIND 1999 SC 480] [LNIND 1999 SC 480] [LNIND 1999 SC 480]. 23 Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212, 232 (para 28): AIR 2001 SC 1493. 24 OCL India Ltd. v. State of Orissa, (2003) 2 SCC 101 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818], 106 (paras 13 and 14): AIR 2003 SC 2148 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]. 25 P. Srinivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459 [LNIND 2004 SC 136] [LNIND 2004 SC 136] [LNIND 2004 SC 136], 462 (para 10). 26 Gopalji Khanna v. Allahabad Bank, (1996) 3 SCC 538 [LNIND 1996 SC 2642] [LNIND 1996 SC 2642] [LNIND 1996 SC 2642], 542 (para 7): AIR 1996 SC 1729 [LNIND 1996 SC 2642] [LNIND 1996 SC 2642] [LNIND 1996 SC 2642]. 27 High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 [LNIND 2003 SC 312] [LNIND 2003 SC 312] [LNIND 2003 SC 312], 732 (para 27): AIR 2003 SC 1201 [LNIND 2003 SC 312] [LNIND 2003 SC 312] [LNIND 2003 SC 312], relied on Vimal Kumari v. State of Haryana, (1998) 4 SCC 114 [LNIND 1998 SC 140] [LNIND 1998 SC 140] [LNIND 1998 SC 140]. 28 (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 632 (para 37), relying on Union of India v. V. Ramakrishnan, (2005) 8 SCC 394 [LNIND 2005 SC 809] [LNIND 2005 SC 809] [LNIND 2005 SC 809] (paras 23 and 24): AIR 2005 SC 4295 [LNIND 2005 SC 809] [LNIND 2005 SC 809] [LNIND 2005 SC 809]. 29 ONGC Ltd. v. G.S. Chugani, AIR 1999 SC 1784: (1999) 1 SCC 194. 30 Chief Forest Conservator (Wildlife) v. Nisar Khan, (2003) 4 SCC 595 [LNIND 2003 SC 219] [LNIND 2003 SC 219] [LNIND 2003 SC 219], 599 (para 19): AIR 2003 SC 1867 [LNIND 2003 SC 219] [LNIND 2003 SC 219] [LNIND 2003 SC 219]. 31 R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52 (para 50). 32 AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333], 33 (para 21): (1989) 3 An LT 66 (FB), as cited in R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52 (para 50): AIR 2004 SC 692. 33 Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333], 51 (para 50).

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34 R. Sai Bharathi v. J. Jayalalitha, (2004) 2 SCC 9, 52-53 (para 50): AIR 2004 SC 692. 35 Behari Kunj Sahkari Awas Samiti v. State of U.P, (1997) 7 SCC 37 [LNIND 1997 SC 1090] [LNIND 1997 SC 1090] [LNIND 1997 SC 1090], 40 (paras 7 and 8): AIR 1997 SC 3123 [LNIND 1997 SC 1090] [LNIND 1997 SC 1090] [LNIND 1997 SC 1090], following Roop Chand v. State of Punjab, AIR 1963 SC 1503 [LNIND 1962 SC 328] [LNIND 1962 SC 328] [LNIND 1962 SC 328]: 1963 Supp (1) SCR 539. 36 S. Said-ud-din v. Court of Welfare Commissioner Bhopal Gas Victims, (1997) 11 SCC 460 (para 2). 37 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 23): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], relying on National Sewing Thread Co.Ltd. v. James Chadwick & Bros. Ltd., AIR 1953 SC 357 [LNIND 1953 SC 57] [LNIND 1953 SC 57] [LNIND 1953 SC 57]: 1953 SCR 1028. 38 State of Orissa v. Commmissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 22): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. See also OCL India Ltd. v. State of Orissa, (2003) 2 SCC 101 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]: AIR 2003 SC 2148 [LNIND 2002 SC 818] [LNIND 2002 SC 818] [LNIND 2002 SC 818]. 39 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 172 (para 24): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], partly approving to this extent Ramakanta v. Gaji Pratap Singh, (1974) 40 Cut LT 917. 40 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 174-75 (para 27): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 41 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 174 (para 28): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], relying on Roop Chand v. State of Punjab, AIR 1963 SC 1503 [LNIND 1962 SC 328] [LNIND 1962 SC 328] [LNIND 1962 SC 328]: 1963 Supp (1) SCR 539; Bechari Kunj Sahakari Awas Samiti v. State of U.P., (1997) 7 ACC 37and Maharajah Moheshur Singh v. Bengal Govt., (1857-60) 7 MIA 283: 3 WR 45 (PC). 42 State of Orissa v. Commissioner of land Records and settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 17475 (para 31): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 43 State of Orissa v. Commissioner of Land Records and Settlement, (1998) 7 SCC 162 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568], 175 (para 34): AIR 1998 SC 3067 [LNIND 1998 SC 1568] [LNIND 1998 SC 1568] [LNIND 1998 SC 1568]. 44 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98,61-62. 45 The Supreme Court has itself projected this idea in some cases. For example, in Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918, 1922: (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]: 1972 (2) LLJ 259 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300], the Court said that the legislature "can only utilise other bodies or authorities for the purpose of working out the details within the essential principles laid down by it." In fact, at another place, the details were qualified as "subsidiary and ancillary details". 46 AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: 1954 Crlj 1322: 1955 (1) SCR 380 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]; See, JAIN, Cases, Chapter III, 56. 47 Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665, at 468. 48 Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665, at 469. 49 See, C. Lingam v. Union of India, AIR 1974 SC 474, where S. 3(2)(d) of the Essential Commodities Act, 1955, has been upheld against the challenge of excessive delegation. 50 M.P. JAIN, Administrative Process under the Essential Commodities Act, 1955. For some excerpts from this study, see, JAIN, Casebook, Chapter I. 51 AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701. Also see, JAIN, Cases, Chapter III, 59. 52 AIR 1964 SC 381 [LNIND 1952 SC 126] [LNIND 1952 SC 126] [LNIND 1952 SC 126]: 1964 (1) Crlj 269: 1964 (4) SCR 797 [LNIND 1963 SC 234] [LNIND 1963 SC 234] [LNIND 1963 SC 234]. 53 Garewal D.S. v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; JAIN, Cases, 61.

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54 A few other cases on the point are: Izhar Ahmad v. Union of India, AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215: 1962 Supp (3) SCR 235; Vasanlal Maganbhai Sanjanwala v. Bombay, AIR 1961 SC 4, JAIN, Cases, 64; Raghubar Dayal v. Union of India, AIR 1962 SC 263 [LNIND 1961 SC 296] [LNIND 1961 SC 296] [LNIND 1961 SC 296]: 1962 (3) SCR 547; State of Nagaland v. Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] [LNIND 1966 SC 77] [LNIND 1966 SC 77]: 1967 Crlj 265. 55 A.V. Nachane v. Union of India, AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: 1982 (2) LLJ 110: (1982) 1 SCC 205 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 56 AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215. Harshankar Bagla v. State of M.P., AIR 1954 SC 645: 1954 Crlj 1665. Also see, D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1986 Supp SCC 20; infra, Chapter VI; JAIN, Cases, 241. 57 Also see, infra, Chapter V. 58 CMP Report, 122. For extracts from this report, see, JAIN, Cases, Chapter III. 59 For amendment of schedule see, Mohmedalli v. Union of India, AIR 1964 SC 980 [LNIND 1962 SC 361] [LNIND 1962 SC 361] [LNIND 1962 SC 361]: 1963 Supp (1) SCR 993. 60 AIR 1964 SC 980 [LNIND 1962 SC 361] [LNIND 1962 SC 361] [LNIND 1962 SC 361]: 1963 (1) LLJ 536: 1963 Supp (1) SCR 993. 61 Such provisions have been upheld in a number of cases. See, for example, Kerala State Electricity Board v. Indian Aluminium Co. Ltd., AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]: (1976) 1 SCC 466; Saraswat Co-op. Bank Ltd. v. P.G. Koranne, AIR 1983 Bom. 317. 62 AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735: 1960 (2) SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]. Also see, JAIN, Cases, Chapter III; JAIN, Cases, 108. 63 V. Sudeer v. Bar Council of India, (1999) 3 SCC 176 [LNIND 1999 SC 246] [LNIND 1999 SC 246] [LNIND 1999 SC 246], 198 (para 16): AIR 1999 SC 1167 [LNIND 1999 SC 1609] [LNIND 1999 SC 1609] [LNIND 1999 SC 1609]. 64 For discussion on Art. 14, see, infra, Chapters V and XVIII. 65 AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]: 1966 (2) LLJ 546: 1967 (1) SCR 15 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]. Also see, JAIN, Chapter III; JAIN, Cases, 118. 66 AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 67 AIR 1986 SC 1541 [LNIND 1986 SC 132] [LNIND 1986 SC 132] [LNIND 1986 SC 132], 1543: (1986) 3 SCC 398 [LNIND 1986 SC 132] [LNIND 1986 SC 132] [LNIND 1986 SC 132]. Also see, State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761: (1988) 1 SCC 59; JAIN Cases, Chapter XVI. 68 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761: (1988) 1 SCC 59. P.J. Irani v. State of Madras, AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]: 1962 (2) SCR 169; also see, infra, under Discretionary Power, Chapters XV and XVI. 69 S. Kandaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290. Also see, JAIN, Cases, Chapters III and XV. 70 Supra, Chapter III. 71 See, for example, S. Kanaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290. AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290; also, Punjab Tin Supply v. Central Govt., AIR 1984 SC 87 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300]: (1984) 1 SCC 206; State of West Bengal v. Rash Behari Sarkar, (1993) 1 SCJ 479: JT 1993 (1) SC 1. 72 Infra, Chapters V and XVIII. 73 CMP Report supra. 74 In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747; Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. Rajnarain v. Chairman, PA. Committee, AIR 1954 SC 567: 1955 (1) SCR 290; Baban Naik v. Union of India, AIR 1979 Goa 1. 75 State of A.P. v. Vatsavji Kumara Venkata Krishna Verma, (1999) 2 SCC 297 [LNIND 1999 SC 9] [LNIND 1999 SC 9] [LNIND 1999 SC 9], 304 (para 14): AIR 1999 SC 745 [LNIND 1999 SC 9] [LNIND 1999 SC 9] [LNIND 1999 SC 9]. 76 AIR 1955 SC 25 [LNIND 1954 SC 130] [LNIND 1954 SC 130] [LNIND 1954 SC 130]: 1954 (2) LLJ 686: 1955 (1) SCR 735

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[LNIND 1954 SC 130] [LNIND 1954 SC 130] [LNIND 1954 SC 130]. Also see, JAIN, Cases, Chapter III, 106. 77 Banarsi Das v. State of Madhya Pradesh, AIR 1958 SC 909 [LNIND 1958 SC 40] [LNIND 1958 SC 40] [LNIND 1958 SC 40], 913: 1959 SCR 427 [LNIND 1958 SC 40] [LNIND 1958 SC 40] [LNIND 1958 SC 40]; Sable Waghire & Co. v. Union of India, AIR 1975 SC 1172 [LNIND 1975 SC 133] [LNIND 1975 SC 133] [LNIND 1975 SC 133]: (1975) 1 SCC 763. 78 Also see, infra, this chapter, under Taxing Powers. 79 AIR 1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272]: (1979) 3 SCC 616. 80 Sasa Musa Sugar Works v. State of Bihar, (1996) 9 SCC 681 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363], 705 (paras 30 and 31): AIR 1997 SC 188 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363], followed in Bihar State Agrl. Mkt. Board v. Anil Prasant, (2005) 10 SCC 173 (paras 1 and 6). 81 In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. 82 AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]: 1955 (1) SCR 290. Also see, JAIN, Cases, Chapter III, 101. 83 Rajnarain v. Chairman Patna Administration Committee, AIR 1954 SC 567, at 575. 84 Also see, infra, Chapter VI, under 'Consultation'. 85 AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953; XII A.S.I.L. 475 (1976); JAIN, Cases, Chapter III, 102. 86 See, In re Delhi Laws Act, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. The title of the Act has been changed from the Part C States (Laws) Act, 1950 to the Union Territories (Laws) Act, 1950, because Part C States have disappeared and Union Territories have appeared instead. 87 See, B. Shama Rao v. Union territory of Pondicherry, AIR 1967 SC 1480 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND 1967 SC 39]: 1967 (2) SCR 650, JAIN Cases 99; and also, the minority view in Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788 [LNIND 1966 SC 83] [LNIND 1966 SC 83] [LNIND 1966 SC 83]: 1966 (3) SCR 885. 88 AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561; JAIN, Cases, 110. 89 Brij Sunder Kapoor v. First Additional District Judge, AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561, 583. 90 Brij Sunder Kapoor v. First Additional District Judge, AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525] [LNIND 1988 SC 525]: (1989) 1 SCC 561, 574. 91 AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430. For the text of Ramesh Birch, See, JAIN, Cases, Chapter III, 72. 92 AIR 1971 SC 454 [LNIND 1970 SC 352] [LNIND 1970 SC 352] [LNIND 1970 SC 352]: (1970) 2 SCC 820. 93 Report of the CMP. 94 Report of the CMP2, 39, 59-61. Also see, Central Inland Water Transport Corp. Ltd. v. Brojo Nath, AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: (1986) 3 SCC 156: 1986 (2) LLJ 171 [LNIND 1986 SC 112] [LNIND 1986 SC 112] [LNIND 1986 SC 112]; JAIN, Cases, Chapter IV. 95 Gammon India Ltd. v. Union of India, AIR 1974 SC 960 [LNIND 1974 SC 109] [LNIND 1974 SC 109] [LNIND 1974 SC 109]: (1974) 1 SCC 596: 1974 (1) LLJ 489 [LNIND 1974 SC 109] [LNIND 1974 SC 109] [LNIND 1974 SC 109]; I.N. Rao v. State, AIR 1977 AP 178 [LNIND 1976 AP 164] [LNIND 1976 AP 164] [LNIND 1976 AP 164]. 96 State Bank of Travancore v. Goodfield Plantations, AIR 1980 SC 650 [LNIND 1979 SC 440] [LNIND 1979 SC 440] [LNIND 1979 SC 440]: (1980) 1 SCC 389: (1980) 50 Comp Cas 581. 97 Some other examples are: S. Section 120 of the States Reorganisation Act, 1965 authorised the appropriate government to make changes in the existing law to facilitate its application to any newly formed State. The power was to last for one year only. Also, S. 23-A of the Business Profits Act, 1947 and S. 6 of the Taxation Laws Act, 1949. 1 Bengal lron Corp. v. Commercial Tax Officer, AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401]: 1994 Supp (1) SCC 310. 2 A much more drastic removal of difficulties clause was enacted in the Forty-second Amendment of the Constitution which authorised the President to "make such provisions including any adaptation or modification of any provision of the Constitution, as appear to him to be necessary or expedient for the purpose of removing the difficulty'. Under this clause the modification in the Constitution is not limited to a period of time. No such order, however, can be made after the expiry of two years.

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3 AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]: 1967 (1) SCR 15: 1966 (2) LLJ 546 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]; JAIN, Cases, Chapter III, 118. Following Jalan, the Madras High Court in A.N. Parasuraman v. State, AIR 1972 Mad 123 [LNIND 1971 MAD 221] [LNIND 1971 MAD 221] [LNIND 1971 MAD 221], declared a removal of difficulty clause invalid which authorised the Government by order, to do anything "which appears to it to be necessary for the purpose of removing the difficulty". According to the Court, the section conferred a sweeping power on the State Government, the limits of which the Court was unable to comprehend. 4 M.U. Sinai v. Union of India, AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], 809: (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353]. In this case, the Court has explained the reasons for having 'removal of difficulty' clauses in modern statutes. 5 Straw Products v. I.T. Officer, AIR 1968 SC 579 [LNIND 1967 SC 303] [LNIND 1967 SC 303] [LNIND 1967 SC 303]: (1968) 68 ITR 227. 6 M.U. Sinai v. Union of India, AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], 809: (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353]. 7 AIR 1971 SC 2577 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431]: (1971) 2 SCC 678: 1971 (2) LLJ 513 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431]. 8 Report at 36, 59-61 (1932). Also see, N.A.K. SARMA, HENRY VIII Clause in India, 15 J.I.L.I., 460 (1973). 9 AIR 1988 Pat 9; JAIN, Cases, Chapter III, 121. 10 JAIN, Indian Constitutional Law, 38-47. 11 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. Also, S.B. Dayal v. State of U.P., AIR 1972 SC 1168 [LNIND 1971 SC 542] [LNIND 1971 SC 542] [LNIND 1971 SC 542]: 1972 (2) SCR 141, where the Court said that the power to tax must be "a flexible power" because it can be used as an instrument of planning and to achieve socio-economic goals. 12 AIR 1963 SC 98 [LNIND 1962 SC 93] [LNIND 1962 SC 93] [LNIND 1962 SC 93]: 1962 Supp (3) SCR 481. 13 Hira Lal Ratan Lal v. S.T.O., Kanpur, AIR 1973 SC 1034 [LNIND 1972 SC 476] [LNIND 1972 SC 476] [LNIND 1972 SC 476]: (1973) 1 SCC 216. 14 Babu Ram v. State of Punjab, AIR 1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272]: (1979) 3 SCC 616. 15 AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: 1967 (3) SCR 557. Also, JAIN, Cases, Chapter III, 95. 16 AIR 1972 SC 1168 [LNIND 1971 SC 542] [LNIND 1971 SC 542] [LNIND 1971 SC 542]: (1972) 4 SCC 485: (1972) 29 STC 206 (SC); JAIN, Cases, 148. 17 AIR 1973 SC 1374 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121]: 1973 (2) LLJ 120: (1973) 2 SCC 1 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121]. 18 N.K. Papiah v. Excise Commissioner, AIR 1975 SC 1007 [LNIND 1975 SC 607] [LNIND 1975 SC 607] [LNIND 1975 SC 607]: (1975) 1 SCC 492. 19 Supra, this chapter. 20 AIR 1967 SC 1480 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND 1967 SC 39]: (1967) 20 STC 215; JAIN, Cases, 99. 21 On 'abdication' see, supra, This chapter. 22 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 23 Also see, International Cotton Corp. v. C.T.O., AIR 1975 SC 1604 [LNIND 1974 SC 303] [LNIND 1974 SC 303] [LNIND 1974 SC 303]: (1975) 3 SCC 585, where S. 8(2)(a) of the same Act was held valid against a similar challenge. 24 State of Kerala v. Madras Rubber Factory Ltd., (1998) 1 SCC 616 [LNIND 1997 SC 1559] [LNIND 1997 SC 1559] [LNIND 1997 SC 1559], para 20: AIR 1998 SC 723 [LNIND 1997 SC 1559] [LNIND 1997 SC 1559] [LNIND 1997 SC 1559], relying on Mohan Breweries & Distillers Ltd. v. CTO, (1997) 7 SCC 542 [LNIND 1997 SC 1189] [LNIND 1997 SC 1189] [LNIND 1997 SC 1189]: AIR 1997 SC 3497 [LNIND 1997 SC 1189] [LNIND 1997 SC 1189] [LNIND 1997 SC 1189]. 25 B. Krishna Bhat v. State of Karnataka, (2001) 4 SCC 227 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862], para 5: AIR 2001 SC 1885 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862]. 26 Rathi Menon v. U.O.I., (2001) 3 SCC 714 [LNIND 2001 SC 664] [LNIND 2001 SC 664] [LNIND 2001 SC 664], para 23: AIR

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2001 SC 1333 [LNIND 2001 SC 664] [LNIND 2001 SC 664] [LNIND 2001 SC 664]. 27 Bangalore W.C. Mills v. Bangalore Corporation, AIR 1962 SC 1263 [LNIND 1961 SC 44] [LNIND 1961 SC 44] [LNIND 1961 SC 44]: 1961 (3) SCR 698. 28 Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: 1968 (3) SCR 251. Here the Corporation was given authority to fix the maximum rate of tax by its resolution subject to government approval. Also, JAIN, Cases, Chapter III, 132. 29 Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. 30 Municipal Board, Hapur v. Raghuvendra Kripal, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]: 1966 (1) SCR 950. 31 Municipal Corporation of Delhi v. Birla Cotton Spinning and Weaving Mills Ltd., AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: (1968) 3 SCR 251. Also see, infra, Chapter VI. 32 AIR 1965 SC 1107 [LNIND 1964 SC 354] [LNIND 1964 SC 354] [LNIND 1964 SC 354]: 1965 (2) SCR 477. Also, JAIN, Cases, Chapter III, 124. 33 G.B. Modi v. Ahmedabad Municipality, AIR 1971 SC 2100 [LNIND 1971 SC 169] [LNIND 1971 SC 169] [LNIND 1971 SC 169]: (1971) 1 SCC 823. 34 Western India Theatres Ltd. v. Municipal Corporation, AIR 1965 SC 586; Also, N.J. Nayudu & Co. v. Administrator, City of Nagpur, AIR 1970 Bom. 59 [LNIND 1968 BOM 69] [LNIND 1968 BOM 69] [LNIND 1968 BOM 69]. 35 AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: (1979) 1 SCC 137. Also, JAIN, Cases, Chapter III. 36 Devi Das v. State of Punjab, AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: (1967) 3 SCR 557. 37 See FOSTER, The Delegation of Legislative Power to Administrative Officers, 7 111. L.R., 397, 398 (1913). 38 AIR 1970 SC 1589 [LNIND 1969 SC 292] [LNIND 1969 SC 292] [LNIND 1969 SC 292]: (1970) 2 SCC 644; JAIN, Cases, 145. 39 (1998) 9 SCC 58, 59 (Para 7). 40 The Supreme Court has explained the difference between 'conditional legislation' and 'delegated legislation' in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: (1960) 2 SCR 671; also, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735, JAIN cases, Chapter III, 108. 41 5 IA 178 (1878). See, JAIN Cases, Chapter III, 151. 42 72 IA 57 (1945). 43 Basant Kumar Sarkar v. Eagle Rolling Mills, AIR 1964 SC 1260 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND 1964 SC 52]: 1964 (2) LLJ 105: 1964 (6) SCR 913 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND 1964 SC 52]. 44 AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]: 1957 SCR 605. 45 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271: 1982 Crlj 340; JAIN, Cases, 718. Also, infra, Chapter V, under Judicial Control of Delegated Legislation. 46 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735; supra, note 130; JAIN, Cases, Chapter III, 108. 47 Jatindra Nath v. Province of Bihar, AIR 1949 FC 175. See, JAIN, Cases, Chapter III, 153. 48 K.S.E. Board v. Indian Aluminium, AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]: (1976) 1 SCC 466. 49 Supra, this chapter. AIR 1962 SC 1052 [LNIND 1962 SC 74] [LNIND 1962 SC 74] [LNIND 1962 SC 74]: 1962 (2) Crlj 215. 50 Tulsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]: (1980) 2 SCC 295; see, next Chapter. 51 AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], 722: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. XII A.S.I.L. 475 (1976); JAIN cases, Chapter III, 102.

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52 See, Saraswat Co-op. Bank Ltd. v. P.G. Koranne, AIR 1983 Bom. 317. 53 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 655 (para 26). 54 State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], paras 20, 21, 22: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]. 55 Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44 [LNIND 2002 SC 346] [LNIND 2002 SC 346] [LNIND 2002 SC 346], 49-50 (paras 7 and 8): (2002) 3 SCR 600 [LNIND 2002 SC 346] [LNIND 2002 SC 346] [LNIND 2002 SC 346], followed in Common Cause v. Union of India, (2003) 8 SCC 250 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862], 262 (para 27): AIR 2003 SC 4493 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862]. 56 (2003) 8 SCC 250 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862], 262 (para 28): AIR 2003 SC 4493 [LNIND 2003 SC 862] [LNIND 2003 SC 862] [LNIND 2003 SC 862]. 57 (1955) 2 SCR 1196 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]. 58 (1960) 2 SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230], as cited in I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 653 (para 22). 59 276 US 394: 72 L Ed 624 (1927). 60 (1878) 3 AC 889. 61 (1882) 7 AC 829, 835: 51 LJPC 77: 46 LT 889. 62 (1944) LR 72 IA 57: AIR 1945 PC 48 [LNIND 1944 PC 32] [LNIND 1944 PC 32] [LNIND 1944 PC 32]. 63 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]. 64 72 Pa 491. 65 143 US 649: 36 L Ed 294 (1892). 66 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], 619: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], as cited in M.P. High Court Bar Association v. U.O.I, (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789 (paras 47 and 48). 67 (1878) 3 AC 889: 5 IA 178 (PC). 68 1957 SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], 619: AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]. 69 (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], 336 (para 14): 1998 SCC (L&S) 260: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]as cited in M.P. High Court Bar Association v. U.O.I., (2004) 11 SCC 766 [LNIND 2004 SC 951] [LNIND 2004 SC 951] [LNIND 2004 SC 951], 789 (para 49). 70 State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486], para 14: AIR 1998 SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]. 71 Justice BRENNAN emphasizes this point in U.S. v. Robel, 389 U.S. 258, 276 (1967) as follows: "Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people." 72 Committee on Minister's Power Report; see supra this chapter AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792. 73 See the observations of Justice REHNQUIST in Industrial Department v. American Petroleum Institution, 448 U.S. 607 (1980). Also see, this chapter; AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654]: 1989 Supp (1) SCC 430; JAIN, Cases, Chapter III. 74 Infra, Chapter V. 75 See, supra 68, under "skeleton legislation". 76 See, supra, this chapter AIR 1957 SC 478 [LNIND 1957 SC 22] [LNIND 1957 SC 22] [LNIND 1957 SC 22]: 1957 SCR 701, for comments on how the doctrine is applied at present.

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77 Gwalior Rayon Co. v. Asstt. Commr. of Sales Tax, AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98. 78 Registrar Co-operative Societies v. K. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 79 Avinder Singh v. State of Punjab, AIR 1979 SC 321 [LNIND 1978 SC 257] [LNIND 1978 SC 257] [LNIND 1978 SC 257]: (1979) 1 SCC 137. Also JAIN, Cases Chapter III. 80 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 332 (para 12): AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], relying on Registrar of Co-operative Societies v. K. Kunjabmu, (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]and State of Nagaland v. Ratan Singh, AIR 1967 SC 212 [LNIND 1966 SC 77] [LNIND 1966 SC 77] [LNIND 1966 SC 77]: 1967 Crlj 265. 81 Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 34-35 (paras 56 and 57): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 82 (1984) 4 SCC 27 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173], 39-40 (para 14): AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]. 83 Union of India v. Azadi bacho Andolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 35 (para 57): AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 84 Haniraj L. Chulani (Dr.) v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342 [LNIND 1996 SC 743] [LNIND 1996 SC 743] [LNIND 1996 SC 743], 355-359 (paras 16 to 19): AIR 1996 SC 1708 [LNIND 1996 SC 743] [LNIND 1996 SC 743] [LNIND 1996 SC 743]. 85 Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 741 [LNIND 1996 SC 741] [LNIND 1996 SC 741] [LNIND 1996 SC 741], 747 (para 15). 86 See, Makhan Singh v. State of Punjab, AIR 1964 SC 381 [LNIND 1952 SC 126] [LNIND 1952 SC 126] [LNIND 1952 SC 126]: (1964) 4 SCR 797: 1964 (1) Crlj 269. For emergency provisions of the Constitution, see, JAIN, Indian Constitutional Law, 358. 87 See, Chapter VI, infra. 88 A doubt has been raised against the constitutional validity of this procedure: see, supra, Chapter II . 89 SCHWARTZ, Recent Developments in American Adm. Law, (1980) LVIII Can. B.R., 319, 325; SCHWARTZ, Am. Adm. Law--A Synoptic Survey, 14 Israel L.R., 413, 415-16. Also see, supra, Chapter II . 90 Supra, Chapter II. 91 Infra, Chapter VI. 92 Infra, Chapter V. 93 Supra, this chapter AIR 1974 SC 1660 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: (1974) 4 SCC 98: AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: 1954 Crlj 1322. 94 Industrial Department v. American Petroleum Institution, 448 US 607 (1980). 95 SCHWARTZ, Casebook, 115-116 (1988). 96 (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88], para 29: AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88], relying on Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Asstt. Commissioner of Sales Tax, (1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418] and In re Delhi Laws Act, 1912, AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40]: 1951 SCR 747. 97 Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212, 226-27 (para 18): AIR 2001 SCC 1493, following Ajoy Kumar Banerjee v. U.O.I., (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]. 1 Arun Tewari v. Zila Mansavi Shikshak Sangh, (1998) 2 SCC 332 [LNIND 1997 SC 1526] [LNIND 1997 SC 1526] [LNIND 1997 SC 1526], 337 (paras 14-16): AIR 1998 SC 331 [LNIND 1997 SC 1526] [LNIND 1997 SC 1526] [LNIND 1997 SC 1526]. See also Workmen v. Meenakshi Mills Ltd., (1992) 4 SCC 336, 372. 2 (2004) 1 SCC 256, 269 (paras 23 and 25): AIR 2004 SC 218, relying on WADE & FORSYTH: Administrative Law, 8th Edn., 2000, at page 322.

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3 Mahe Beach Trading Co. v. Union Territory of Pondicherry, (1996) 3 SCC 741 [LNIND 1996 SC 741] [LNIND 1996 SC 741] [LNIND 1996 SC 741], 764 (para 13), relying on Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, (1960) 2 SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]: 1960 Crlj 735; Devi Das Gopal Krishnan v. State of Punjab, (1967) 3 SCR 557 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967 SC 127]: (1967) 20 STC 430; Municipal Corpn. of Delhi v. Birla Cotton Spg. And Wvg. Mills, (1968) 3 SCR 251 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]and Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST, (1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]: 1974 SCC (Tax) 226: (1974) 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]. 4 Krishna Mohan (P.) Ltd. v. Municipal Corporation of Delhi, (2003) 7 SCC 151 [LNIND 2003 SC 588] [LNIND 2003 SC 588] [LNIND 2003 SC 588], 171 (para 51(1); AIR 2003 SC 2935 [LNIND 2003 SC 588] [LNIND 2003 SC 588] [LNIND 2003 SC 588].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER V JUDICIAL CONTROL OVER DELEGATED LEGISLATION

CHAPTER V JUDICIAL CONTROL OVER DELEGATED LEGISLATION 1. NEED FOR CONTROLS It has been stated in the previous chapter that to-day the institution of delegated legislation has come to stay as a part of the modern administrative process. The question no longer arises whether delegated legislation is desirable or necessary or not, but what controls and safeguards can and ought to be introduced so that the rule-making power conferred on the Administration is not misused or misapplied.1 Delegated legislation essentially is bureaucratic legislation. It involves transfer of legislative power from the legislature to the Administration. Here are absent the normal democratic safeguards which usually operate in case of legislation by a representative legislature. It is therefore very necessary to have an effective control mechanism so that the benefits and advantages of the institution of delegated legislation may be utilised but its disadvantages minimised. Many types of controls operate in this area, e.g., judicial control, legislative control, procedural controls like publication and consultation with affected interests. In the entirety of control-mechanism, the first place is occupied by judicial control. This is the theme of this Chapter. The courts review delegated legislation on a number of grounds. 2. JUDICIAL CONTROL In Indian Express Newspapers (Bom) (P) Ltd. v. Union of India ,2 the grounds on which subordinate legislation can be questioned were outlined by the Supreme Court. E.S. Venkataramiah, J. observed thus: "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made.. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say 'Parliament never intended authority to make such rules. They are unreasonable and ultra vires."

In State of M.P. v. Bhola ,3 the Supreme Court observed as under: A delegated legislation can be declared invalid by the Court mainly on two grounds: firstly, that it violates any provision

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of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act.

Any rule, regulation or executive instruction which has the effect of taking away the services rendered by a deputationist in an equivalent cadre in the parent department while counting his seniority in the deputed post would be violative of Article 14 and 16 of the Constitution. Hence, they would be liable to be struck down.4 The Supreme Court5 observed: "True, the breach of policy decision by itself is not a ground to invalidate delegated legislation. But, in a case like this, the inevitable fallout of the breach of policy decision which the Government itself treated as a charter for the resultant legislation is to leave an imprint of arbitrariness on the legislation. When the selection or classification of certain drugs is involved for the purpose of price control, such selection or classification should be on a rational basis and cannot be strikingly arbitrary. No doubt, in such matters, wide latitude is conceded to the legislature or its delegate. Broadly, the subordinate law-making authority is guided by the policy and objectives of the primary legislation disclosed by the preamble and other provisions. The delegated legislation need not be modelled on a set pattern or prefixed guidelines. However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of the enabling legislation and even lays down specific criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom. Though exactitude and meticulous conformance is not what is required, it is not open to the Government to go haywire and flout or debilitate the set norms either by giving distorted meaning to them or by disregarding the very facts and factors which it professed to take into account in the interest of transparency and objectivity. Otherwise, the legislative act of the delegate in choosing some drugs for price control while leaving others will attract the wrath of Article 14."

The Government exercising its delegated legislative power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article 14.6 There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds : (a) (b) (c) (d) (e) (f)

Lack of legislative competence to make the subordinate legislation. Violation of fundamental rights guaranteed under the Constitution of India. Violation of any provision of the Constitution of India. Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. Repugnancy to the laws of the land, that is, any enactment. Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules).7

The test of arbitrary action is applicable to executive action. It does not necessarily apply to delegated legislation to strike down which it has to be established that there is manifest arbitrariness.8 The Court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the Court should proceed with caution before declaring invalidity.9

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(a) Constitutionality of the Parent Act A question may arise whether the statute under which legislative powers have been delegated is itself constitutional or not, for if the delegating statute itself is unconstitutional, then the delegated legislation emanating thereunder will ipso facto be invalid. The parent Act may be unconstitutional on the ground of excessive delegation, or on the ground of breach of a Fundamental Right or on any other ground (e.g., distribution of powers between the Centre and the States). This aspect is best discussed under Constitutional Law and it is not necessary to go into this matter here.10 (b) Constitutionality of Delegated Legislation The courts may be asked to consider the question of constitutionality of delegated legislation itself. The parent statute may be constitutional, but the delegated legislation emanating thereunder may be in conflict with some provision of the Constitution. In that case, the delegated legislation will be invalid. Here, again, the frame of reference to assess the validity of delegated legislation is the Constitution. For example, in Dwarka Prasad Laxmi Narain v. State of U.P. , a few provisions of the U.P. Coal Control Order, 1953, made under S. 3(2) of the Essential Supplies Act, 1946,11 were declared ultra vires as infringing Art. 19(1)(g). Similarly, in Rashid Ahmad v. Municipal Board ,12 certain bye-laws made by a municipality were held bad under Art. 19(1)(g). In Narendra Kumar v. Union of India ,13 the Supreme Court specifically considered the point whether the question of unconstitutionality of delegated legislation made under a valid Act could be raised or not. The Non-Ferrous Metals Order, 1958 was made under the Essential Commodities Act, 1955. In an earlier case,14 the validity of the Act had been upheld. The question now was whether the constitutional validity of the order could be canvassed under Art. 19(1)(g). The Court held that though a law may not be unconstitutional, an order made thereunder may yet be challenged under the Constitution, because the law could not be presumed to authorise anything unconstitutional. Again, the question of unconstitutionality of the rules falls more appropriately under Constitutional Law. Art. 14 guarantees 'equal protection of the laws' and 'equality before the law'.15 In course of time, Art. 14 has emerged as the most potent constitutional provision to control rule-making. Delegated legislation has been declared invalid in a number of cases under Art. 14 on such grounds as being arbitrary, or discriminatory or on the ground of unreasonableness.16 A rule vesting unguided and uncontrolled discretion in the government to retire any government servant at any time after his completing 30 years of service (even though he had not reached the age of superanuation) was held invalid under Art. 14 since the rule provided no safeguards, gave absolute discretion and, thus, was "capable of being used arbitrarily and with an uneven hand.17 Similarly, a rule empowering an authority to terminate the service of a permanent employee by giving him a three months' notice, or salary in lieu thereof, has been held to be invalid under Art. 14 as it rendered the tenure of an employee subject to the whim or pleasure of the employer unguided by any principle or policy.18 In India Express Newspapers (Bombay) (P) Ltd. v. Union of India ,19 the Supreme Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; "unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say "Parliament never intended the authority to make such rules; they are unreasonable and ultra vires." In India arbitrariness is not a separate ground since it will come within the embargo of the Article 14. But the subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14. The rules must, undoubtedly, satisfy the test of Article 14, which is a guarantee against arbitrary action. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power.20 The Supreme Court observed that, if the main Act is within the legislative competence of the State Legislature and the rules have been framed under a validily delegated authority and are within the scope of that authority, the rules cannot be challenged on the ground of lack of legislative competence. If the Act is

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valid, so are the rules.21 One of the conditions of the auction of the timber logs was that the authorities were absolved of their liability for any deficiency in the quantity and quality of the timer and of the measurements when the intending bidder purchased the logs in the forest timber depots. Thereafter, there were provisions that the empowered officer would inspect the premises and verify the wood purchased to satisfy himself of the source of the wood found in the depot and also the purchase of logs in auction. However, a detailed procedure has been prescribed in the relevant forms in that behalf from the time of felling of the trees till the entrustment of the purchased logs to the auction purchaser. The transit permit does contain the same details with number of the truck carrying the wood. The meticulous details are required to be mentioned in the relevant forms. When the logs reach the destination, namely, the saw-mill or the saw-pit necessary entries are required to be made in various Forms. Thus the M.P. Transit (Forest Produce) Rules, 1961 whose vires was challenged, are consistent with the meticulous details and there is no gap. Hence, it was held that they could not be declared ultra vires the Constitution as offending the Articles 19(1)(g) or 14 simply because some shortfall or discrepancy was noticed by the officer in the quantity or quality of the wood. Equally, when officer takes action for the violation of the statutory provisions, an individual case is required to be considered on the fact-situation. The rules could not be declared ultra vires on account thereof.22 If a case, here involving a subordinate legislation, can be decided upon any other ground other than constitutional grounds, such as by statutory construction or the like, the Supreme Court must do so.23 (c) Doctrine ofUltra Vires Delegated legislation can be challenged before the courts on the ground of being ultra vires the parent Act. The courts can adjudge the legality and validity of delegated legislation by applying the doctrine of ultra vires. The doctrine of ultra vires has two aspects : substantive and procedural. When delegated legislation goes beyond the scope of the authority conferred by, or it is in conflict with, the parent statute it is invalid and this is known as substantive ultra vires. When the rule-making authority deviates from the procedure, if any, prescribed by the parent statute for making rules, it is known as procedural ultra vires. Both these aspects are discussed below. It may be pointed out here that the doctrine of ultra vires is the basic doctrine in Administrative Law. It is the root principle of power of the Administration and is the foundation of judicial power to control actions of the Administration.24 The basic principle is that an authority being the creature of the law it has only such powers as are granted to it by the law. The parent statute is thus both--(i) a source of authority of the concerned agency as well as (ii) of the limits on it. An action of the agency is valid, when it falls within the statutory limits, but it is invalid when it falls outside legal limits (ultra vires). We shall have occasion to revert to this theme again and again in the following pages. It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and the other invalid, the Courts must adopt that construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires.25 3. SUBSTANTIVE ULTRA VIRES Delegated legislation may also be struck down because its substance infringes the parent Act, another primary statute, or constitutional principle.26 Substantive ultra vires means that the rule-making authority has no substantive power under the empowering Act to make the rules in question. It refers to the scope, extent and range of power conferred by the parent statute to make delegated legislation. Briefly stated, the principle is that the delegate cannot make a rule which is not authorised by the parent statute. If the subordinate legislative authority keeps within the scope and bounds of the power delegated, the delegated legislation is valid; but if it falls outside the scope of the

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power, the courts will declare it invalid. Delegated legislation to be valid must fall within the four corners of the powers conferred by the statute. Declaring a rule in the Karnataka Motor Vehicle Rules, 1963, ultra vires the Motor Vehicles Act, 1939, as the rule was inconsistent with a section in the Act, the Supreme Court declared in State of Karnataka v. Ganesh Kamath 27 that the rule-making power "cannot include within its scope the power to make a rule contrary to the provisions of the Act conferring the rule-making power. .. Conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." As the Supreme Court has emphasized in Renusagar28: "If the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All the conditions of the statute must be fulfilled." Thus, delegated legislation repugnant to, or inconsistent with or in contravention of, or in excess of, or overriding the provisions of, the parent Act is ultra vires.29 Section 4(1) of the Telegraph Act, 1885 empowers exclusively the Central Govt. to establish, maintain and work telegraphs and Section 7 enables it to make rules consistent with the provisions of the Act which it did not do, but the Supreme Court observed that in that event it could not be held that, unless such rules are framed, the Govt. could not exercise its power under Section 4(1) and exercise of that statutory power by the Govt. could not be circumscribed, limited or restricted by any subordinate legislation/rules framed under Section 7.30 Thus, if power is conferred to legislate only with respect to certain topics, or for certain purposes, or in certain circumstances, the limits of the power must not be crossed. For this purpose, the phraseology of the delegating provision becomes very relevant. In applying the doctrine, the court has a three-fold task: first, to determine the meaning of the words used in the Act itself to describe the delegated legislation which the delegate is authorised to make; secondly, to determine the meaning of the subordinate legislation itself; and, finally, to decide whether the subordinate legislation complies with that description. Before taking up some illustrations to exemplify as to how the doctrine of ultra vires operates in the area of delegated legislation, it may be worthwhile to point out that, in practice, it is quite a difficult matter to have delegated legislation declared ultra vires. Not many cases actually occur in which the courts declare delegated legislation invalid on the ground of substantive ultra vires. Several reasons contribute to this situation. One main reason is that the rule-making power delegated to the executive is couched in broad and general terms. The efficacy of judicial review of delegated legislation on the ground of substantive ultra vires depends ultimately on the phraseology of the statutory provision delegating the power on the concerned Authority. If the power is couched in too broad and general terms, the efficacy of the ultra vires doctrine will be very much compromised as in such a case it may be very difficult to hold that a rule falls outside the purview of the rule-making power delegated. Broader the power delegated, less the chance for the courts to be able to control their exercise. Thus, in case of skeletal legislation,31 where the legislature lays down only the barest outlines of the statutory scheme in the parent Act, and does not specify clearly the principles, policies or standards which it wants the delegate to follow while making the rules, or gives no guidance or direction to the delegate as to how he is to exercise his power to make delegated legislation, the application of the doctrine of substantive ultra vires becomes extremely difficult. And the truth is that in modern legislation, rule making powers are usually delegated in very broad terms and so declaration of rules ultra vires becomes a rarity indeed. This underlines the need and significance of having the doctrine of excessive delegation so that too broad legislative powers are not conferred by the legislature on the Administration and the statute contains standards and policy statements subject to which the power of delegated legislation is to exercised. In such a case, the courts can control the ensuing delegated legislation by applying the principle that delegated legislation going beyond the policy of the Act is ultra vires. But the statutes rarely lay down standards or policies. For example, S. 3(1) of the Defence of India Act, 1962, authorised the Central Government to make rules "as appear to it necessary or expedient for securing the defence of India and civil defence... or for maintaining supplies and services essential to the life of the community". Prima facie this provision conferred a very liberal power on the Government to make rules as the 'necessity' or 'expediency' of a rule depended on the subjective satisfaction of the Government and there was no principle, policy, direction or guidance given to the Government as to how to exercise its rule making power. The only possible restriction on the Government may be that it acts in good faith, does not act with an ulterior motive,32 and that the rules have some nexus with the purposes specified in S. 3(1).33 The Supreme Court struck down the proviso inserted in sub-rule (1) of Rule 3 of the H.P. Ceiling on Land Holdings Rules, 1973 by notification dated 4.4.1986 and the circular order dated 21.8.1990 issued by the Registrar, District Kangra at Dharamshala and declared them invalid, they being ultra vires the powers of the H.P. Ceiling on Land Holdings Act, 1973 as they were the outcome of unguided general delegation and did not subserve any

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purpose sought to be achieved by the parent Act.34 T.N. Town and Country Planning Act, 1971 (35 of 1972), Sec. 113-A delegated wide powers to grant exemption to buildings under the Act without any guidelines but the Supreme Court held that the delegation of power was not excessive, though wide, as it could be controlled through legislative policy which could be gathered from the Preamble, Objects and Reasons and relevant provisions of the Act and the Development Control Rules.35 Keeping this aspect in view and with the objective of giving a meaningful play to the ultra vires doctrine so as to strengthen judicial control over delegated legislation, the Committee on Ministers' powers36 observed in 1932 that the "precise limits of the law-making power which Parliament intends to confer on a Minister should always be expressly defined in clear language by the statute which confers it: when discretion is conferred, its limits should be defined with equal clearness."37 This aspect brings out the great significance of the doctrine of excessive delegation,38 for if the legislature is made to delegate legislative power in controlled terms, and not in too broad and generalized language, and were to incorporate policies, standards or guidelines as well as some procedural safeguards into the delegating provision, then it may be possible for the courts to apply the ultra vires concept in a more effective manner. But the way the courts have applied the doctrine of excessive delegation so far fails to achieve this significant objective. Another reason for failure of challenges to delegated legislation on the ground of substantive ultra vires is judicial reticence to declare the same invalid. The efficacy of the doctrine of ultra vires depends also on the judicial attitude--how scrutinising an attitude do the courts adopt? The courts generally adopt a benevolent and indulgent, rather than a critical, attitude towards delegated legislation while applying the doctrine of ultra vires. The judicial attitude by and large is to lean toward the validity of delegated legislation. It is therefore a rarity to come across examples of judicial invalidation of rules on the ground of ultra vires. To uphold delegated legislation, the courts adopt several strategies. One is for the courts to eschew any challenge to delegated legislation on the basis of policy or principle underlying the same. The Supreme Court has emphasized39 that while adjudging the vires of delegated legislation, the courts are not concerned with the principle or policy underlying the same. Matter of policy are left to the government. The court's scrutiny is to be limited to the question whether the impugned regulations fall within the scope of the rule making power conferred on the delegate by the statute. The court cannot sit in judgment over the wisdom of the policy evolved by the rule-making body. The policy may be wise so as to fully effectuate the purpose of the statute, or it may lack in effectiveness, but any drawback in the policy incorporated in a rule does not render it ultra vires. In the words of the Court : "So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it... the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural, would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the courts to examine the merits or demerits of such a policy."

Thus, while adjudging the vires of delegated legislation, the courts do not concern themselves with the merits, demeris, wisdom or unwisdom of the underlying policy. A Court never quashes a rule because, in its opinion, the policy underlying it is not wise or prudent. The Court's only concern is to see whether the impugned delegated legislation falls within the scope of the rule-making power conferred on the concerned authority by the parent statute. Similarly, in England where a similar rule is followed; the court has said :40 "They [Ministers] are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge."

Further, the judicial attitude generally is to interpret the delegating provision rather broadly and this makes it easier to uphold delegated legislation as intra vires, for if the scope of the rule-making power is broad, it may be difficult to argue that the impugned rules fall outside the purview of the rule-making power. This judicial attitude can be illustrated by two examples. S. 80J of the Income Tax Act, 1961, uses the term "capital employed" on which relief may be granted to new enterprises. Rule 19A of the Income Tax Rules, 1962,

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defines the term restrictively so as to exclude from its scope long term borrowing. By a majority, the Supreme Court upheld the vires of the rule in Lohia Machines Ltd. v. Union of India .41 According to the Court, the term 'capital employed' has no fixed connotation; it is not a term of art; it is "susceptible of varied meanings including or excluding short term borrowings or long term borrowings, whether of all categories or of any particular category or categories depending on its environmental context". The Court thus conceded to the Government power to define the term in any way it thinks best as the term in question has been given a very flexible connotation. The Essential Supplies Act extended to "cotton textiles". The Cotton Textile Control Order, 1948, fixed prices for cotton yarn. The question was whether the order was ultra vires. Answering in the negative, the Court pointed out that the expression "cotton textiles" would include "yarn" as well. "Cotton Textiles" is a generic term which includes both cotton fabrics as well as yarn.42 Again, in evaluating the vires of delegated legislation, the courts start with the presumption of "constitutionality, competence and reasonableness" of delegated legislation just as the courts do in respect of primary legislation by the legislature. As a general proposition, delegated legislation is regarded as validly made, and part of the law of the land, until a court decides otherwise. In the House of Lords, in Hoffman43, Lord Diplock referred to this aspect and observed, "... the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question."44 The Kerala High Court has said recently in P.V. Mani v. Union of India follows:45 "The court shall not assume that a subordinate legislative instrument is invalid for absence of competence or bona fide or fairness or reasonableness and cast the negative burden on the rule-making authority. It should be just the other way; the person who challenges the vires of a rule has to prove his challenge just as much as a person who challenges a legislative enactment. If he fails in such attempt the challenge can only be thrown out."

Thus, the rule is presumed prima facie to be intra vires. It is not for the authority concerned to show that it exercised its power "honestly, bona fide, fairly and reasonably". It is for the person aggrieved to prove affirmatively that "the presumption in favour of constitutionlity, competence, fairness and reasonableness is unsustainable."46 The onus of establishing invalidity is on the challenger. According to the court, such a presumption is necessary otherwise no subordinate legislation will be safe from attacks on imaginary or flimsy grounds. Rules of interpretation as applied to legislative enactments are also applied to delegated legislation. The task of a person who endeavours to challenge the validity of delegated legislation is indeed a difficult one. In the light of what has been said above, it will appear that, on the whole, judicial review of delegated legislation is a weak control mechanism. In reality, it seems to be more of a symbolic value rather than of much practical value as a control mechanism over delegated legislation. It also needs to be emphasized that legislative control over delegated legislation also does not amount to much of an effective democratic control.47 Therefore, a more interventionist role on the part of the courts to the question of vires of delegated legislation may be in order. It is necessary that in assessing the validity of subsidiary legislation, the courts play a creative, rather than a mere mechanistic role. The main question is to draw a balance between administrative legislation and individual rights in the light of the prevailing circumstances and the purpose of the statute in question. But such judicial stance is not forthcoming at the present moment. A few examples are mentioned below denoting the application of the substantive ultra vires doctrine to delegated legislation. Under S. 3 read with S. 5 of the Essential Commodities Act, 1955, the State Government has power to make orders regulating manufacture, distribution etc. of essential commodities mentioned in S. 2. This Section does not mention bricks as an essential commodity. Therefore, an order made by the State Government requiring brick manufacturers to take out licences for using coal for manufacturing bricks was held to be unwarranted. Therefore, no prosecution could be launched for contravention of the order and the first information report lodged in that behalf would be quashed.48 At times, a statute may authorise the State Governments to make rules but subject to the rider that they do

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so with the concurrence or sanction of the Central Government. This is regarded as a substantive restriction on the competence of the State Governments. Therefore, amendments made to the existing rules by a State Government without the concurrence or sanction of the Central Government would be invalid.49 Even when broad rule-making power is conferred, and the impugned rules are intra vires the parent Act, they may, nevertheless, be struck down by the courts if found to be against some specific statutory provision. Ultimately it is for the court to decide whether a rule is inconsistent with a specific statutory provision or not. Rules may also be declared ultra vires if they come in conflict with some fundamental principle of general law including Administrative Law, e.g., a rule conferring excessive discretionary power on an administrative authority is invalid.50. Under S. 3(4) of the Advocates Act, 1961, the qualifications and conditions entitling an advocate to vote at an election, or for being a candidate for membership of the State Bar Council, have to be prescribed by the Bar Council of India. This cannot be done by the State Bar Council. If a rule for the purpose is made by the State Bar Council, it cannot be valid even if it is approved by the Bar Council of India for--(i) approval of an ultra vires rule cannot validate it; (ii) such a rule cannot be regarded as having been made by the Bar Council of India, for making of a rule and giving approval to a rule are two distinct concepts.51 One cannot take the place of the other. Thus, the rule was held invalid because the rule-making authority had no power to make the rule in question. The Cinematograph Act makes district magistrates as the licensing authorities. A district magistrate may grant licences to whomsoever he thinks fit "subject to the control of the government." A rule made by a State Government transferred in effect to the government itself the power to decide as to whom to grant the licence, making the function of the district magistrate more or less mechanical. Such a rule is ultra vires for, under the law, the function of granting or refusing a cinema hence has been vested in the district magistrate as the licensing authority and the government cannot usurp that function. The legislature contemplates a licensing authority as distinguished from the government. The government can exercise control over the licensing authority but cannot completely oust him.52 It is the licensing authority who has to act and not the government itself. Similarly, power to make procedural rules for tribunals would not include the power to make a rule to impose a period of limitation within which a person could take recourse to the tribunal. Limitation bars the claim and extinguishes the right and this is a "substantive" and not a "procedural" matter.53 The rule thus being of a "substantive" nature could not be made in pursuance of the power to make "procedural" rules. A provision in a State Municipal Act stated that when any local area was included within the limits of a municipality, "all rules, bye-laws, orders, directions and powers" made under the Act and in force in the concerned municipality, would apply to the local area included. The court ruled that this provision did not include "notification", and so a tax being collected in the municipal area under a "notification" could not be levied in the newly included local area.54 The court thus took an extremely technical and literal view of the provision in question. Perhaps, the judicial view emanated from the fact that a tax was being levied in the instant case and there is a well established principle that tax statutes should be strictly construed.55 The Cantonments Act confers power on the Central Government to make rules to fix the tenure of office, salaries, leave of absence and 'other conditions of service of servants' of Cantonment Boards. Under this provision, the Government made a rule providing for transfer of an employee of one Cantonment Board to another Board. The Supreme Court declared the rule to be ultra vires, the reason being that each Cantonment Board is an autonomous entity, the service under the Cantonment Board is not a centralised service, and so an employee of one Board cannot be transferred to another Board.56 The transfer of an employee from one board to another amounts to termination of his service in the first and his re-appointment in the second board. S. 5 of the Coal Mines Provident Fund and Bonus Act, 1948, authorises the Central Government to frame the bonus scheme. As a part of the scheme, the Government created a quasi-judicial tribunal to decide disputes arising under the scheme. The Supreme Court rejected the argument that the creation of the tribunal was ultra vires arguing that this was merely a matter of detail which was subsidiary or ancillary to the main purpose.57 In Federation of Customs House Agents' Association v. Union of India ,58 the validity of

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Regulation 8 of the Customs House Agents Licensing Regulations, 1984, which provided for grant of temporary licence before the applicant qualified for the said purpose at the prescribed examination. The Regulations were framed under Section 146 of the Customs Act, 1962 of which sub-section (1) barred the business as a Customs House Agent without a licence; but none of the clauses of sub-section (2) of Section 146 prescribed any restriction on grant of temporary licence. Besides, the Committee for Subordinate Legislation in its report had also recommended that temporary licence should be issued initially for a period of two years and the performance of the temporary licensee be watched. The Supreme Court held that in this background it could not be said that the said Regulation 8 was invalid, arbitrary or unconstitutional in any manner. Moreso when the said Regulation 8 had proper check and balance in which the experience of work relating to clearance of goods through the customs as well as the performance at the qualifying written or oral examination both had been taken note of.59 Rules framed in 1983 by the State of Bihar under the provisions of Sections 41, 42 and 76 of the Forest Act, 1927 for the establishment of saw-pits and establishment and regulation of depots were held to be not ultra vires the rule making power conferred by the Act. Hence, the Supreme Court held that the notice issued by the Chief Conservator of Forests under the rules requiring the owners of saw-pits and depots to obtain licenses and providing that those found unlicensed would be liable to penalty under the Rules was valid.60 Orders passed by an officer during the period, the appointment of the said officer was declared to be illegal, would not be invalid or ultra vires as the said officer was not an usurper of the post.61 Section 3-A(2) of the National Highways Act, 1965 required giving of a brief description of the land sought to be acquired in the notification issued under Section 3-A(1). Hence, where a notification specified a plot number, the part whereof was intended to be acquired but did not specify that part, the said requirement was not satisfied and the notification was vitiated.62 Many a time the term 'regulation' is used in statutory provisions delegating legislative power to the executive. For example, it may be said: "The Authority may regulate by making rules...". Here the scope of the rule-making authority depends on the interpretation of the word "regulation". Broader the meaning given to "regulation", the broader is the scope of the rule-making power. Question often arises whether the word 'regulation' can be taken to mean 'prohibition'. In some cases, the courts have interpreted 'regulation' restrictively as excluding prohibition'63 while in other cases,64 the courts have interpreted it broadly as including prohibition. The proposition that the word 'regulation' has flexible meaning has been reiterated by the Supreme Court in K. Ramanathan v. State of Tamil Nadu .65 S. 3(2)(d) of the Essential Commodities Act, 1955 empowers the Central Government to issue an order for "regulating by licenses, permits'etc. of storage, transport, use and consumption of any essential commodity. The Supreme Court has ruled that the word 'regulating' in 5. 3(2)(d) takes in 'prohibition'. Thus, an order banning movement or transport of paddy out of some districts of Tamil Nadu was held valid. The Court has emphasized that the word 'regulation' does not have that rigid or inflexible meaning as to exclude 'prohibition'. "The word 'regulate' is difficult to define as having any precise meaning. It is a word of wide import, having a broad meaning, and is very comprehensive in scope. There is a diversity of opinion as to its meaning and its application to a particular state of facts." A broad view of the word 'regulation' was taken by the Supreme Court in Minerva Talkies66. where a rule fixing the number of cinema shows at four per day was held valid as a matter of regulation of exhibition of cinematograph films under the Karnataka Cinemas (Regulation) Act, 1964. The liberal judicial attitude towards delegated legislation is tellingly typified by the Supreme Court pronouncement in State of Tamil Nadu v. M/s Hind Stone .67 S. 15 of the Mines and Mineral (Regulation and Development) Act, 1957, empowers the State Governments to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals. The Tamil Nadu Government promulgated a rule banning leases for quarrying black granite in favour of private persons and laying down that in future leases could only be granted to a wholly government-owned corporation. Thus, by using its rule-making power, the government abolished private enterprise in, and nationalised, quarrying of black granite. The High Court struck down the rule on the ground that S. 15 gave power only "to regulate", and not "to prohibit", the grant of mining leases. On appeal, the Supreme Court upheld the validity of the inpugned rule on the ground that it was made for conserving, and prudent exploitation of, minerals with a view to secure maximum benefit to the community. The word "regulating" in S. 15 was interpreted broadly, so as to include "prohibiting" as well. The Court pointed out that "regulation" does not have such a rigidity of meaning as never to take in "prohibition". The word 'regulation' has no fixed connotation. Its meaning differs according to the thing to whom it is applied. "Much depends on the context in which the expression is used in the statute and the object sought to be achieved by the contemplated regulation". Said the Court:

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"In modern statutes concerned as they are with economic and social activities, 'regulation' must, of necessity, receive so wide an interpretation that in certain situations, it must exclude competition to the public sector from the private sector. More so in a welfare state."

The Court also rejected the argument that the impugned rule changed the policy of the Act which could be done by the legislature alone. The Court argued that the rule referred only to one mineral, viz., black granite, and not to all minerals, and this did not represent any change of policy. If, however, a complete and general ban is imposed on private mining of all minor minerals, then it may invoke a reversal of a major policy which may need legislative sanction. The Court also held that the rule was not invalid because it created a monopoly in favour of the State. A commonly used technique of delegating legislative power is first to give a general rule-making power for carrying out the purposes of the Act and, then, to lay down, without prejudice to the generality of the previous clause, several specific heads for which the delegate is authorised to make rules. The courts have taken the view that when such a formula is used, the real source of power is the general provision; the specific heads enumerated do not confer any fresh power; the purpose of the specific heads is only illustrative and not exhaustive, and the range, scope and ambit of the general rule-making power conferred by the previous clause is not restricted or cut down in any way by the illustrative specific heads mentioned. A rule justifiable under the general rule-making power is valid even if it is not relatable to any of the enumerated specific heads. For example, S. 2(1) of the Defence of India Act, 1939, gave power to the Central Government to make such rules "as appear to it to be necessary or expedient for securing the defence of British India, the public safety ... etc." Then, "without prejudice to the generality of the powers" conferred by S. 2(1),S. 2(2)(x) gave a limited power to the Government to apprehend and detain persons in preventive detention. The Government made a rule which went beyond the scope of S. 2(2)(x). The Federal Court of India held the rule invalid as it took the view that the legislature having set out in plain and unambiguous language in S. 2(2)(x) the scope of the rules which could be made providing for preventive detention, "it is not permissible to pray in aid the more general words in S 2(1) in order to justify a rule which so plainly goes beyond" the limits of S. (2)(x).68 On appeal in another case, the Privy Council, however, reversed this ruling and held the rule in question to be valid under the general power contained in S. 2(1). The Privy Council characterised the function of S. 2(2) as merely 'illustrative'; the rule-making power having been conferred by S. 2(1), the provisions of S. 2(2) were not restrictive of S. 2(1).69 But is the reverse position also true? Can a specified illustrative head extend the scope of the general power? This interesting question arose before the Supreme Court in Regina.70 A statute conferred a general rule-making power on the Government "to carry out all or any of the purposes of the Act." Then, certain heads were specified for which rules could be made. One of these heads was: conditions for recognition of elementary schools. There was, however, no provision in the Act itself relating to recognition of schools. The Court held that the rules made under the specific head related to no purpose of the Act and so the rules could not be valid as they would not satisfy the condition precedent for such rule-making, namely, that they can be made only "to carry out all or any of the purposes of this Act." The implication of this ruling is that the specific heads cannot broaden the scope of general power in so far as the rules made under specific illustrative heads must satisfy the over-all condition contained in the general power, namely, to carry out the purposes of the parent Act. At times, the authority concerned may wrongly state that it has made a rule under a particular provision of a statute, while, in fact, it has done so under another provision. This does not affect the validity of the rules. When power exists and a rule made is within the competence of the rule-making authority, it cannot be held invalid merely because it purports to be made under a wrong provision, if it can be shown that the rule could be made under any other provision. The crucial question is whether the concerned authority has the power to make the rule in question.71 A mere wrong label cannot invalidate the action of an authority which otherwise falls within its statutory power.72. Similarly, rules do not become invalid if the rule-making authority omits to mention the source of its rule-making power, provided it has the power to make them. The court can relate the rules to the enabling provision in the parent Act.73 Rule 9-A of the J&K CS (Judicial Recruitment) Rules, 1967, providing for the relaxation of upper age limit for the candidates, was later on deleted. Subsequently, the State Govt. by its order relaxed the upper age limit by a certain period in favour of a candidate. The Supreme Court held that such an order, in the absence of an enabling provision in the rules, could not be

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sustained.74 The Schedule II to the T.N. General Sales Tax Act 1 of 1959 specifies in respect of iron and steel the single point of levy as "the point of first sale in the State" whereas the impugned circular shifted the point of levy from the first sale to a subsequent sale, which was held be bad in law.75 Rule 9 (as amended) of the H.P. Passengers and Goods Taxation Rules, 1957 was held to be impliedly ultra vires Section 3 of the H.P. Passengers and Goods Taxation Act 15 of 1955.76 The Bar Council of India Training Rules, 1995 prescribed additional qualification of pre-enrolment training and examination for being qualified to be enrolled as an advocate on the State Roll. They also provided that a trainee advocate would have a limited right to ask for adjournment and mention cases of his guide. The Supreme Court held that these provisions were ultra vires the rule-making power of the Bar Council of India available under the Advocates Act, 1961.77 Reference has already been made to removal of difficulties clauses.78 Questions may arise whether an order made thereunder is intra vires or ultra vires. For example, the Supreme Court ruled in State Bank of Travancore v. Goodfield Plantations ,79 with reference to S. 45(10) of the Banking Regulation Act, 1949, that there was real difficulty in implementing the scheme, and the Central Government was fully competent to pass an order removing that difficulty, and the order in question was not inconsistent with the provisions of the scheme in any manner. In the end result, the Court held that the order was not ultra vires S. 45(10).80 Similarly, in R.B.I v. Peerless Gen. Fin. & Invest. Co. Ltd. ,81 the Supreme Court held that the para 4-A inserted by a Notification in directions issued by RBI under the enabling provision of Section 45-K(3) of Reserve Bank of India Act, 1934 was intra vires as the enabling power covers, ancillary or incidental power also. Even if an Act does not specifically provide for the levy in question by name but provided statutory authority for its imposition by delegated legislation which was actually done, it was held that such an imposition of levy would be valid and not ultra vires. The same was the position in the instant case.82 Merely misstatement of the appropriate/enabling section will not invalidate the reopening of the assessment because the power to do so was already there under the Act.83 Mere wrong reference to the enabling provision would not invalidate the bye-law as long as the provision therefore exists.84 In Hyderabad Karnataka Education Society v. Registrar of Societies ,85 it was contended that Rule 7 of the rules framed by the Society ran counter to the provisions of Section 2(b) of the Karnataka Societies Registration Act (17 of 1960) as it provided for automatic loss of ordinary membership of the Society in case of default in payment of annual subscription within the stipulated time but the Apex Court found that the contention was wrong as it was in pari materia and did not offend the said section in any manner. Rules ought not to be repugnant to the parent Act. Rules can only be effective to the extent that they are consistent with the parent Act. A rule is ultra vires if it is inconsistent with the policy of the parent Act. An example of the application of this principle is furnished by Baban Naik v. Union of India .86 The Maharashtra Co-operative Societies Act, 1961, authorises (S. 78) the Registrar to remove the committee of a Co-operative society after giving it an opportunity to state its objections. Under another provision of the Act, the Government could by a notification in the Gazette exempt any society from any provision of the Act. The Government issued a notification exempting the society in question from the purview of S. 78 thus withdrawing the requirement of hearing. This notification was held invalid on the ground that it affected the substance of the provisions of the parent Act insofar as the notification withdrew the safeguards given to a society in the matter of suppression of its committee. The court emphasized that the power of exemption given to the government could not be so exercised as to affect the substance of the provisions of the parent Act in question.87 This principle can also be exemplified by another situation. It has been pointed out earlier that a statute may confer power on the executive for its own modification.88 The courts insist that such a power cannot be exercised so as to change the basic policy of the parent Act. In Rajnarain,89 where such a provision was involved, the executive picked up a section of the parent Act pertaining to the levy of taxes and extended it to a new area. The policy of the parent Act was to give to the concerned people an opportunity of filing objections and of being heard before any tax was imposed on them. In the instant case, this safeguard was dropped. The tax was imposed without giving the people concerned a hearing. The Court held that this involved a change of policy and, therefore, the extension of the section was ultra vires. A similar situation arose in Lachmi Narain.90 The delegating provision in question gave power to the government to modify the schedule appended to the Act by giving a three months' notice. The schedule listed non-taxable items under

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the Act. Under the Union Territories (Laws) Act, this provision was modified by dropping the requirement of three months' notice. The Supreme Court declared this modification ultra vires for it made a change in the policy of the Act. The three months' notice to effect any change in the schedule was a matter of "legislative policy" which only the legislature could change and not the delegate. It is for the courts to decide what is the "essential legislative policy" of a statute and whether or not it is sought to be changed by the impugned delegated legislation.91 If the power to make rules conferred on the concerned authority is exercisable having regard to some factors specified in the parent Act, then the making of the rules without taking into account these factors will vitiate the rules.92 A delegated legislation, though, legislative in character, will be invalid, on the ground of violation of principles of natural justice, if the enabling Act, under which the delegated legislation is made, specially requires observance of the principles of natural justice for doing the act.93 When the parent statute expressly states the specific purposes for which the rules are to be made, then the task of the court in assessing the validity of the rules is comparatively easy: the court determines the validity of the rule by relating it to what it does to that purpose. The court has to assess whether the rules can be related to the stated purposes. The rules can be valid only if they have a nexus with the stated purposes because the power is limited to making rules only for the specified purposes. If the rules purporting to be made under this power could be shown to have been made otherwise than for the specified purposes, then the rules could be held to be ultra vires.94 There also operates in this area the doctrine of 'implied powers' which means that the rule-making power would extend to whatever may be regarded as incidental to, or consequential upon, the stated purposes. This gives an added dimension to the rule-making power, but, as the Bombay High Court has clarified the doctrine of implied powers does not enable the rule-making authority to operate beyond the field within which it can operate.95 A few examples will clarify the position. S. 15(2) of the Advocates Act authorises a State Bar Council to make rules to provide for the manner of election of its chairman. The Delhi High Court has ruled that the State Bar Council could make rules for the purpose of removing its chairman (for which there is no specific provision in the Act) because the power to elect would also include power to remove the chairman.1. S. 7(1)(h) of the Advocates Act authorises the Bar Council "to lay down standards" of legal education. The provision has been interpreted broadly so as to include every ingredient constituting the end or ultimate level of legal education that was expected of a candidate applying for enrolment as an advocate.2. But this does not happen often that the statute specifically states the purposes for which rule-making power is conferred. In most of the cases the purposes, policies and objects of the statute are left unstated. Usually the rule-making power is conferred without specifically mentioning the purposes as such for which it is to be used; a general formula is used, e.g., rules can be made "for carrying out the purposes of the Act." The general principle is that the rule-making power is to be exercised to advance the policy, purposes and objects of the parent Act. The legal effect of such a formula is to confer a plenary rule-making power on the delegate but subject to the over-all requirement that the rules made ought to have a nexus with the underlying purposes of the Act. The courts infer the purposes underlying the parent Act from the preamble and other provisions of the Act.3. The Supreme Court has stated in Minerva Talkies4: "The declared will of the Legislature and the policy and purpose of the Act are discernible from the title, preamble and the express provisions of the Act." The Court has explained that if the express provisions of the Act are "plain and unambiguous" it is advisable to find out the purposes of the Act from those provisions but if the provisions are ambiguous and the court faces difficulty in deducing the purposes of the Act from these provisions, then it is permissible to refer to the title and preamble of the Act to find out the legislative objects, and the purposes of the Act. A rule may be challenged as ultra vires on the ground that it has no relation with the purposes for which the rule-making power has been given under the parent Act or that it subverts the general purposes of the Act. In practice, however, it may be extremely difficult to substantiate such a challenge before a court. In Ibrahim v. Regional Transport Authority ,5 the rule-making power was conferred "for the purpose of carrying into effect the provisions of this chapter." The purpose of the chapter was "control of transport vehicles." Rules relating to "fixing or altering busstands" were held to fall within the rule-making power of the concerned authority and were regarded as being not foreign to the purposes of the chapter. In Sales Tax Officer v. Abraham ,6 the State Government having rule-making power to carry out the purposes of the Act made rules prescribing the last date for filing declaration forms by dealers in order to get the

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benefit of confessional rates on interstate sales. The Court struck down the rules as it found that the statute authorised the making of rules only for prescribing what particulars were to be mentioned in the forms, etc., and not for prescribing a time-limit for filing the forms. A rule made by the Delhi Administration stipulating that the rates of admission to cinema auditoriums would be fixed or revised only with the prior approval of the Lt. Governor of Delhi was held to be not justified by S. 16(a) of the Cinematograph Act, 1952 which authorised prescription of "the terms, conditions and restrictions" subject to which licences may be issued to cinema exhibitors. The Court ruled that the conditions to be made in the licences must be such as to facilitate the achieving and carrying out the purposes of the Act. Such purposes set down the limits on the framing of such rules so that a rule to be valid must pertain to them. The regulation or control of cinema admission tickets was not the purpose of the Cinematograph Act, and so the rule in question could not be valid. The Court emphasized that rules must be made so as to facilitate the achieving and carrying out the purposes of the Act and that a lacuna or absence of policy and purpose in the parent Act could not be cured by the rule-making authority as it has no plenary powers as such but has to act within the parameters of the power granted to it by the parent Act.7 Thus, in this case, the ultra vires doctrine became applicable because the rule-making authority sought to achieve a purpose not warranted by the statute in question. On the other hand, in a similar situation, the Andhra Pradesh High Court took a different stand. The relevant State Act was in peri matria with the Cinematograph Act. The court justified the fixation of rates of admission to cinemas by licensing authority on several grounds, viz.: (i) the word 'regulation' in the Act is a word of broad import having wide meaning comprehending all facets not only specifically enumerated in the Act but also embracing within its fold the powers incidental to the regulation envisaged in good faith with an eye on public welfare; (ii) the legislature seems to have intended that "the rules thus made would subserve not merely the enumerated but any other legitimate incidental purposes necessary to carry them out effectually.8 The Act need not spell out the details of each incidental matter for which rules could be made; and (iii) the power to fix the rates of admission was in public interest and an "incidental or ancillary purpose of the regulation to exhibit cinematographs. The A.P. High Court thus resorted to an extremely liberal approach to the purposes stated in the Act to uphold the impugned rule. According to this approach, sky is the limit; no rule can ever be ultra vires; the rule-making authority can make any rule in public interest and the purposes stated in the Act can be stretched to accommodate the rule. In Punjab Tin Supply Co. v. Central Government ,9 the Supreme Court also gave an additional dimension to the purposes stated in the Act. Said the Court: "The preamble and the provisions of a statute no doubt assist the court in finding out its object and policy but its object and policy need not always be strictly confined to its preamble and the provisions contained therein. ..."

As regards the Rent Control Act, which was the statute in question, the Court ruled that its object and policy appeared to be "slightly wider" than some of its "key provisions". In Minerva,10 the Karnataka Government made a rule (Rule 41A) under S. 19 of the Karnataka Cinemas Regulation Act, 1964, restricting cinema licensees to hold not more than four shows in a day. S. 19 of the at gave power to the Government to make rules for the "purposes of the Act". The rule in question was challenged as being ultra vires the Act but the Supreme Court rejected the contention. The Court ruled that Rule 41A was framed to carry out the purposes of the Act. The Court looked at the title of the Act, its preamble and provisions to discern the purposes of the Act and ruled that Rule 41A was referable to several provisions of the Act as the Act conferred wide powers on the government for the regulation of the exhibition of films. "The restriction to limit the number of shows to four in a day placed by Rule 41A is regulatory in nature which clearly carries out the purposes of the Act". Ajay Kumar Bannerjee v. Union of India ,11 is one of those rare cases in which a piece of delegated legislation was held void as going beyond the object for which the power was delegated. To ascertain the object for which the power was delegated, the Supreme Court referred to the preamble to the Act in question, some provisions therein and also to the memorandum on delegated legislation presented to the Parliament at the time of the passage of the Bill. It is one of those rare cases where the Court really cut down the breadth of the delegation to bring it in line with the object of the delegation of legislative power. The Court emphasized that "the purpose or object of the conferment of the power must be borne in mind." The Court pointed out that "the authority and scope for subordinate legislation can be read in either of the two ways; namely one which creates wider delegation and one which restricts that delegation." In the peculiar facts of

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this case, "the one which restricts the delegation must be preferred to the other." Thus, in the instant case, the Court consciously adopted the strategy of cutting down the range of delegation by referring to the purposes of the Act unlike numerous other cases where the reverse strategy has been adopted, viz., to extend the range of delegation by referring to the purposes of the Act. The case arose in consequence of merger and nationalisation of general insurance companies. The Central Government issued a scheme for rationalisation of the terms and conditions of service of various sections of the employees. The employees challenged the scheme as they maintained that they were prejudicially affected thereby. Prima facie, the scheme appeared to fall within the terms of the statutory provision delegating power to frame schemes on the Government. But the Court held the scheme invalid by arguing that the statutory power to frame schemes could not be exercised in a manner unrelated to merger or amalgamation of insurance companies. But the scheme in question was not connected with the process of merger and was thus unauthorised. As regards land acquisition, Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948 does not empower the Government to deduct any amount from the compensation payable to the owner for the land acquired for public purpose in the exercise of its power of eminent domain. Hence, the Govt. Circular directing the deduction of 1/3rd of the market value of the land towards interest of the Govt. being ultra vires, was held invalid.12 By virtue of Section 9 of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, a scheme came to be framed called "The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985." As per the Scheme, certain Deputy Commissioners came to be appointed under Section 6 of the Act. Under para 5(3) of the Scheme, if the Deputy Commissioner was of the opinion that the claims fell in a category different from the category mentioned by the claimant, he might decide the appropriate category after giving opportunity to the claimant. The Welfare Commissioner issued administrative orders that the Deputy Commissioner shall not alter the categorisation unless the Welfare Commissioner has approved the same. The Apex Court held that the power of the Deputy Commissioner being quasi-judicial in nature, by issuing the directions the Welfare Commissioner has clearly impinged on the power of the Deputy Commissioner which is justified neither by the Act nor the Scheme.13 The Govt. of Gujarat issued the Gujarat Paddy (Procurement) Order, 1974 with its Schedule II fixing the price of different varieties of paddy to be procured in the State of Gujarat without taking into consideration the relevant statutory requirements specified in the amended sub-section 3-B of Section 3 of the Essential Commodities Act, 1955, hence it being ultra vires the said sub-section, was struck down.14 The proviso to Rule 5 of the Assam Agricultural Income-Tax Rules, 1939 empowers the State Officers to recompute the agricultural income already computed by the central authorities under the Income-tax Act, 1961. Section 50 of the Assam Agricultural Income-tax Act, 1939 empowers the State Govt. to make such rules as are necessary for the purpose of carrying out the purposes of the Act. The object and scheme of the Act do not contemplate the State authorities being empowered to recompute the agricultural income contrary to the computation made by the Central Officers under the Central Act. It is an established principle that the power to make rules under an Act is derived from the enabling provision found in such Act. Therefore, it is fundamental that a delegate on whom such power is conferred has to act within the limits of the authority conferred by the Act and it cannot enlarge the scope of the Act. A delegate cannot override the Act either by exceeding the authority or by making provision which is inconsistent with the Act. Any rule made in exercise of such delegated power has to be in consonance with the provisions of the Act, and if the rule goes beyond what the Act contemplates, the rule becomes in excess of the power delegated under the Act, and if it does any of the above, the rule becomes ultra vires the Act. The same is the position of the said Rule 5 of the State rules.15 The penalty cannot be beyond what is permissible in Act.16 In holding a relevant rule to be ultra vires, it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment read as whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment.17 It is well-established principle in law that so long as the impugned power is traceable to the statute concerned, mere omission or error in reciting the correct provision of law does not denude the power of the authority from taking statutory action.18 The J&K State Board of Education is vested with the power to ensure proper conduct of examination and also with power to constitute committees for different purposes and delegate any of its functions in favour of any officer of the Board. If the Board in its wisdom considered it advisable to delegate the power in the matter of mass copying at any examination centre in favour of its Chairman, no exception can be taken to it on the ground of want of power. In that case, the Chairman acts as a delegate of the Board. Any action taken or order passed, here

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notification cancelling the examination on the ground of mass copying, passed by the Chairman on the strength of delegation made by the Board, cannot be faulted on the ground of lack of competence or authority.19 In the case of inconsistency between the Regulations and provision of the statute mentioned therein, the inconsistent provisions contained in the Regulations would be inoperative and not the provision of the statute.20 The fact that the Regulations may have the force of law or when made have to be laid down before the legislature concerned does not confer any more sanctity or immunity as though they are statutory provisions themselves. Consequently, when the power to make regulations is confined to certain limits and made to flow in a well-defined canal within stipulated banks, those actually made or shown and found to be not made within its confines but outside them, the Courts are bound to ignore them when the question of their enforcement arises and the mere fact that there was no specific relief sought for to strike down or declare them ultra vires, particularly when the party in sufferance is a respondent to the lis or proceedings cannot confer any further sanctity or authority and validity which it is shown and found to obviously and patently lack. It would, therefore, be a myth to state that Regulations, under consideration in the instant case and made under Section 23 of the All-India Council for Technical Education Act, 1987 have "constitutional" and legal status, even unmindful of the fact that any one or more of them are found to be not consistent with specific provisions of the Act itself. Thus, the Regulations in question, which AICTE could not have made so as to bind universities/UGC within the confines of the powers conferred upon it, cannot be enforced against or bind a university in the matter of any necessity to seek prior approval to commence a new department or course and programme in technical education in any university or any of its departments and constituent institutions.21 The Central Govt. and the State Govt. are statutory authorities. They must, thus, act within the four corners of the statute. When an order is meant to be passed by either of the Govts., the same must be passed by an authority competent therefor. An order which has been passed by an officer without any authority would be non est.22 The Central Govt. by notification delegated power to State Govts. to make orders under Section 3 of the Essential Commodities Act, 1955 in relation to foodstuffs. Exercising that power the State of T.N. promulgated T.N. Scheduled Articles (Prescription of Standards) Order, 1977 including tea within its sweep vide Entry 19 of Sch. I. The Supreme Court held that the said Order of 1977 was ultra vires to the extent it related to tea as it is not foodstuff.23 Where a certain statutory power was assigned to an authority, the Central Govt. could not confer such power upon itself by amending certain circular letters.24 Administrative decision or direction contrary to statutory regulation, being ultra vires, would be ineffective.25 By promulgation of an ordinance by the President of India which was later on approved by Parliament, prescribing procedure in respect of a matter regarding which subordinate legislation in form of Rules already existed, the said rules would cease to exist.26 In Kerala Samsthana Chethu Thozhilali Union v. State of Kerala ,27 the Apex Court held that Rule 4(2) of the Keralal Abkari Shops Disposal Rules, 2002 was ultra vires in its entirety as even that part of it, vis a vis, the toddy workers was not severable. Where the assessment was made in strict compliance of the rules whose validity had been upheld by the Apex Court, the assessment cannot be challenged on the ground of non-compliance of rules.28 While framing the rules for the purposes of the Act, the legislative policy cannot be abridged. The rules must be framed to carry out the purposes of the Act. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature, rules could not be framed in matters not contemplated under the Act. They could be made only for the purpose of carrying out the purposes of the Act and not dehors the same. The rules in terms of Section 29(1) of the Kerala Abkari Act, 1 of 1077, thus, could be framed only for the purpose of carrying out the provisions of the Act. Both the power to frame rules and the power to impose terms and conditions are, therefore, subject to the provisions of the Act. They must not be framed in contravention of the constitutional or statutory scheme.29 By reason of Section 8 of the Kerala Abkari Act, 1 of 1077, trade in arrack was prohibited as far back as in

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the year 1996. By reason of the impugned Kerala Abkari Shops Disposal Rules, 2002, the State has not laid down the terms and conditions for employment of a worker. The Act does not contain any provision therefor. An employer is entitled to employ any person, he likes. It is well settled that no person can be thrust upon an unwilling employer except in accordance with the provisions of a special statute operating in the field. Such a provision cannot be made by the State in the exercise of its power under delegated legislation unless the same is expressly conferred by the statute. The State may have unfettered power to regulate the manufacture, sale or export-import sale of intoxicants but in the absence of any statutory provision, it cannot, in the purported exercise of the said power, direct a particular class of workers to be employed in other categories of liquor shops.30 The Supreme Court, in Kerala Sansthana Chethu Thozhilali Union v. State of Kerala ,31 cited various authorities on the point that the subordinate legislation must be framed in consonance with the legislative intent. It being a consolidated picture, it is given in full and under : In Ashok Lanka v. Rishi Dixit ,32 it was held: We are not oblivious of the fact that framing of rules is not an executive act but a legislative act; but there cannot be any doubt whatsoever that such subordinate legislation must be framed strictly in consonance with the legislative intent as reflected in the rule-making power contained in Section 62 of the M.P. Excise Act, 1915.

In Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group ,33 the Supreme Court has stated the law in the following terms: "104. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned counsel appearing on behalf of the appellants that the Courts cannot exercise their power of judicial review at all. By reason of any legislation, whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith."

In Craies on Statute Law, 7th Edn., it is stated at pp. 297-98: The initial difference between subordinate legislation (of the kind dealt with in this chapter) and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority, and that Courts of law, as a general rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts, the validity of delegated legislation as a general rule can be. The Courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed; (2) in the absence of express statutory provision to the contrary, may inquire whether the rule-making power has been exercised in accordance with the provisions of the statute by which it is created, either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation: and it follows that the Court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.

In G.P. Singh's Principles of Statutory Interpretation, 10th Edn., it is stated at p. 916: Grounds of judicial review: Delegated legislation is open to the scrutiny of Courts and may be declared invalid particularly on two grounds (a) Violation of the Constitution; and (b) Violation of the enabling Act. The second ground includes within itself not only cases of violation of the substantive provisions of the enabling Act, but also cases of violation of the mandatory procedure prescribed. It may also be challenged on the ground that it cannot be said to be in conformity with the statute or Article 14 of the Constitution or that it has been exercised in bad faith. The limitations which apply to the exercise of administrative or quasi-judicial power conferred by a statute except the requirement of natural justice also apply to the exercise of power of delegated legislation. Rules made under the Constitution do not qualify as legislation in true sense and are treated as subordinate legislation and can be challenged in judicial review like delegated legislation. Compliance with the laying requirement or even approval by a resolution of Parliament does not confer any immunity to the delegated legislation but it may be a circumstance to be taken into account along with

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other factors to uphold its validity although as earlier seen a laying clause may prevent the enabling Act being declared invalid for excessive delegation.

In Clariant International Ltd. v. Securities & Exchange Board of India ,34 this Court observed: "63. When any criterion is fixed by a statute or by a policy, an attempt should be made by the authority making the delegated legislation to follow the policy formulation broadly and substantially and in conformity therewith. (See Secy., Ministry of Chemicals & Fertilizers, Govt. of India v. Cipla Ltd. 35)

In State of Rajasthan v. Basant Nathata ,36 it was pointed out: "66. The contention raised to the effect that this Court would not interfere with the policy decision is again devoid of any merit. A legislative policy must conform to the provisions of the constitutional mandates. Even otherwise a policy decision can be subjected to judicial review."

In B.K. Industries v. Union of India ,37 this Court clearly held that a delegate cannot act contrary to the basic feature of the Act stating: "The words 'so far as may be' occurring in Section 3(4) of the Cess Act cannot be stretched to that extent. Above all it is extremely doubtful whether the power of exemption conferred by Rule 8 can be carried to the extent of nullifying the very Act itself. It would be difficult to agree that by virtue of the power of exemption, the very levy created by Section 3(1) can be dispensed with. Doing so would amount to nullifying the Cess Act itself. Nothing remains thereafter to be done under the Cess Act. Even the language of Rule 8 does not warrant such extensive power. Rule 8 contemplates merely exempting of certain exciseable goods from the whole or any part of the duty leviable on such goods. The principle of the decision of this Court in Kesavananda Bharati v. State of Kerala ,38 applies here perfectly. It was held therein that the power of amendment conferred by Article 368 cannot extend to scrapping of the Constitution or to altering the basic structure of the Constitution. Applying the principle of the decision, it must be held that the power of exemption cannot be utilised for, nor can it extend to, the scrapping of the very Act itself. To repeat, the power of exemption cannot be utilised to dispense with the very levy created under Section 3 of the Cess Act or for that matter under Section 3 of the Central Excise Act."

The law that has, thus, been laid down is that if by a notification the Act itself stands affected the notification may be struck down.39 In Hotel Balaji v. State of A.P. ,40 it is stated: "The necessity and significance of the delegated legislation is well accepted and needs no elaboration at our hands. Even so, it is well to remind ourselves that rules represent subordinate legislation. They cannot travel beyond the purview of the Act. Where the Act says that rules on being made shall be deemed 'as if enacted in this Act', the position may be different. (It is not necessary to express any definite opinion on this aspect for the purpose of this case). But where the Act does not say so, the rules do not become part of the Act."

(a) Control of Rule-maker's Discretion In some statutes, the delegating formula may be cast in subjective terms. For instance, it may say that the authority may make rules "as appear to it to be necessary or expedient for giving effect to the provisions of the Act." While this formula gives a wide latitude to make rules to the concerned authority, it does not confer a completely unreviewable discretion. It is wrong to suppose that if the rule-making power is conferred in subjective terms, the rule-making authority gets a carte blanche to make any rules which it sees fit to enact and the doctrine of ultra vires is excluded. The discretion given to the delegate to make legislation is never regarded as completely unfettered. It does not permit him to make any rules whatever which he may feel inclined to make. The power is always conferred for promoting the policy and purposes of the Act and it

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cannot be used for an irrelevant purpose. It is ultimately for the court to determine the limits of the power. Referring to such subjective rule-making power, the Privy Council observed in A-G for Canada v. Mallet & Carey Ltd. 41 "Parliament has chosen to say explicitly that he (the delegate) shall do whatever things he may deem necessary and advisable. That does not allow him to do whatever he may feel inclined, for what he does must be capable of being related to one of the prescribed purposes."

Reference may be made in this connection to Cure and Deeley.42 The commissioners of customs and excise were authorised to make regulations providing for "any matters for which provision appears to them to be necessary" for giving effect to the Act. A regulation barring access to the courts was challenged.43 It was claimed on behalf of the commissioners that their regulation-making power was couched in subjective terms; that the formula "appears to them to be necessary" was the widest which Parliament could use; that the decision whether a regulation was necessary or not for giving effect to the Act was left to the judgment of the commissioners and was not open to any objective assessment and so the court could not go into the validity of the regulation made by the commissioners. The court rejected the argument and stated that the formula did not make the commissioners the sole judge of the extent of their powers as well the sole judge of the way in which they should exercise their powers. The regulation-making power is given to promote the policy and objects of the Act, and, therefore, a regulation to be valid should be one which is capable of being related to the specified or underlying purposes of the legislation. The court observed :44 A court is bound, before reaching a decision on the question whether a regulation is intra vires, to examine the nature, objects and scheme of the piece of legislation as a whole, and in the light of their examination to consider exactly what is the area over which powers are given by the section under which the competent authority is purporting to act.

The question therefore for the courts to consider is whether there is any nexus or connection between the subsidiary legislation in question and the purposes underlying the parent Act. If no such nexus can be found then the regulation is invalid. The court declared the regulation ultra vires. Cure and Deeley is a landmark case in English Administrative Law. The case shows that when power to make delegated legislation is granted to a delegate in subjective terms, the courts may, nevertheless, determine the limits of the power in question. It has however been suggested by commentators that this case is one of the few and rare decisions where a regulation has been declared to be ultra vires and the case has been characterised as an "extreme case of judicial activism".45 Reference may also be made in this connection to an Indian case.46 Under S. 3(1) of the Defence of India Act, 1962, the Government of India was given rule-making power in subjective terms.47 The Government promulgated the Gold Control Rules under this provision. These rules were challenged on the ground that they did not subserve the purposes mentioned in S. 3(1). It was argued that there must be some real and proximate connection between the rules and the specified purposes for which the rules could be made. The Gujarat High Court took the position that while considering the question whether the rules would subserve the purposes for which they were claimed to have been made, it was not to act as a court of appeal from the Government; the court could not examine whether the view taken by the Government that the rules would subserve the stated purposes was right or wrong; the court could not substitute its own opinion for that of the Government. The Government has to take into consideration a multiplicity of factors and certain amount of latitude and free-play must therefore be allowed to it while making rules. The rules in question could not be struck down unless it appeared clearly that they could not, on a reasonable view of the matter, subserve the stated purposes. The test must be whether the rules are reasonably related to the end in view, namely, the achievement of the stated purposes. It is not necessary that the connection or nexus between the means and the end must be such that the implementation of the means must directly result in the achievement of the end without any intervening steps in the chain of causation. It is immaterial how many links there are in the chain between the rules and the stated purposes for the effectuation of which the rules have been made. On the basis of the affidavits filed on behalf of the Government, the court came to the conclusion in the instant case that the rules in question were reasonably related to the purposes stated in S. 3(1). Thus, a direct nexus between the rules and the stated purposes is not necessary. What is necessary is to establish

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that there is some nexus between the two, even if the nexus is an indirect or a distant one. Only if no nexus can be found then the rules will be invalid. On this view, it can be appreciated how difficult it is to challenge any rules as going beyond the purposes stated in the parent Act defining the rule-making power, especially when the power is given in subjective terms.48 In Administrative Law, a cardinal principle is that all statutory powers must be employed in good faith and that mala fides would vitiate an administrative action. This proposition operates in the area of discretionary powers as is discussed later.49 Thus, a discretionary power ought never to be exercised mala fide. But it is a moot point whether the doctrine of male fides operates in the area of delegated legislation.50 Whether a rule can be challenged on the ground of mala fides of the rule-making authority, this question cannot be answered definitively. Some indication has been given to this effect in England in a case of the House of Lords, viz., Mc Eldowney v. Forde .51 Perhaps, mala fides in this area would mean that the rule-making authority is seeking to achieve a purpose through rules which is not warranted by the parent statute; the rule-making power given for one purpose is deliberately being used with the design of achieving some other unauthorized or forbidden purpose. This may be another way of stating the proposition that a rule not in conformity with the purposes for which the rule-making power has been conferred is ultra vires. The Privy Council has stated that if power entrusted for one purpose is deliberately used with the design of achieving another purpose, itself unauthorised or actually forbidden-if bad faith of this kind can be established, the court may intervene.52 It has also been stated that subordinate legislation may be held ultra vires the enabling Act if "the legislators have been animated by improper personal motives which affect the substance of the end-product."53 In Addl. Distt. Magistrate (Rev.) v. Siri Ram ,54 the Supreme Court held that conferment of rule-making power by an Act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. The Supreme Court found that the rule making authority, by amending the Delhi Land Revenue Rules, 1962 and its Form P-5, had exceeded the power conferred on it by the enabling Act i.e., Delhi Land Revenue Act, 1954 and quashed them, being ultra vires the enabling Act. Mala fides or bad faith is usually associated with some degree of dishonesty or moral turpitude. Therefore, a delegated law-making power is exercised in bad faith when the delegated law-maker's real object is to do harm or to confer a pecuniary benefit on a particular individual rather than to secure some generally beneficial result. In India, the Supreme Court has sent confusing signals on this point. In Suman,55 while holding a notification valid, the Court specifically mentioned that it was not mala fide. The implication of this statement could be that had it been male fide, the Court would have quashed it. In B.D. Gupta v. State of U.P. ,56 where certain service rules made by the Executive under Art. 309 of the Constitution were challenged on the ground that the rules were mala fide and arbitrary, the Supreme Court has said: "It is well-settled that no legislation can be challenged on the ground of mala fides." At least one comment can be made on this statement; in the face of the judicial dicta in England, it can hardly be said that it is 'well-settled' that mala fides of the rule-making authority does not vitiate a rule. On principle and logic, if mala fides of an authority may vitiate an administrative order, there seems to be no reason why it ought not to vitiate a legislative order made by it. There seems to be no logical reason as to why delegated legislation should stand outside this basic principle. If the rule-making authority is motivated by improper motives in passing the impugned rules, why cannot the rules be quashed on this ground? It may be argued that mala fides cannot be attributed to a legislature and that the same principle should be applied to a delegated legislator. But the analogy between a democratically elected legislature and an authority exercising delegated rule-making power is far-fetched and misleading. Earlier, in Jagdish Prasad Sinha v. Bhagwat Prasad ,57 a notification containing some service rules regarding promotion was quashed by the Supreme Court on the ground that the government was motivated by extraneous considerations in issuing the notification in question. Without characterising the action of the government as mala fide, the Court came very near saying so. Recently, the Supreme Court has more or less equated a legislative order with an administrative order for purposes of judicial control of the rule-maker's discretion. The Supreme Court has said that an exercise of power whether legislative or administrative will be set aside on such grounds as: manifest error in the exercise of power; if exercise of power is manifestly arbitrary; if power has been exercised on a non-consideration or nonapplication of mind to relevant factors, if power is exercised on the basis of non-existent or patently erroneous facts.58 These grounds are discussed later in this book.59 It has been asserted by the Supreme Court in State of Rajasthan v. Union of India 60 that a presidential proclamation under Art. 356 of the Constitution can be challenged if power is exercised mala fide. As Bhagwati, J. has

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observed, "if satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the court would have jurisdiction to examine it . . ." A proclamation under Art. .356 cannot but be regarded as legislative in nature.61 In V. Jagannadha Rao v. State of A.P. ,62 the Supreme Court held that transfer does not comprehend promotion, hence Special Rules, framed by the Governor of A.P., in exercise of powers under proviso to Article 309, which provided for appointment by transfer to higher category on the basis of seniority-cum-efficiency, was held to be violative of para 5(2) of the Presidential Order and hence was set aside. The Tamil Nadu Govt. published, a draft amendment proposing to omit sub-rules (8), (9) and (11) of Rule 20 and to amend the sub-rules (13) and (14) and militate against the laudable object underlying Rule 20 of the T.N. Motor Vehicles Accidents Claims Tribunal Rules, 1989 as originally framed which was in consonance with the guidelines approved by the Supreme Court. The Apex Court felt sure that T.N. Govt. would not finalise the proposed amendments and if already effected, it shall consider their repeal and restoration of the original R. 20.63 In, People's Union for Civil Liberties v. U.O.I. 64 the Supreme Court noticed that, though the Telegraph Act was enacted in 1885 the Central Govt. did not frame any rules under its Section 7(2)(b) for providing the precautions to be taken for preventing the improper interception or disclosure of messages, hence, it was not possible to safeguard the rights of the citizens guaranteed under Article 19(1)(a) and 21 of the Constitution of India against the exercise of power under Section 5(2) of the Act. Accordingly the Supreme Court issued order and directions in this regard so that the right to privacy of a person is protected. Delegated legislation cannot be questioned for violating the principles of natural justice in its making except when the statute itself provides for that requirement. Where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it is not possible to read natural justice into such legislative activity. Moreover, a provision for such "inquiry as it may consider necessary" by a subordinate legislating body is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body.65 While exercising legislative functions, unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere.66 (b) Implied Restrictions While applying the doctrine of substantive ultra vires to delegated legislation, the courts do not look merely at the express words of the enabling provision in the parent statute, but go beyond them and also imply certain restrictions therein. The idea is that the courts do not want the executive to do certain things by using its general rule-making power without being specifically authorised to do so by law. This approach, to some extent, helps in preservation of individual liberty, strengthening of judicial control over delegated legislation, and giving a somewhat broader dimension to the doctrine of ultra vires. (1) Unreasonableness The first implied restriction is that an unreasonable rule is invalid. To begin with, the principle was applied in England to the bye-laws made by a municipal corporation. The courts' position was that the Legislature could never intend to confer power to make unreasonable rules and, therefore, such rules would be ultra vires. But, the concept of unreasonableness was kept within very strict limits as it was realised that unreasonableness could vary from judge to judge. The first significant case in the area is Kruse v. Johnson ,67 in which Lord Russel while laying down the proposition that an unreasonable municipal bye-law would be invalid said that "the courts should jealously watch the exercise of these powers, and guard against their unnecessary or unreasonable exercise to the public disadvantage." Nevertheless, he gave a very limited meaning to the term unreasonableness, viz., if the bye-laws were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; or if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, then these could be regarded as unreasonable and ultra vires.68 But a bye-law would not be unreasonable "merely because particular judges may think that it goes further than is prudent or necessary or convenient", or because it was not accompanied by a qualification or exception which some

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judges might think ought not to be there. In Kruse, the bye-law was held as not unreasonable. It was also pointed out that the power to make bye-laws was subject to a number of procedural safeguards. As was later explained by Diplock, L.J. in Mixnam69: "The various grounds upon which subordinate legislation has sometimes been said to be void.....can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a bye-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires .. If the Courts can declare subordinate legislation to be invalid for 'uncertainty,' as distinct from unenforceable ... this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain....'." Thus, the concept is that the rules be not unreasonable rather than that they be reasonable. Prof. Alan Wharam in his Article entitled 'Judicial Control of Delegated Legislation : The Test of Reasonableness' in 36 Modern Law Review 611 at pages 622-23 has summarised the present position in England as follows : (i)

(ii)

(iii)

(iv)

"It is possible that the Courts might invalidate a statutory instrument on the grounds of unreasonableness or uncertainty vagueness or arbitrariness : but the writer's view is that for all practical purposes such instruments must be read as forming part of the parent statute, subject only to the ultra vires test. The Courts are prepared to invalidate bye-laws, or any other form of legislation emanating from an elected representative authority, on the grounds of unreasonableness uncertainty or repugnance to the ordinary law : but they are reluctant to do so and will exercise their power only in clear cases. The Courts may be readier to invalidate bye-laws passed by commercial undertakings under statutory power, although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings, as explained in Kruse v. Johnson , might not now be applied so stringently. As far as subordinate legislation of non-statutory origin is concerned, this is virtually obsolete, but it is clear from French Protestant Hospital In re (1951) Ch. 567 that it would be subject to strict control.70

For long, the judicial view was held in England that the principle of unreasonableness would apply only to bye-laws made by local authorities but not to rules made by government departments. Although, in theory, there can be no reason for not applying the test of unreasonableness to departmental rules, the courts, nevertheless, took the view that they should trust the discretion of a minister because he was directly responsible to Parliament.71 The tenability of this proposition appears to have been shaken in course of time. In Mixnam,72 it was settled that departmental rules could be declared unreasonable. This proposition has now been placed beyong doubt by the House of Lords decision in Mceldowney v. Forde ,73 where views were expressed that a ministerial regulation can be held void on such grounds as vagueness, ambiguity, arbitrariness, uncertainty, unreasonableness and bad faith.74 Uncertainty arises when the court is unable to attach any meaning to the language of the rule. In McEldowney, however, the regulation in question which was made by a Minister was upheld by the House by 3:2 against the charge of being "too vague and so arbitrary as to be wholly unreasonable." Even Cure & Deeley75 has been read by some commentators as supporting the proposition that ministerial regulations could be held invalid on the ground of unreasonableness.76 In India, the test of unreasonableness is applied to delegated legislation under the Kruse v. Johnson doctrine. For example, certain bye-laws made by the Hyderabad Municipal Corporation were held to be meaningless and arbitrary, and hence void. The Court invoked Kruse v. Johnson for the purpose.77 In 1972, the Supreme Court applied the test of unreasonableness to the rules made by the Government and struck them down as wholly unreasonable.78 In another case,79 the Supreme Court considering the question of applicability of the doctrine of unreasonableness, and adopting the Kruse v Johnson test, has stated that

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unless it can be said that a bye-law is manifestly unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the court on the ground of unreasonableness. The Board of Education made a regulation permitting a candidate to apply for verification of his marks but not for revaluation of his answer books or inspection or disclosure of the answer book which was to be treated as confidential. The High Court struck down the regulation as being unreasonable. On appeal, the Supreme Court reversed the High Court saying that it was for the Board to lay down rules regarding verification of marks and inspection of answer books. The Supreme Court has emphasized that a court cannot strike down a bye-law as unreasonable merely because it thinks that it goes further than "is necessary", or that it does not incorporate certain provisions which, in the opinion of the court, would have been fair and wholesome. A court cannot say that a bye-law is unreasonable merely because it does not approve of it. "The responsible representative body entrusted with the power to make bye-laws must ordinarily be presumed to know what is necessary, reasonable, just and fair."80 In this connection, the Court observed : ".. . when considering whether a bye-law is reasonable or not, the court would need a strong case to be made against it and would decline to determine whether itwould have been wiser or more prudent to make the bye-law less absolute nor will it hold the bye-law to be unreasonable because considerations which the court would itself have regarded in framing such a bye-law have been overlooked or rejected by its framers."

However, in the area of fixation of rates at which a government enterprise will provide services to the public, the Court has exhibited reluctance to apply the test of unreasonableness. This question is discussed later in the Chapter on Public Enterprises. In India, the courts can imply the concept of unreasonableness not only from the common law as is done in England, but also from Art. 14 of the Constitution of India. Art. 14 is the equality clause which guarantees equal protection of laws and equal treatment to all before the law.81 Under Art. 14, the courts regard any delegated legislation as invalid which is arbitrary or unreasonable. According to judicial thinking, any law which is unreasonable or arbitrary denies equality. As the Supreme Court has emphasized in Indian Express,82 arbitrariness "will come within the embargo of Art. 14 of the Constitution". The Kerala High Court has stated the proposition thus: "Any regulation which is not fair, reasonable or rational would run the risk of being invalidated by a court of law."83 This formulation as to unreasonableness is much broader than the one in Kruse v. Johnson . In India, therefore, the doctrine of unreasonableness is based on a more solid foundation than on a common-law principle alone. The courts in India thus enjoy more flexibility for expanding the concept of unreasonableness rather than confining it to the extremely restrictive view prevailing under the common-law. A case in point is Air India v. Nergesh Meerza .84 Air India, a statutory public corporation,85 made a rule to retire any air hostess on her first pregnancy after marriage. The Supreme Court characterised the rule as the "most unreasonable and arbitrary provision which shocks the conscience of the court", which is "extremely detestable and abhorrent to the notions of a civilized society," which amounts to "an open insult to Indian womanhood," and which "contains the quality of unfairness and exhibits naked despotism". The rule was thus held violative of Art. 14. Here the Court took recourse to a much wider concept of unreasonableness than the common law doctrine propounded in Kruse v. Johnson . In another case,86 the Supreme Court has declared a rule made by the Railway Board as unreasonable. The Court pointed out that the rule-making power is given to the Board under the Railway Establishment Code but "such rules must be framed with certain objects in view and must not be arbitrary". "The court is always entitled to examine whether a particular rule which takes away the vested right of a railway employee or seriously affects him with retrospective effect, has been made to meet the exigencies of circumstances or has been made arbitrarily without any real objective behind it." In the instant case, the Court did not find "any objective or purpose" behind the impugned rule made to the serious prejudice of the appellants. Thus, the rule was held to be arbitrary and it could not be allowed to be operative to the detriment of the appellants. A service rule provided that a civil judge could be promoted as an assistant judge provided he was below the age of 48 years. The rule was quashed as irrational, arbitrary and unreasonable, as there was no nexus between the age restriction and appointment by promotion of an assistant judge.87 A rule authorising a public sector undertaking to dismiss a permanent employee just by giving him a three months' notice, or three months' salary in lieu of notice, has been quashed by the Supreme Court as being arbitrary and unreasonable vis-a-vis Art. 14.88 A rule giving power to the government to retire a government

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servant after 30 years' service has been declared invalid under Art. 14 as conferring arbitrary power without any guidelines having been laid down.89 A rule prescribing Re 1/- per month as subsistence allowance payable to a government servant under suspension who has been sentenced to imprisonment pending his appeal against conviction till he is dismissed from service has been held to be invalid as being unreasonable, illusory and meaningless. The sum of Re 1/- per month can never sustain a civil servant for even a day much less for a month.90 Further, certain other fundamental rights in the Indian Constitution also introduce the concept of reasonableness, as for example, Art. 19. The Government of India issued a notification under S. Section 25 of the Customs Act withdrawing certain exemptions granted in favour of newsprint from the levy of customs duty. This led to the imposition of a heavy burden on the newspapers. The Supreme Court criticised this step as being inconsistent with Art. 19(1)(a). The Court ruled that the Government had issued the impugned notification without considering all the relevant circumstances. The Court said, "The power exercisable under S. 25 is no doubt discretionary but it is not unrestricted". Accordingly, the Court directed the Government to reconsider the matter of levy of customs duty on newsprint.91 A Price-fixing order can be challenged as being unreasonable under Art. 19(1)(g), but the Supreme Court has shown reluctance to assess the reasonableness of an individual price-fixing order.92 This topic is further discussed later in this book.93 On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say, the Constitution. This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt, be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant.94 (2) Rules Excluding Court's Jurisdiction Another implied restriction is that the jurisdiction of the courts should not be excluded by means of delegated legislation made in exercise of the general rule-making power. A legislature can do so by using clear words for the purpose in the statute, but a rule-making authority ought not to do so unless there is a specific grant of power to this effect in the parent statute.95 The courts jealously guard the right of the citizens to have recourse to them to settle their disputes. A very good case to illustrate this principle is Cure & Deeley.96 A statute authorised the Commissioners of Customs and Excise to make regulations for giving effect to the Act providing for "any matters for which provision appears to them to be necessary." The Commissioners made a regulation providing that where a proper return was not filed, they might themselves determine the tax due and that the amount so determined by them would be the tax payable. The regulation thus excluded the assessee from access to the courts in such a case. The Court held the regulation invalid. Excluding the subject from having access to the court to have the issues determined was held to be repugnant to the Act, its general nature, objects and scheme. The Court emphasized that the normal scheme of the Act was to define the goods and transactions which attracted the tax and leave it to the courts to decide disputes between the executive and the subject in the normal way. The regulation in question was held repugnant to this scheme of things and constituted an attempt to assume arbitrary power to determine a tax liability which was properly to be determined according to the Act with a right of appeal to the court and amounted to an attempt to oust the court's jurisdiction. Recently, the House of Lords in Raymond v. Honey ,97 has reaffirmed the principle that a citizen's right to unimpeaded access to the courts can only be taken away by express enactment. Accordingly, a rule fettering a prisoner's right of access to courts and, in particular, his right to institute proceedings in person, was held ultra vires. The principle is operative in India as well. It may also be mentioned that in India the parliamentary committee on subordinate legislation has an obligation to draw the attention of the House if court's jurisdiction is excluded through a rule.98 (3) Financial Levy Another implied restriction read by the courts into the general rule-making power is that no tax, charge, or financial levy can be imposed by any bye-law, rule or regulation, made under the general power to make

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rules, unless the parent statute under which the subordinate legislation is being made specifically authorises such a levy. A general power to make rules does not warrant imposition of a financial levy through delegated legislation. The classic case on the point is Attorney-General v. Wilts United Dairies .99 A regulation empowered the Food Controller to make orders "regulating or giving directions with respect to the production, manufacture, treatment, use, consumption, transport, storage" etc. of any article. Under this power, he issued an order banning any one dealing in milk without a licence. The appellants were granted a licence on the condition that they paid to the Controller a levy per gallon of milk purchased. Later the question arose whether the Controller could impose the levy, without being authorised to do so, by the regulation in question. Could such a power be implied? The court declared the levy invalid. The court reasoned that the executive could justify a charge upon the subject only if it could show in clear terms that the Legislature had authorised the particular charge. The principle has been accepted by the courts in India. The Supreme Court has ruled that no tax can be levied by any bye-law rule or regulation, unless the statute under which the subordinate legislation is being made specifically authorises such an imposition.1 It has been held that for a levy of fee to be valid, the power to charge fees must be expressly conferred by law on the executive.2 If such is power is not expressly given, it cannot be implied from the general power to make rules for the purposes of the Act. But, recently, the Supreme Court seems to have deviated from this wellestablished principle.3 S. 15 of the Mines & Minerals Act, 1957 empowers the State Government to grant mining leases in respect of minor minerals and to make rules to regulate the same. Before 1972, the Act contained no provision authorising the State Government to charge any royalty on mineral extraction. It was argued that in the absence of express provision in the Act for charging royalty, the government could not do so. However, the Supreme Court thought otherwise. In its opinion, the power to makes rules for regulating the grant of such leases" would "include the power to fix the consideration payable by the lessee to the lessor in the shape of ordinary rent or surface rent or dead rent and royalty." The Court went on to say : if this were not so, it would lead to the absurd result that when the Government grants a mining lease, it is granted gratis to a person who wants to extract minerals and profit from them.

Thus, the Court thought that the power to grant mining leases would include the power to charge royalty. In 1972, the Act was amended and such a power was specifically conferred on the State Government. By the rules made under the Central Excises and Salt Act, 1944, provision was made for charging of fees for the inspection of excisable goods. The Lok Sabba Committee on Subordinate Legislation pointed out that there was no enabling provision in the Act to charge fees for services rendered by the Central Excise officers. Accordingly, the Act was suitably amended in 1985. (4) Retrospectively Another implied restriction is against making rules with retrospective effect unless the parent Act expressly or by necessary implication confers a power to that effect. Parliament or a State legislature can enact laws with retrospective effect as there is no prohibition in the Constitution against ex post facto laws, except in the area of criminal law.4 But the position of a sub-ordinate legislator is different. The courts have consistently taken the view that a subordinate legislator cannot exercise a similar power and give retrospectivity to the rules made by it unless the parent statute gives it a power to do so either in express terms or by necessary implication. He has to act within the limits of the power delegated to him and a mere general power to make rules "to carry out the purposes of the Act" does not entitle him to make retrospective rules.5 The Supreme Court has stated in this regard : "... an authority which has the power to make subordinate legislation cannot make it with retrospective effect unless it is so authorised by the Legislature which has conferred that power on it."6 The reason for this proposition is that retrospective rules may prejudicially affect vested interests and rights of the people; people act on the faith of the existing law, and so rules ought not to change the character of past transactions, and it is, therefore, proper that only a representative body like the legislature, and not its delegate, does that. Accordingly, the courts declare retrospective rules invalid7 unless the rule-making authority has power to do so under the parent statute.8 Thus, a notification issued by the government investing a tehsildar with the power to recover tax with retrospective effect was held invalid

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because the parent statute gave no power to the Government to make rules with retrospective effect.9 In Bakul,10 a retrospective notification exempting cashew industry from payment of sales tax was held to be ineffective. Similarly, in State of Bihar v. Krishna Kumar Kabra ,11 the Supreme Court held that delegated legislation cannot be made operative to impose sales tax retrospectively. In Hukam Chand, the Supreme Court held that the Central Government could not amend the rules with retrospective effect as no such power was given by the parent statute.12 In another case, a legislative order having been held invalid, a fresh order was issued. A clause in the new order stated that anything done or action taken under the old order should be deemed to have been taken under the new order. The court declared the clause invalid on the ground of retrospectively because the parent Act did not confer any power on the government to issue a retrospective order.13 On the same analogy, the Supreme Court has denied power to a cooperative society to amend its bye-laws with retrospective effect, as there was nothing in the parent Act impliedly or expressly conferring power on such societies to amend their bye-laws with retrospective effect.14 In A.V. Nachane v. Union of India ,15 it was held that retrospective amendment of the rules cannot nullify the effect of the writ issued by the court earlier concerning the subject-matter. These rules would operate prospectively only as far as that judgment was concerned. However, in K. Kuppusamy v. State of T.N. ,16 the Supreme Court held that, unless expressly or by necessary implication the amendment of a rule is found to be retrospective, ordinarily it would be prospective in nature. However, in G. Nagendra v. State of Karnataka ,17 it was held that the rules can be given retrospective effect. When the government issued a notification exempting a commodity from sales tax in the middle of the financial year, but failed to specify the date from which the notification was to be operative, the court ruled that it would be operative from the beginning of the financial year. The reason adduced was that sales tax was a yearly tax under the law and it was made payable on the annual taxable turnover of a dealer. So the exemption from tax must operate for the whole year in the absence of any clear indication to the contrary. This interpretation obviously conferred a benefit on the tax payers.18 Similarly, a notification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees.19 A clarificatory notification can be given a retrospective effect.20 It may be mentioned here that according to one of its terms of reference, the parliamentary committee on subordinate legislation is specifically required to object to retrospective operation being given to rules without there being authority for the purpose in the relevant parent Act.21 This underlines the doubtful propriety of retrospective delegated legislation. However, the courts have relaxed the above norm somewhat in a few situations. In Musaliar,22 the Supreme Court upheld a notification dated July 26, 1949, bringing an Act enacted on July 1, 1949, into force from July 22, 1949, on the ground that the date fixed for the operation of the Act was subsequent to the date of its enactment. In Suman,23 the Supreme Court upheld a notification having retrospective effect because it was made to effectuate an order of a quasi-judicial body; it was neither unreasonable nor mala fide; it fell within the rule-making power of the concerned authority, and if it was not given retrospective effect, its very purpose would stand defeated.24 Service rules made under Art. 309 of the Constitution may be given retrospective effect as Art. 309 has been interpreted to be wide enough to enable rules being made with retrospective effect.25 The Supreme Court has argued that Art. 309 confers power on the legislature to make service rules, and failing that, the concerned government can make these rules. Thus, the government-made rules fill a "hiatus" till the legislature legislates, and the range of rule-making power of the government is co-extensive with the power of the legislature to legislate. Rules made by the executive are only transient in nature and do duty only until legislation is enacted and, therefore, these rules should have the same range of operation as a law made by the legislature which can be both prospective as well as retrospective. A service rule (made under Art. 309) gave power to the Governor to relax the rigour of the general rules in

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such manner as appeared to him to be just and equitable. The Supreme Court interpreted this rule as authorising the Governor to relax a rule with retrospective effect. The Court argued that the power was meant to be exercised in the interest of justice and equity. When some injustice came to the notice of the government, justice had to be done by exercising the power with retrospective effect, otherwise the object and purpose of the rule in question would be largely frustrated.26 The attention of the government may be drawn to a case where there has been a failure of justice. In such a case, justice can be done only by exercising the power with retrospective effect. The government power to make retrospective service rules has in practice not been exercised, with caution and circumspection. In some States, service rules have become "a plaything" in the hands of the government as rules are changed with every change in the government; sometimes rules are amended with long retrospective effect, at times, as long as seven years with a view to benefit a few specific individuals. The Supreme Court has taken note of this tendency in B.S. Yadav v. State of Haryana .27 To curb such a tendency, the Court has ruled that the retrospective operation of a rule will be struck down if there exists no reasonable nexus between the concerned rule and its retrospectively. Such a nexus may be shown either from the face of the rule or by extrinsic evidence. In Yadav, the Court refused to give retrospective operation to the rule in question as it found no nexus between the rule and its retrospectively. This is a new principle evolved by the Court to test the validity of retrospective rules trade under Art. 309. This principle comes very close to the principle, discussed above, that unreasonable rules are invalid. In Yadav, the Court advised the government not to make retrospective service rules as it causes frustration, discontent and demoralisation among the civil servants by falsifying their just expectations. Thus, the Court was moved to rule like this in order to curb the unbridled power of the government as it felt that the power was not being exercised properly. Art. 309 envisages legislation by the legislature as regards service matters and government's rule-making power in this area is "transient in nature".28 But it is surprising that even though forty years have passed since the Constitution became operative, service matters still continue to be governed by rules and administrative directions.29 However, in I.C.A.R. v. Satish Kumar ,30 the Apex Court held that retrospective operation to service rules could not be given by mere executive instructions. No comprehensive legislation to regulate service matters has so far been enacted either by Parliament or any State Legislature. The reason is that every government wants to retain flexibility in this area and does not want to give up its leverage over its employees by having fixed rules through laws made by the legislature. Art. 148(5) of the Constitution also gives rule-making power to prescribe conditions of service of persons serving in the Audit and Account Department, subject to any law made by Parliament. Service rules for these employees can be made by the President in consultation with the Comptroller and Auditor-General. Because of the difference in phraseology of Art. 148(5) and Art. 309, Art. 148(5) has been interpreted, unlike Art. 309, as not authorising retrospective rules.31 Retrospective rules have been quashed on several ground arising out of Art. 14, e.g.: taking away accrued rights;32 amendment of a service rule to the disadvantage of a class of officers;33 unfairness, arbitrariness, violation of the principles of equality. "It is open to judicial review", the Supreme Court has asserted, "whether any rule ... has violated the principles of equality and non-arbitrariness . . . "34 In Upen Chandra Gogoi v. State of Assam ,35 the Supreme Court held that the subsequent rules cannot validate the appointment made earlier contrary to the rules prevailing at the time of appointment. The Court cannot issue direction for the creation of promotion avenue retrospectively neither can it direct the Govt. to make rules by way of subordinate legislation with retrospective effect.36 Subsidy cannot be withdrawn with retrospective effect where the purchase has been made before the withdrawal of the scheme.37 A benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystallized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested right.38

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4. PROCEDURAL ULTRA VIRES Delegated legislation may be held invalid on the ground of procedural ultra vires. The enabling statute may require the rule-making authority to follow some procedural norms while making rules. Some of the procedural norms usually imposed are: previous publication, consultation with affected interests, publication, laying before the legislature, etc.39 The question often arises whether the rules made in disregard of the prescribed procedural norms are valid or not. An answer to this question depends on the answer to another question: whether the said procedural norms are to be regarded as directory or mandatory ? The courts take the view that while the directory procedural norms may be substantially complied with, the mandatory ones must be meticulously observed. As Mudholkar. J., has stated in Raza Buland: "While a mandatory provision must be strictly complied with, substantial compliance is sufficient with respect to a directory provision".40 Non-observance of this rule would make the rules so made ultra vires, and this is known as procedural ultra vires. Thus, to apply procedural ultra vires, the first question for the courts to decide is whether the provision in the parent Act prescribing the procedure is directory or mandatory. Usually when the statutory provision uses the word 'shall' it is regarded as mandatory and when the word 'may' is used, it is regarded as directory. But this test is not conclusive of the matter and examples can be found in the case-law where 'may' has been interpreted as mandatory and 'shall' as directory. Depending upon the context, 'shall' can either be construed literally and thus as mandatory, or liberally and so as directory. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.41 However, whether a procedural requirement is mandatory or directory is ultimately a matter for the decision of the court depending on how much importance does the court attach to the procedure required to be followed. A few examples may be mentioned here. In Raza Buland Sugar Co. v. Rampur Municipality ,42 considering the question whether a statutory provision using the word 'shall' was mandatory or directory, the Supreme Court said that such a question cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The Court observed:43 "The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."44

In Kalipada v. Union of India ,45 the Supreme Court considered the nature of S s. 12(1) and 59(3) of the Mines Act, 1952. S. 12(1) provides for constitution of mining boards by the Central Government. This provision says: the Central Government "may constitute" a mining board for any territory. On the other hand, S. 59(3) lays down that before the draft regulations are published, the draft shall be referred to every mining board and it should have a reasonable opportunity of reporting as to the expediency of making the regulations and their suitability. The Supreme Court held S. 12(1) to be directory. The power of the Central Government is discretionary. In the context, "may" in S. 12(1) cannot mean 'shall'. The Court observed, "Whether or not the word 'may' means 'may' or it means 'shall' would inevitably depend upon the context in which the said word occurs...". On the other hand, S. 59(3) was held to be mandatory; reference of draft regulations to every mining board, if constituted, is a prerequisite for the validity of the regulations.46 It is immaterial whether the board makes a report or not, or sends individual opinions of the members instead of a collective report of the board.47 Generally, consultative procedure whenever laid down by a statutory provision as a prelude to rule-making is regarded as a mandatory procedure as courts attach great importance to this democratic procedure.48 In the same category falls the procedure seeking to provide an opportunity to the affected persons to file objections against any proposed rules. A rule made without providing such an opportunity will be invalid.49 A requirement for pre-publication of draft rules is regarded as mandatory.50 If a statute requires giving of three months' notice for effectuation of the rules, then giving of

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such a notice is mandatory.51 All these norms are variants of the consultative procedure. A simple laying procedure is regarded as merely directory in nature.52 A statutory provision requiring publication of delegated legislation is regarded as mandatary.53 Para 16 of the Export and Import Policy provided that the Chief Controller of Imports and Exports might specify the procedure to be followed by an exporter or importer or by any licensing, competent and other authority for the purpose of implementing the rules and orders made under the policy by means of public notice but a clarification was issued not by means of public notice. The Supreme Court held that it could not be sustained.54 It needs to be pointed out that there is some judicial dicta somewhat deviating from the general rule stated above as regards the observance of procedural norms. In some cases, it has been suggested that rules may not be invalid even if there is no compliance with a directory procedural norm.55 Such an approach makes a procedural norm, held to be directory, as completely inefficacious. There are also cases diluting the efficacy of mandatory procedural norms by suggesting that substantial, and not strict, compliance with a mandatory procedural norm would be adequate and a rule is not to be invalidated on the ground that there was no strict compliance with such a procedure.56 As a comment on this judicial approach, it may be said that it does not seem to be proper for the courts to mitigate the importance of procedural norms. When Parliament lays down a procedural norm in the statute, its intention is that it must be followed. Legislature does not lay down a procedural norm in a statute for merely ornamental purposes. Therefore, to say that a directory procedure need not be followed at all amounts to negativing legislative intent. 5. EFFECT OF ULTRA VIRES A decision by a court that a piece of delegated legislation is ultra vires makes it void and renders it incapable of ever having any effect upon the rights and duties of the concerned parties to the proceedings. Although such a decision is directly binding only as between the parties to the proceedings in which it was made, but because of the doctrine of precedent, the benefit of the decision accrues to all other persons whose legal rights have been interfered with in reliance of the law which the delegated legislation purports to declare. Until there is a challenge to the validity of some delegated legislation, and the same is upheld or invalidated by a court of law, there is presumption of validity of the delegated legislation in question as well as of legality of acts done in pursuance thereof.57 If the valid and invalid portions of a rule can be severed then only the invalid portion of the rule is quashed and the valid portion can continue to remain operative. Whether the invalid portion can be severed from the valid portion is a question for the court to decide. But if the invalid and valid parts of a rule are inextricably mixed up, then the entire rule has to be set aside.58 The Supreme Court has made an important pronouncement in Indian Express.59 A legislative order dated July, 1977, was superseded by another order dated March 1, 1981. The latter order was held to be ultra vires by the Court in the instant case. The Court has ruled that the invalidation of the latter order would not lead to the revival of the earlier order. When any provision is held to be ultra vires, it covers the field as against all its subjects who are within the jurisdiction of the said legislation and the Court.60 Challenging Rules: The question of invalidity of subsidiary legislation can be raised either directly, or, collaterally, by way of defence to a civil claim based thereon, or as a defence to a prosecution for an offence of infringing the delegated legislation in question.61 No offence is committed by infringing an invalid rule. A person can also challenge an administrative action taken under subsidiary legislation by arguingg against its validity. A void rule cannot be the basis of any administrative action. A person whose interest is adversely affected by some rules can directly challenge their vires through a court case. The court may grant an injunction or declaration or issue an order in the nature of mandamus or award damages, as may be suitable. The question of remedies has been discussed later in the book.62

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In Kishan Prakash Sharma v. U.O.I. ,63 it was observed that the validation of an invalid rule by amending the main enactment under which it is made, is a well-known legislative device approved by the Supreme Court. (1) Repeal or Modification of Rules By issuing a notification, the Govt. kept a certain rule framed earlier in abeyance. The notification was quashed by the Administrative Tribunal and the Govt. was directed to give it partial effect. The Apex Court agreed with the submission of the Govt. that the rule framed by it was legislative in character and such a rule could at any time be repealed or modified and when the matter was under consideration of the Govt., the Tribunal could not issue such a direction.64 Once an administrative order is issued, it can be revoked only by another administrative order and not by oral submission before the Court.65 The authority that frames the rules can also amend them.66 The cut-off date laid down by the office memorandum (OM) for reckoning of the criterion for promotion could not be altered or replaced by the letter of the Central Ministry to the Secretary of the Union Public Service Commission proposing an alternative date.67 6. EXEMPTION FROM OPERATION OF RULES There cannot be relaxation of the rules which are mandatory in nature and cannot be dispensed with specially in the case of a high-rise building. The position may be different in the case of one-or two-storyed building where there are minor deviation from the Rules, which do not affect public safety and convenience. The Government cannot deviate from the prescribed procedure when granting exemption from operation of Rules.68 7. STATUTORY EXCLUSION OF JUDICIAL REVIEW (a) Interrelation of Parliamentary Supervision and Judicial Review As we shall see, some statutes introduce a system of parliamentary control over delegated legislation either through the 'laying' procedure pure and simple, or coupling it with a 'negative' or an 'affirmative' resolution procedure.69 Does this parliamentary control oust the doctrine of ultra vires and that of judicial control of delegated legislation? The answer to this question is in the negative. The judicial view is that even when delegated legislation is contained in an order approved by resolution of both Houses of Parliament, the courts do retain jurisdiction to declare it invalid on the ground of ultra vires, whether procedural or substantive. Lord Diplock has explained the position well in Hoffman:70 in constitutional law, a clear distinction exists between an Act of Parliament and subordinate legislation, even though the latter is contained in an order approved by the two Houses of Parliament. Lord Diplock observes:71 "Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, ... the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted out with the legislative powers conferred on him by the previous Act of Parliament under which the order purported to be made; and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)."

Recently, on the same question, the Court has stated that although Parliament is supreme, yet when Parliament authorises ministers to take executive action, "it is the duty of the courts in appropriate cases to consider whether ministers have exceeded that authority", minister's authority being derived from Parliament and contained in an Act of Parliament. The Court has pointed out that when Parliament affirms the rules, it does not give lawful authority to do something which was unlawful when it was done. Parliament could not do so by a simple motion in each House; it would need enactment of a statute. Parliament is concerned more with the merits or policy underlying the rules; the court with the legality. Parliament does not consider whether the Minister's action was or was not lawful; this is a matter for the court; unlike Parliament, it is not for the courts to approve or disapprove of minister's actions.72 A similar position obtains in India. The Supreme Court has ruled that when rules are required to be laid

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before Parliament, the doctrine of ultra vires is not excluded; rules remain subject to this doctrine and will not be valid if outside the scope of the rule-making power. The 'laying' requirement has no impact on the legal validity of the rules, or on the application of the doctrine of ultra vires to delegated legislation. Rules ultra vires the statute under which they are made, cannot be presumed to be valid, nor are the courts prevented from scrutinising the validity of the rules, because they were laid before the Legislature and they were subject to such modification, amendment or annulment as the Legislature might deem fit.73 So, in Hukam Chand,74 while holding that the rules could not be made with retrospective effect under the statute in question, the Supreme Court also ruled that the 'laying' requirement would not confer validity on such rules. Recently, in Indian Express,75 the Supreme Court has again expressed the view that the fact that a notification is required to be laid before Parliament "does not make any substantial difference as regards the jurisdiction of the court to pronounce its validity". However, as already stated, recently the Supreme Court has in some cases invoked the laying procedure to meet the challenge of excessive delegation.76 This does not seem to be a healthy development in view of the practical inefficacy of the laying procedure.77 (b) As if enacted clause At times, legislative draftsmen seek to exclude judicial review of delegated legislation by incorporating some formula or set of words within the parent statute. This is because of the propensity of the Administration to try to insulate the rules made by it from legal challenge. For this purpose, a number of formulae are used but, on the whole, it can be said that the reaction of the courts generally to such exclusionary formulae is to interpret them restrictively and in such a manner that judicial review is not totally excluded.78 No formula has been evolved as yet which may succeed in barring the courts completely from reviewing delegated legislation on the ground of ultra vires. This judicial attitude emanates from the courts' desire to preserve their jurisdiction as a safeguard against improper use of statutory powers by the Administration.79 A formula used at times in the statutes for the purpose of excluding judicial review of rules is to say that the rules enacted under the Act would have effect "as if the rules were enacted or included in the Act itself." This is known as the "as if enacted clause." The implications of this formula have caused some doubt over time. The question of interpretation of these words came before the courts in England several times. One possible explanation of these words could be that Parliament in England being sovereign, no statute passed by it could be challenged in a court, and if the rules were to be regarded as a part of the statute itself then the rules themselves would become non-challengeable and judicial review of the rules excluded. This was the initial judicial response. Initially, the House of Lords, accepted such a broad view of the clause in Institute of Patent Agents v. Lockwood .80 Lord Herschell found it difficult to explain the meaning of these words, or suggest the effect to be given to them, if notwithstanding them the rules were still open to review by the courts. He could not give any other meaning to these words except this that the rules "for all purposes of construction or obligation or otherwise" should be treated "exactly as if they were in the Act." This view thus sought to exclude the doctrine of ultra vires and accord to the rules a finality and freedom from judicial review in the presence of the "as if enacted clause" in the parent statute. But, in course of time, this judicial view came to be criticised as representing the high watermark of the inviolability of delegated legislation as it had the effect of making delegated legislation exempt from judicial review just as the statute itself was exempt therefrom.81 The House of Lords overruled the Minister of Health v. The King, ex parte Yaffe .82 Lord Dunedin took the view that it was inconceivable that such words in the Act could extend protection without limit. If the delegate went out of his province altogether, it was repugnant to commonsense that the rules would still be protected. He thus expressed the view that delegated legislation, if inconsistent with the parent Act, could not be regarded as having been made under the Act and so it could not form part of the Act itself and, thus, it could not be saved and it would be invalid. Therefore, in England, the validity of the rules remains subject to the ultra vires doctrine in spite of the presence of the 'as if enacted' clause in the parent Act. Only when the delegated legislation in question falls within the limits of the power conferred by the statute, and conforms to the conditions imposed, and is thus intra vires, that it acquires the force of law. The 'as if enacted' formula does not preclude judicial consideration of the vires of delegated legislation.83

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The 'as if enacted' formula has been used in India as well but its legal effect has not been beyond doubt because the judicial view about its implications has not so far been uniform, consistent and definitive. The Supreme Court adopted the Herscehll (or the Lockwood) doctrine in a few earlier cases,84 while in a few later cases, the Court declared the rules invalid in spite of the 'as if enacted' clause.85 In State of Kerala v. KM. Charia Abdulla and Co. ,86 the Court stated that if the rule-making authority transcends the limits of the power conferred, the rules would be invalid and the 'as if enacted' clause could attach no additional sanctity to the rules. The Court observed: "Power to frame rules is conferred by the Act upon the State Government and that power may be exercised within the strict limits of the authority concerned. If in making a rule, the State transcends its authority, the rule will be invalid, for statutory rules made in exercise of delegated authority are valid and binding only if made within the limits of the authority delegated. Validity of a rule whether it is declared to have effect as if enacted in the Act or otherwise is always open to challenge on the ground that it is unauthorised."87 This comes nearer the Yaffe rather than the Lockwood approach. The Supreme Court has again considered the matter recently.88 S. 281(2) of the Cantonments Act provides that the rules made under the Act, on publication "shall have effect as if enacted in the Act." The Appellants argued that the rules in question became a part of the statute and, accordingly, the question of their contrariety to the Act could not arise at all. Rejecting the contention as unsound, the Supreme Court observed: "It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But, before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely : (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void."

Thus, the Court ruled that in spite of S. 281(2), "any rule framed under the Cantonments Act has to fulfil the two conditions mentioned above for their validity". A rule was held ultra vires the Act in the instant case. This means that an ultra vires rule cannot be validated by such a formula. It is suggested that this is the reasonable and logical approach to take; the courts should apply the ultra vires doctrine even when the rules are declared to be effective "as if enacted in the Act." The rules constitute delegated legislation; the delegate can claim no more power than what the ambit or scope of the rule-making power conferred by the statute is; the rules ultra vires the rule-making power being void ab initio cannot form part of the statute. The Supreme Court has recently reiterated this ruling in Asstt. Collector, Central Excise v. Rantakrishnan .89 8. CONCLUSIVE EVIDENCE CLAUSE Another formula used in the statutes at times to exclude judicial review of delegated legislation is to say that when the rules are notified, the notification will be "conclusive evidence" that the rules have been duly made in accordance with the provisions of the Act. This clause is known as the "conclusive evidence" clause. The effect of such a clause on judicial review of delegated legislation is not very clear. The judicial view has been variable and not uniform. One thing is clear: this clause does not shut out all enquiry by the courts. Then, several questions arise: Will the formula oust judicial review on the ground of substantive ultra vires, or when there is complete lack of jurisdiction to make the rules in the rule-making authority? Or, will the formula exclude not substantive but procedural ultra vires only? Or, does the formula immunize rules only if minor deviations from procedure are made or when only a directory procedural norm is infringed? According to the CMP, "the protection afforded even by this clause is not limitless".90 The position seems to be well settled that the 'conclusive evidence' clause cannot touch a case where there is complete lack of jurisdiction in the concerned authority to frame the impugned rules.91 As will be seen later, the courts never condone jurisdictional error in a decision-making authority even in the face of a privative clause.92 This means that the clause will not cure substantive ultra vires. Since 'as if enacted' clause, as noted above, is not taken to cure substantive defects in the rules, similar should be the case in respect of 'conclusive evidence' clause, which ought to be treated no higher than that. The clause does cure some procedural defects in the rule-making process. Even on the phraseology of the provision it would appear to be so, for the clause in question only shows that the rules have been 'duly

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made', and this indicates reference to rule-making procedure only. If the statute prescribes some procedure for the making of the rules, and the rule-making authority fails to observe some of the steps in the prescribed procedure, the 'conclusive evidence' clause may be invoked to protect the rules from being invalidated. But the question is how far deviation from the prescribed procedure will be tolerated by the courts. Will the clause in question cure infringement of a mandatory, or only of a directory, procedural requirement? The judicial views expressed so far seem to be equivocal. In some cases, a broad view has been expressed and, in some, a narrow view. In Raza Buland,93 Hidayatullah, J., talking about such a clause said: "It lays down emphatically a rule of evidence which precludes courts from making inquiries into the minutiae of procedure with a view to declaring the imposition invalid." But he raised the question whether the clause in question enacted an absolute rule of evidence or one merely related to 'venial defects, errors or omissions'. It appears to be established that if the procedural defects are not of a fundamental nature, but are of a minor or directory nature, and have not caused any substantial prejudice to the persons affected by the impugned rules, then these defects will be cured by such a clause. In Raza Buland, rules were saved by invoking the 'conclusive evidence' clause because there was substantial compliance with the 'directory' procedural norms laid down in the relevant statute for making of bye-laws by the concerned municipality.94 In Raza Buland,95 an argument was raised on behalf of the concerned municipality that the clause in question would validate a rule as soon as notified even if no procedural provision had been complied with at all. The Supreme Court left the question open saying that "the question in this form does not arise before us directly". However, the Court indirectly expressed its disapproval of the argument in this broad form, for it observed : If S.135(3) means that where there is substantial compliance with the provisions of the Act that would be conclusive proof that they have been complied with there can be no valid objection to such a provision. But if the section is interpreted to mean ... that even if there is no compliance whatever with any mandatory provision relating to imposition of tax and the only thing proved is that a notification under S. 135(3) has been made, the tax would still be good, the question may arise whether S. 135(3) itself is a valid provision. For present puposes it is unnecessary to decide that question. ...."

There are some other cases in which a similar view has been taken, viz., that the 'conclusive evidence' clause can cure deviation from directory, but not mandatory, procedural norms.96 For example, the Supreme Court held so in Sitapur Municipality v. Prayag Narain .97 The factual situation in this case was as follows. Ss. 131-135 of the U.P. Municipalities Act, 1916 laid down the procedure for imposing a tax by a municipality. First, the municipal board must pass a special resolution framing the preliminary tax proposal. The Sitapur Municipality passed such a resolutions to levy water tax. Secondly, the board was required to prepare draft rules, and the Sitapur Board took this step as well. Thirdly, the board was required to publish, in the prescribed form. Sitapur Municipality published the draft rules along with a notice in a local newspaper, but the proposal as such was not published separately, though it could be found in the draft rules published. Objections filed by the inhabitants against the proposed tax were duly considered by the Sitapur Board and it finally approved the tax proposal in a modified form. Under S. 132(2), it was necessary for the Board to publish the modified proposal, and deal with the objections received against it. The Sitapur Board failed to take this step. Nevertheless, the proposal was duly sanctioned by the concerned authority. Thereafter, as required by S. 134(2), the Sitapur Board passed a special resolution directing imposition of the tax, but this resolution was not published in the prescribed manner. Thereafter, under S. 135(2), the concerned authority notified the imposition of the tax in the official gazette. S. 135(3) provided that "a notification of the imposition of a tax under sub-section (2) shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act". The levy of the water tax was challenged on the ground of non-publication of the preliminary proposal separately, non-publication of the modified proposal according to S. 132(2), and the non-publication of the special resolution directing imposition of the tax. Holding the levy valid, the Supreme Court pointed out that the procedural defects were not of a fundamental character as no substantial prejudice had been caused thereby to the inhabitants of the municipality. Omission to publish the original proposal separately was a mere irregularity and the object of the publication, viz., to inform the inhabitants of the proposal so that they could file their objections thereto had been fully achieved. Non-publication of the modified proposal did not cause any prejudice to the inhabitants as they had full opportunity to raise objections to the proposed tax and the modified proposal was to levy the tax at a reduced rate. Non-publication of the special resolution also did not create an infirmity, and was a mere irregularity as the inhabitants had no right to file objections against it. Whatever the procedural defects, they were cured by the

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issue of the notification under S. 135(2) which was 'conclusive proof' that all necessary steps for the imposition of the tax had been taken in accordance with the provisions of the Act. It is thus clear from the tenor of the decision that the 'conclusive evidence' clause cures only procedural irregularities and not deviation from any fundamental procedural norm. However, there are some cases in which judicial dicta may be found conceding a wider converge to the 'conclusive evidence' clause. For example, in Berar Swadeshi Vanaspati,98 the Supreme Court said: "Having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken." This statement would show that the clause in question can cure even infringement of mandatory procedural norms. But in this case the Court did not discuss the question at all but facilely assumed that the clause meant so. Again, in Maunath Bhanjan Municipality v. S.C. Mills ,99 the Supreme Court considered the scope of the provision in the parent Act, saying that a notification published under it would be 'conclusive proof' that the tax had been imposed in accordance with the provisions of this Act, and the Court stated, expounding the scope of the clause, that "when a probative effect had been given by law making the notification of the imposition of the tax 'conclusive proof' that the tax had been imposed 'in accordance with the provisions of this Act', no evidence could be allowed to combat that fact, and we have no hesitation in holding that the imposition was according to law." 100

This formulation as regards the effect of the 'conclusive evidence' clause would appear to be very broad; it may seem to suggest that the clause would immunize even a breach of a mandatory procedure, or lack of rule-making power in the concerned authority. But when viewed in the context of the specific facts and issues in the case, it would seem that it was not meant to be so. The notification in question was published under S. 300 of the Act; it was challenged on the ground that it ought to have been published under S. 135 of the Act. The Court held by-passing the objection raised that in "fact and substance" the impugned notification was issued under S. 135, and "it would not matter if it did not make a specific reference to that sub-section and made a reference to S. 300 instead." The Court ruled: "It is the nature of the notification which is decisive of the section under which it has been issued", and then it went on to state that this defect would also be cured by the 'conclusive evidence' clause. At another place, the Court also said that the clause would cure 'technical' defects. Thus, the defects actually sought to be cured were merely technical and minor in nature although the observation in question conveys a much broader sense. Thus, the question of the effect of the 'conclusive evidence' clause on judicial review of delegated legislation so far remains enigmatic. The courts do not appear to be very clear on this point. If the clause is taken merely to protect and immunize the rules against attacks on the ground of deviation from procedural norms of a directory nature, then the clause does not serve much of a purpose, for, even in the absence of such a clause, the courts would not quash rules when only directory, and not mandatory, procedural norms are not observed meticulously by the rule-making authority.1 But if the clause is given a broader connotation, then it will tantamount to diluting the doctrine of ultra vires and with it the judicial review of delegated legislation, and this may effectively nullify whatever safeguards may have been woven into the fabric of the parent statute against misuse of the rule-making power. Broad interpretation of the clause is against the general tenor of Administrative Law and also against the general judicial policy of preserving judicial view and interpreting exclusionary clauses restrictively. As will be seen later, the courts never condone jurisdictional error in a decision-making body even in the face of a privative clause.2 The courts ought to tolerate only insignificant deviations from directory procedural norms and not cases of substantive ultra vires or of deviation from mandatory procedural norms, such as, consultative process.3 It is suggested that the correct view was propounded by the Supreme Court in Raza Buland,4 and the clause ought not to be given any wider coverage than that. As it is, the control over delegated legislation in India is already very weak, and, therefore, the courts should have power to intervene in cases of non-observance of significant or mandatory provisions of the law, e.g., when the law provide. for inviting objections against the proposed rules and the objections are either not invited at all, or are not considered by the rule-making authority and a democratic procedural norm is violated.5 The best thing, of course, would be for the legislature to avoid using such clauses in the statutes. The clause either serves no purpose or may be mischievous in scope. If the clause is interpreted restrictively as curing non-confermity with directory procedural norms only, then it serves no

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purpose for delegated legislation is in any case immune against minor breaches of directory procedural norms. If the clause is interpreted broadly, it becomes objectionable as it negates mandatory procedural requirements and other substantive restrictions contained in the law, thus freeing the executive from any legal restraints in the matter of rule-making. What purpose is really served if the law, on the one hand, lays down procedural and substantive safeguards, and, on the other hand, makes the courts powerless to enforce them and take cognizance of any breaches of such safeguards in making delegated legislation. The CMP has characterised the "conclusive evidence" clause as "objectionable" and has expressed a doubt whether it was ever 'justified'.6 (a) Bagla Case It has already been stated that delegated legislation which is intra vires the parent Act may yet be held to the ultra vires if it comes in conflict with any other statute. At times, a statute may contain words so as to protect rules made under it from being invalidated on the ground of inconsistency with any other statute. For example, such a formula was upheld by the Supreme Court in Bagla.7 The formula was to be found in the Essential Supplies Act, 1946, and is now present in the Essential Commodities Act, 1955. Such a formula was again upheld by the Supreme Court in Nachane.8 S. 48(2)(cc) of the Life Insurance Corporation Act, 1956, authorises the Central Government to make rules in respect of the terms and conditions of service of the employees and agents of the Corporation. Sub-section (2)(c) provides that these rules "shall have effect notwithstanding anything contained in the Industrial Disputes Act or any other law for the time being in force. The provision was challenged on the ground of excessive delegation of legislative power. It was argued that "repealing a law" was an "essential legislative function" and no legislative policy or guidelines were laid down in the parent Act as regards the extent to which the rule-making authority would be competent to override any statute. The Supreme Court rejected the contention. Citing Bagla, the Court said that what was said there regarding S. 6 of the Essential Supplies Act could very well be said as regards S. 48(2c) which is similar in terms insofar as it authorises the Central Government to make rules by-passing the existing laws." The Court rationalized the situation be saying, as it had said earlier in Bagla, that it was not really rules that overrode the existing laws but the power to override the existing laws was enacted be Parliament itself. The Court found the police of the Act in the preamble as offering sufficient guidance to the Central Government in exercising its rule-making power under that Act. Finally, the Court referred to S. 48(3) requiring laying of rules before Houses of Parliament and authorising them to make any modifications in the rules. "This makes it perfectly clear that Parliament has in no way abdicated its authority, but is keeping strict vigilance and control over its delegate," said the Court. This however is only a formalistic argument as the 'laying' procedure does not, in effect, lead to any 'strict vigilance and control' by Parliament over its delegate.9 Nevertheless, the Court did rule that no rules could be made with retrospective effect so as to nullify the effect of the writ issued by the Supreme Court in an earlier case. 9. SOME MISCELLANEOUS PRINCIPLES (a) Repugnance between rules Subordinate legislation enacted under one Act will impliedly repeal the earlier subordinate legislation made under another Act if there is repugnancy between the two pieces of delegated legislation, i.e. if both deal with the same subject-matter and both cannot stand together and operate simultaneously. This will be so even if the earlier delegated legislation is by the State Government and the latter by some other official. There is no question of one delegate being lower than the other in status. In other words, the status and character of the rule-making authority would be irrelevant as both are delegates of the legislature. In the instant case, the rules and bye-laws made by the municipality in 1965 under the Gujarat Municipalities Act, 1964, were allowed to prevail over the earlier rules made be the State Government under an ordinance of 1949, as both covered the same ground.10 In 1925, under the U.P. Municipalities Act, 1916, the U.P. Government made octroi rules concerning levy of octroi duties by the municipalities. In 1963, under the same Act the Government made separate rules for assessment and collection of octroi by the Bareilly Municipality. The Supreme Court ruled that so far as the Bareilly Municipality was concerned, the 1963 rules superseded the 1925 rules.11

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(b) Void Rule A rule which is void remains void and it does not matter that it has remained in force for long without being challenged. A rule which is void remains void whether it has been acquiesced in or not.12 A void rule does not become valid by lapse of time. (c) Notes At times, explanatory notes are appended to the rules.13 The judicial attitude is to treat these notes as part of the rules. The Rajasthan Government made some service rules under Art. 309 of the Constitution,14 and some explanatory notes were appended thereto. The Supreme Court held in Tara Singh v. State of Rajasthan 15 that the notes had legal effect similar to that of the rules themselves because the notes were made by the government contemporaneously with, and were promulgated along with, the rules in exercise of its legislative powers. The function of the notes was to provide procedure, control discretion and fill up the gaps where the rules were silent. The notes were of aid not only in applying the rules but also in interpreting their true import and considering their validity under the Constitution. (d) Non-exercise of Rule-making Power A usual practice for legislatures in India is to pass a statute and then leave it to the executive to bring it into force at some future date. At times, the Government may be empowered to bring different provisions of a statute into force on different dates. What happens if the Government sleeps over the matter and does not bring the Act into force for long? Such a question was raised before the Supreme Court in A.K. Roy v. Union of India .16 Parliament enacted the 44th Amendment of the Constitution adding some more safegurds to Art. 22 for the benefit of those confined in preventive detention. However, instead of bringing the Amendment into force immediately the Central Government was given discretion to bring it into effect at a future date. For long the Act was not brought into force. The question was whether the Court could issue mandamus to compel the Government to bring the Act into force. The Court refused to accept the argument that the Government's failure to bring the Act into force was mala fide.17 The Court ruled by a majority of three to two that it could not compel the executive to bring the Act into force. The power was given to the government in subjective terms and so it was ultimately a matter which lay in the hands of Parliament. Parliament can compel the government to bring the Act into force if it so likes. If Parliament lays down an objective standard to guide and control the government's discretion to bring the Act into force, then the Court can compel the government to discharge the function assigned to it by Parliament. On the other hand, the dissenting judges took the view that the Court could itself issue mandamus requiring the Act to be brought into force when the same had not been done after the lapse of a reasonable period (here two and half years) and when there was no practical or administrative difficulty in this regard. But in Aeitemesh Rein v. India ,18 where a provision of the Advocates Act had not been brought into force for nearly 27 years, the Supreme Court ruled that while it would not issue mandamus directing the government to bring the provision into force, it would issue mandamus directing the government to consider the question whether the time for bringing the provision into force had arrived or not. The rule-making power is granted by the statutes to the Administration in permissive terms. It often happens that the executive does not issue rules for years under provisions enabling it to make rules.19 Can the government be compelled by the courts to make the rules? On the analogy of Roy, mentioned above, it may be said that the courts will not order the government to exercise its rule-making power if it chooses not to do so. The Supreme Court has now ruled in Indian Express20 that mandamus cannot be issued to a subordinate rule-making authority to enact or not to enact a rule which the authority has power to make. The Court has also ruled that pending the making of rules, the government may carry on by issuing directions.21 In A.S. Narayana Deekshitulu v. State of A.P. ,22 the Supreme Court observed that it is settled law that existence of rules is not a condition for the Act to become operative. This has further reduced any urgency to make rules. However, the matter is taken cognisance of by the Committees on Subordinate Legislation. They have been critical of the government's inaction in the matter of making rules.23

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(e) Repeal or invalidation of the parent act As delegated legislation is conceptually an extension of its parent legislation, the rules can subsist only so long as the parent Act survives. If the parent Act is repealed or invalidated, the delegated legislation made thereunder automatically falls to the ground. However, in a few cases it may so happen that the repealing Act may continue the rules made under the Act being repealed till the new rules are framed.24 (f) Interpretative Rules At times, the Administration may issue interpretative rules, i.e., rules interpreting or clarifying statutory provisions. Through these rules, the Administration seeks to give its own interpretation of a statutory provision. The system of issuing interpretative rules is widespread in the U.SA. where administrative agencies issue "interpretations, rulings, or opinions upon the laws they administer, without any specific authorisation to do so."25 The system prevails in England as well to some extent.26 Such interpretative rules issued by the Administration to clarify statutory provisions do not have any final effect because what is binding on the courts is the statute and not any interpretation put on it by the Administration. In our terminology, the interpretative rules are more akin to directions. In actual practice, however, a good deal of value is attached to the administrative interpretation of a statutory provision which may have held the field for considerable length of time, and the courts may be guided by it, to some extent, though the courts are free to put their own meaning on a statutory provision rather than feel bound by the, administrative view thereof. For example, in Oudh Sugar Mills v. State of M.P. ,27 the High Court pointed out that the interpretation put by government for a considerable length of time may have some value; it may be considered as a relevant matter or an effective guide to a proper interpretation of the statutory provision. In the instant case, however, the Court rejected the administrative interpretation of a rule by characterising it as "an untenable interpretation, which is opposed to commonsense interpretation and which in effect would amount to rioting with commonsense." As the Supreme Court has said in another context: "There can be no estoppel against the statute."28 (g) Power to relax rules The note appended to the Note 10(3) of the U.P. Jal Nigam Engineers (Public Health Branch) Services Regulations, 1978 gives lever for relaxation of conditions of recruitment and enables adoption of any other criteria for the selection and promotion of Junior Engineers and Computers to the post of Assistant Engineer. In other words, it enabled to relax the rules prescribed for passing the qualifying examination for selection to the posts of Assistant Engineers. The Supreme Court observed that it ran contrary to the settled service jurisprudence and the law laid down by the Apex Court itself and deleterious to augment efficacy of service and would dry out the source to improve excellence and honest service. As the said note was not the subject-matter of attack, the Court refrained from further observation.29 In an auction-purchase, the bidder deposited the 25%of the sale price immediately but failed to pay the balance of 75%within the fixed period. It was held that the sale became void and neither the chief officer nor the Municipal Council had power to relax or even condone the delay and accept the delayed payment.30 Relaxation cannot be read into a provision where the rule itself mandates the maximum period of study leave.31 In Haridas Parsedia v. Urmila Shakiya ,32 the Supreme Court held that once the power of relaxation by Rules framed under Article 309 was available to the Government, the said power exercised either by a general administrative order or by special administrative order. (h) Delay in trial In Raj Deo Sharma v. State of Bihar ,33 the Supreme Court held that the trial Courts cannot be permitted to flout the mandate of Parliament to continue examination of witnesses from day-to-day until the witnesses in attendance have been completed unless the Court has very cogent and strong reasons. The Apex Court directed the High Court to remind the trial judges through a circular of the need to comply with this provision

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of Section 309 of the CrPC, 1973 in letter and spirit and to take note of the conduct of any particular trial judge who violates the legislative mandate and to adopt such administrative action against the delinquent judicial officer as law permits.

1 See under heading : Need for safeguard, Chapter III . 2 (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 689 (para 75) : AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 3 (2003) 3 SCC 1 [LNIND 2003 SC 164] [LNIND 2003 SC 164] [LNIND 2003 SC 164], 10 (para 20) : AIR 2003 SC 1191 [LNIND 2003 SC 164] [LNIND 2003 SC 164] [LNIND 2003 SC 164]. 4 Roopal v. Lt. Governor, AIR 2000 SC 594 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149]: (2000) 1 SCC 644. 5 Secretary, Ministry of Chemicals & Fertilizers v. Cipla Ltd., (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625], 10 (para 4.3) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 6 Secretary, Ministry of Chemicals & Fertilizers v. Cipla Ltd., (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625], 9 (para 4.1) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 7 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 528 (para 15). 8 Sharma Transport v. Govt. of A.P., AIR 2002 SC 322 [LNIND 2001 SC 2753] [LNIND 2001 SC 2753] [LNIND 2001 SC 2753]: (2002) 2 SCC 188. 9 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 528-29 (para 16), relying on Indian Express Newspapers (Bombay) (P.) Ltd. v. Union of India, (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337] : 1985 SCC (Tax) 121; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152], 334 : AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]; St. John's Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175] : AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]; Rameshchandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCC 722 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86] : AIR 1981 SC 1055 [LNIND 1981 SC 212] [LNIND 1981 SC 212] [LNIND 1981 SC 212]; Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] : AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. See also Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 490, 511 (paras 117 and 201). 10 M.P. Jain, Indian Constitutional Law (1987). 11 AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]: 1954 SCR 803. 12 AIR 1950 SC 163 [LNIND 1950 SC 24] [LNIND 1950 SC 24] [LNIND 1950 SC 24]: 1950 SCR 566. Also see, Md. Faruk v. State of M.P., AIR 1976 SC 93 : (1969) 1 SCC 853; Jain, Cases, Chapter IV, for an example of an unconstitutional rule under Art. 19(1)(g). 13 AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375. 14 Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380 : 1954 Crlj 1322; Jain, Cases, Chapter III, Sec. D. 15 M.P. Jain, Indian Constitutional Law, 471-497 (1987). 16 See, for example: Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 [LNIND 1985 SC 196] [LNIND 1985 SC 196] [LNIND 1985 SC 196]: 1985 SCC (Supp) 72; Nidmarti v. State of Maharashtra, (1986) 2 SCC 534 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111]. Sankar Mukherjea v. Union of India, AIR 1990 SC 532 [LNIND 1989 SC 570] [LNIND 1989 SC 570] [LNIND 1989 SC 570]: 1990 (2) LLJ 443 : 1990 Supp SCC 66. Also, infra, under Unreasonableness, under this chapter. 17 Senior Supdt. of Post Office v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain, Cases, 432. Also see, infra, under Directions, Chapter VIII and Discretionary Powers, Chapter XVII-XIX ; Jain, Cases, Chapter XV .

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18 See, O.P. Bhandari v. Indian Tourism Development Corp. Ltd., AIR 1987 SC III : (1986) 4 SCC 337 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353] : 1986 (2) LLJ 509 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353]; Delhi Transport Corp. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395 : 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. Also see, infra, Chapter XVIII . 19 AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 542 (paras 73 and 75) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 20 Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, 314 (para 13) : AIR 1996 SC 911, relying on Indian Express Newspapers (Bombay) (P.) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]: (1985) 1 SCC 64 and State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400] : AIR 1987 SC 251 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400]. 21 Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304, 313 (para 12) : AIR 1996 SC 911. 22 Madanlal Sethi v. State of M.P., (1997) 5 SCC 141 [LNIND 1997 SC 558] [LNIND 1997 SC 558] [LNIND 1997 SC 558], 147 (para 13) : AIR 1977 SC 2264. 23 Central Organisation of T.N. Electricity Employees v. T.N. Electricity Board, (2005) 8 SCC 729 [LNIND 2005 SC 831] [LNIND 2005 SC 831] [LNIND 2005 SC 831], 745 (para 50). 24 See, infra, under Judicial Control and Discretionary Powers, Chapters XVII XIX . 25 St. Johns Teachers Training Institute v. Regional Director, NCTE, (2003) 3 SCC 321 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175], 332 (para 12) : AIR 2003 SC 1533 [LNIND 2003 SC 175] [LNIND 2003 SC 175] [LNIND 2003 SC 175]. See also Molar Mal v. Kay Iron Works (P.) Ltd., (2000) 4 SCC 285 [LNIND 2000 SC 476] [LNIND 2000 SC 476] [LNIND 2000 SC 476], 297 (para 15) : AIR 2000 SC 1261 [LNIND 2000 SC 476] [LNIND 2000 SC 476] [LNIND 2000 SC 476]. Presumption of intra vires T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 [LNIND 2002 SC 681] [LNIND 2002 SC 681] [LNIND 2002 SC 681], 585-86 (para 155) : AIR 2003 SC 355 [LNIND 2002 SC 681] [LNIND 2002 SC 681] [LNIND 2002 SC 681]. 26 P.P. Craig: Administrative Law, 5th Edn., 2003, p. 389. 27 AIR 1983 SC 550 [LNIND 1983 SC 96] [LNIND 1983 SC 96] [LNIND 1983 SC 96]: (1983) 2 SCC 402. See also Myurdhwaj Co-operative Group Housing Society Ltd. v. Presiding Officer, Delhi Co-operative Tribunal, (1998) 6 SCC 39 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603], 48 (para 11) : AIR 1998 SC 2410 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603]. 28 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619], 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]. 29 Greater Bombay Municipal Corp. v. Nagpal Printing Mills, AIR 1988 SC 1009 [LNIND 1988 SC 174] [LNIND 1988 SC 174] [LNIND 1988 SC 174]: (1988) 2 SCC 466. See also Major Radha Krishan v. Union of India, (1996) 3 SCC 507 [LNIND 1996 SC 2721] [LNIND 1996 SC 2721] [LNIND 1996 SC 2721], 511 (para 9) : AIR 1996 SC 3091 [LNIND 1996 SC 2721] [LNIND 1996 SC 2721] [LNIND 1996 SC 2721]. 30 Delhi Science Forum v. Union of India, (1996) 2 SCC 405 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421], 417 (para 13) : AIR 1996 SC 1356 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421]. 31 Supra, Chapter IV, 67-70. 32 Infra, this Chapter. 33 Infra, this Chapter. 34 Kunj Behari Lal Butail v. State of U.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], para 15 : AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], Following Supreme Court Employees' Welfare Assn. v. U.O.I., (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1999 SC 334 and General Officer Commanding-in-Chief v. Subhash Chandra Yadav (Dr.), (1988) 2 SCC 351 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621] : AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]; relying on Sant Saran Lal v. Parsuram Sahu, AIR 1966 SC 1852 [LNIND 1965 SC 181] [LNIND 1965 SC 181] [LNIND 1965 SC 181]: 1962 Supp (2) SCR 189 and Bhim Singhji v. U.O.I., (1981) 1 SCC 166 : AIR 1981 SC 1982 [LNIND 1980 SC 347] [LNIND 1980 SC 347] [LNIND 1980 SC 347]. 35 Consumer Action Group v. State of T.N., (2000) 7 SCC 425 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130], para 18 : AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]. 36 Supra, Chapter IV. 37 CMP Report, 65.

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38 Supra, Chapter IV, 56 et seq. 39 Maharashtra S.B.O.S. & H.S. Education v. Paritosh, AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]: (1984) 4 SCC 27; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 230, 254-57; Jain, Cases, Chapter IV, Sec. B (i). 40 I.R.C. v. National Federation of Self-Employed and Small Businesses, (1981) 2 All ER 93 at 107. 41 AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572]: (1985) 2 SCC 197; Jain, Cases, Ch, III, Sec. I. 42 Shree Meenakshi Mills Ltd. v. Union of India, AIR 1974 SC 366 [LNIND 1973 SC 360] [LNIND 1973 SC 360] [LNIND 1973 SC 360]: (1974) 1 SCC 468. 43 Hoffman-La Roche v. Secretary of State for Trade and Industry, (1975) AC 295; Jain Cases, Chapter XI, 93b. 44 Hoffman-La Roche v. Secretary of State for trade and industry, (1975) AC 295, 366. Also see, Mceldowney v. Forde, (1971) AC 632. 45 AIR 1986 Ker 86 at 99. 46 Also see, State of U.P. v. Babu Ram, AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292]: 1961 (1) Crlj 773 : 1970 (1) LLJ 670. 47 See, next Chapter. 48 State of U.P. v. Janata Industrial Udyog, AIR 1991 SC 477 : 1991 Supp (2) SCC 506. 49 K.C. Pazhanimala v. Kerala, AIR 1969 Ker 154 [LNIND 1968 KER 130] [LNIND 1968 KER 130] [LNIND 1968 KER 130]. 50 See Senior Supdt. of Post Office v. Izhar Husain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain Cases, 432, infra, Chapter XVIII . Also see State of Punjab v. Hari Kishan, AIR 1996 SC 1081 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118]: (1996) 2 SCC 98; Channagiri v. District Magistrate, AIR 1971 Mys 244; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744. 51 Bar Council of Delhi v. Surjeet Singh, AIR 1980 SC 1612 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224]: (1980) 4 SCC 211. 52 State of Punjab v. Hari Kishan, AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: 1966 (2) SCR 982; Channagiri v. District Magistrate, AIR 1971 Mys 244; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744; also see, infra, Chapter XIX . 53 B.B. and D. Mfg. Co. v. E.S.I. Corp., AIR 1972 SC 1932. 54 Atlas Cedes Ltd. v. State of Haryana, AIR 1972 SC 121 [LNIND 1971 SC 671] [LNIND 1971 SC 671] [LNIND 1971 SC 671]: (1971) 2 SCC 564. 55 See, for some old cases on ultra vires: Yassin v. Town Area Committee, AIR 1952 SC 115 [LNIND 1952 SC 11] [LNIND 1952 SC 11] [LNIND 1952 SC 11]: 1952 SCR 572; Tahir Hussain v. Dist. Board, Muzaffarnagar, AIR 1954 SC 630 [LNIND 1954 SC 289] [LNIND 1954 SC 289] [LNIND 1954 SC 289]; Ganpati Singh v. State of Ajmer, AIR 1955 SC 188 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168]: 1955 (1) SCR 1065. 56 General Officer, Commanding-in-Chief v. Suphash Chandra, AIR 1988 SC 877 : 1988 (2) LLJ 345 : (1988) 2 SCC 351 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]. 57 Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1918 : 1972 (2) LLJ 259 : (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300]. 58 AIR 1996 SC 2513 [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26]: (1996) 10 SCC 136. 59 (1996) 10 SCC 136, 142 (para 7) : AIR 1996 SC 2513 [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26] [LNINDORD 1996 SC 26]. 60 State of Bihar v. Ranchi Timber Traders' Association, (1996) 5 SCC 276 [LNIND 1996 SC 1098] [LNIND 1996 SC 1098] [LNIND 1996 SC 1098], 278 (para 4) : AIR 1996 SC 2774 [LNIND 1996 SC 1098] [LNIND 1996 SC 1098] [LNIND 1996 SC 1098]; See also Hyderabad Vanaspathi Ltd. v. A.P. State Electricity Board, (1998) 4 SCC 470 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405], 488 (para 35) : AIR 1998 SC 1715 [LNIND 1998 SC 405] [LNIND 1998 SC 405] [LNIND 1998 SC 405]; Regns. 25 and 31(4) as amended by Regulation dated 3.2.2000, held intra vires Section 58 of Electricity Regulatory Commissions Act, 1998, W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], 740 (para 50) : AIR 2002 SC 3588 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632].

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61 Chintu Nayak v. State of Jharkhand, (2005) 13 SCC 415, 416 (para 3). See also National Centre for Human Settlement & Environment v. U.O.I., (2005) 12 SCC 369, 370 (para 2). 62 Competent Authority v. Barangore Jute Factory, (2005) 13 SCC 477 [LNIND 2005 SC 928] [LNIND 2005 SC 928] [LNIND 2005 SC 928], 483-85 (para 5). 63 Purxotoma v. Union of India, AIR 1970 Goa 35; Tahir Hussain v. District Board, Muzaffarnagar, AIR 1954 SC 630 [LNIND 1954 SC 289] [LNIND 1954 SC 289] [LNIND 1954 SC 289]. 64 Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375; Santosh Kumar Jain v. Union of State, AIR 1951 SC 201 [LNIND 1951 SC 16] [LNIND 1951 SC 16] [LNIND 1951 SC 16]: 1951 Crlj 757 : 1951 SCR 303. 65 AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116. 66 Minerva Talkies, Bangalore v. State of Karnataka, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Jain, Cases, Chapter IV, 170. 67 AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]: (1981) 2 SCC 205. Also see, Jain, Cases, Chapter IV, Sec. B (i), 164. 68 Keshav Talpade v. Emperor, AIR 1943 FC 1 at 8. 69 Emperor v. Sibnath Banerji, AIR 1954 PC 156 at 160. Also see, Santosh Kumar v. State, AIR 1951 SC 201 [LNIND 1951 SC 16] [LNIND 1951 SC 16] [LNIND 1951 SC 16]: 1951 Crlj 757 : 1951 SCR 303; Afzal Ullah v. State of U.P., AIR 1964 SC 264 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220]: (1964) 4 SCR 991 : 1964 (1) Crlj 156; Kasinathan v. Govt. of Madras, AIR 1967 Mad 21 [LNIND 1965 MAD 355] [LNIND 1965 MAD 355] [LNIND 1965 MAD 355]; Om Prakash v. Union of India, AIR 1971 SC 771 : (1970) 3 SCC 942; K. Ramanathan v. State of Tamil Nadu, AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116; Minerva Talkies, Bangalore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Ajay Canu v. Union of India, AIR 1988 SC 2027 [LNIND 1988 SC 417] [LNIND 1988 SC 417] [LNIND 1988 SC 417]: (1988) 4 SCC 156; Asstt. Collector, Central Excise v. Ramakrishnan, AIR 1989 SC 1831 : 1989 Supp (1) SCC 541; D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1986 Supp SCC 20; Jain, Cases, Chapter IV, 241. 70 Regina v. St. A.H.E.. School, AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178]: (1972) 4 SCC 188. 71 Foremost Dairies v. State, AIR 1986 Raj 116. 72 Afzal Ullah v. State of U.P., AIR 1964 SC 264 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220]: 1964 (1) Crlj 156 : 1964 (4) SCR 991 [LNIND 1963 SC 220] [LNIND 1963 SC 220] [LNIND 1963 SC 220], followed in Om Prakash v. State of U.P., (2004) 3 SCC 402 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328], 409 (para 12); P.V. Mani v. Union of India, AIR 1986 Ker 86; Indian Aluminium Co. v. K.S.E. Board, AIR 1975 SC 1967 [LNIND 1975 SC 225] [LNIND 1975 SC 225] [LNIND 1975 SC 225]: (1975) 2 SCC 414; M.B. Municipality v. S.C. Mills, AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 2 SCC 875; also see, infra, under 'Conclusive Evidence' Clause. 73 H.C. Suman v. Rehabilitation Ministry Employees' Coop. House Building Society Ltd., (1991) 4 SCC 490, 505 : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]; Pournami Oil Mills v. State of Kerala, AIR 1987 SC 590 [LNIND 1986 SC 529] [LNIND 1986 SC 529] [LNIND 1986 SC 529]: 1986 Supp SCC 728; Asstt. Commr., Commercial' Taxes v. Dharmendra Trading Co., AIR 1988 SC 1247 [LNIND 1988 SC 288] [LNIND 1988 SC 288] [LNIND 1988 SC 288]: (1988) 3 SCC 570. 74 Chairman, Public Service Commission, J&K v. Sudarshan Singh Jamwal, (1998) 9 SCC 327, para 3 : AIR 1999 SC 840. 75 Shanmuga Traders v. State of T.N., (1998) 5 SCC 349, 354 (para 14) : AIR 1999 SC 1516, overruling Royal Steel Traders, Madras, (1992) 1 MTCR 580. 76 State of H.P. v. Nurpur Private Bus Operators' Union, (1999) 9 SCC 559 [LNIND 1999 SC 897] [LNIND 1999 SC 897] [LNIND 1999 SC 897], 561 (paras 6 and 7). See also Govt of T.N. v. Park View Enterprises, (2001) 1 SCC 742 [LNIND 2000 SC 1616] [LNIND 2000 SC 1616] [LNIND 2000 SC 1616], 747 (para 11). 77 V. Sunder v. Bar Council of India, (1999) 3 SCC 176 [LNIND 1999 SC 246] [LNIND 1999 SC 246] [LNIND 1999 SC 246], 198 (para 16) : AIR 1999 SC 1167 [LNIND 1999 SC 1609] [LNIND 1999 SC 1609] [LNIND 1999 SC 1609]. Rule 32 of the Railway claims Tribunal (Procedure) Rules, 1989, held, ultra vires Section 18(3)(f) of the Railway Claims Tribunal Act, 1987, Kalpataru Agroforest Enterprises v. Union of India, (2002) 3 SCC 692 [LNIND 2002 SC 172] [LNIND 2002 SC 172] [LNIND 2002 SC 172], 696 (para 15) : AIR 2002 SC 1565 [LNIND 2002 SC 192] [LNIND 2002 SC 192] [LNIND 2002 SC 192], notification violating parent Act, Competent Authority v. Baramgore Jute Factory, (2005) 13 SCC 477 [LNIND 2005 SC 928] [LNIND 2005 SC 928] [LNIND 2005 SC 928], 483-84 (para 5). 78 See under heading : Henry VIII Clause, Chapter IV .

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79 AIR 1980 SC 650 [LNIND 1979 SC 440] [LNIND 1979 SC 440] [LNIND 1979 SC 440]: (1980) 1 SCC 389. 80 For S. 45(10), see, supra, Chapter IV, 78. 81 (1996) 1 SCC 642 [LNIND 1996 SC 22] [LNIND 1996 SC 22] [LNIND 1996 SC 22], 660 : AIR 1996 SC 646 [LNIND 1996 SC 22] [LNIND 1996 SC 22] [LNIND 1996 SC 22]. See also Ratanlal Nath v. State of Tripura, (1997) 4 SCC 168 [LNIND 1997 SC 352] [LNIND 1997 SC 352] [LNIND 1997 SC 352], 176 (para 12) : AIR 1997 SC 1075 [LNIND 1997 SC 352] [LNIND 1997 SC 352] [LNIND 1997 SC 352]. 82 State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26 [LNIND 2003 SC 1015] [LNIND 2003 SC 1015] [LNIND 2003 SC 1015], 105 (para 120). 83 State of W.B. v. Jindal India Ltd., (2000) 9 SCC 369, 370 (para 4). 84 Om Prakash v. State of U.P., (2004) 3 SCC 402 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328], 409 (para 12) : AIR 2004 SC 1896 [LNIND 2004 SC 1328] [LNIND 2004 SC 1328] [LNIND 2004 SC 1328]. 85 (2000) 1 SCC 566 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103], 580 (para 29) : AIR 2000 SC 301 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103]. 86 AIR 1979 Goa 1. 87 On the power to exempt, see, supra, Chapter IV, 71-72. 88 Supra, Chapter IV, 73-74. 89 Rajnarain v. Chairman, Patna Administration, AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]: 1955 (1) SCR 290; Jain, Cases, Chapter III, 101. 90 Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. Also, Jain, Cases, Chapter III, 102. 91 For further comments, see XIIA. S.I.L. 476 (1976). 92 State of U.P. v. Renusagar Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]: (1988) 4 SCC 59 : (1991) 70 Comp Cas 127; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 22; Union of India v. Cynamide Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720; Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 93 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 534 (para 27), relying on Remeshchandra Kachardas Porwal v. State of Maharashtraa, (1981) 2 SCC 722 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86] : AIR 1981 SC 1127 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86]and Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] : AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. 94 Lord Pearson in Mceldowney v. Forde, (1969) 2 All ER 1039; Jain Cases Chapter IV, Sec. B (iii). 95 Agarwal, Ayengar & Co. v. State, AIR 1951 Bom. 307. 1 Bar Council of Delhi v. Bar Council of India, AIR 1975 Del 200 [LNIND 1974 DEL 196] [LNIND 1974 DEL 196] [LNIND 1974 DEL 196]. 2 L.M. Sundaram v. Director of Legal Studies, AIR 1981 Mad 198 [LNIND 1980 MAD 305] [LNIND 1980 MAD 305] [LNIND 1980 MAD 305]; Inamdar Vahale v. Symbosis Society's Law College, Pune, AIR 1984 Bom 451 [LNIND 1984 BOM 90] [LNIND 1984 BOM 90] [LNIND 1984 BOM 90]. 3 A.P. Co-op. Bank v. C.P. Co-op. L.M. Bank, AIR 1974 SC 1962. 4 Minerva Talkies, Bangalore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176; Also, Canu v. Union of India, AIR 1988 SC 2027 [LNIND 1988 SC 417] [LNIND 1988 SC 417] [LNIND 1988 SC 417]; S. Kandaswamy Chettiar v. State of Tamil Nadu, AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341], 260 : (1985) 1 SCC 290 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]; Registrar, Cooperative Societies, Trivandrum v. Kunjabmu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340 and 77; Jain, Cases, Chapter III, Sec. E. 5 AIR 1953 SC 79 [LNIND 1952 SC 81] [LNIND 1952 SC 81] [LNIND 1952 SC 81]: 1953 SCR 290. 6 AIR 1967 SC 1823 [LNIND 1967 SC 124] [LNIND 1967 SC 124] [LNIND 1967 SC 124]: (1967) 20 STC 367. 7 Durga Chand v. Union of India, AIR 1979 Del. 249 [LNIND 1979 DEL 107] [LNIND 1979 DEL 107] [LNIND 1979 DEL 107].

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Also see, Deepak Theatres v. State, AIR 1981 P&H 92. This view expressed by a single judge was reversed by the Division Bench, see, State of Punjab v. Deepak Theatre, AIR 1981 P&H 230. This view has been recently upheld by the Supreme Court; Deepak Theatre, Dhuri v. State of Punjab, AIR 1992 SC 1519 [LNIND 1991 SC 672] [LNIND 1991 SC 672] [LNIND 1991 SC 672]: 1992 Supp (1) SCC 684; infra, Chapter XVIII; Jain, Cases, Chapter XV, under Art. 19(1)(g). 8 D.V.K. Prasada Rao v. State of A.P., AIR 1984 AP 75 [LNIND 1983 AP 117] [LNIND 1983 AP 117] [LNIND 1983 AP 117]. 9 AIR 1984 SC 87 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300], 92 : (1984) 1 SCC 206 [LNIND 1983 SC 300] [LNIND 1983 SC 300] [LNIND 1983 SC 300]. 10 Minerva Talkies, Banglore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176. 11 AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]: (1984) 3 SCC 127 : 1984 (1) LLJ 368 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88]. 12 State of Maharashtra v. Babu Govind Gavate, (1996) 1 SCC 305 [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] (paras 3 & 4) : AIR 1996 SC 904 [LNIND 1995 SC 1041] [LNIND 1995 SC 1041] [LNIND 1995 SC 1041]; see also Hansraj & Sons v. State of J&K, (2002) 6 SCC 227 [LNIND 2002 SC 441] [LNIND 2002 SC 441] [LNIND 2002 SC 441], 237 (para 21) : AIR 2002 SC 2692 [LNIND 2002 SC 441] [LNIND 2002 SC 441] [LNIND 2002 SC 441]; B.L. Wadhera v. U.O.I., (2002) 9 SCC 108 [LNIND 2002 SC 307] [LNIND 2002 SC 307] [LNIND 2002 SC 307], 136 (para 36) : AIR 2002 SC 1913 [LNIND 2002 SC 307] [LNIND 2002 SC 307] [LNIND 2002 SC 307]; Kanyakumari District Sidha and Ayurveda Vaidyar Sangam v. Govt. of T.N., (1996) 8 SCC 342 [LNIND 1996 SC 568] [LNIND 1996 SC 568] [LNIND 1996 SC 568], 344 (para 3) : AIR 1996 SC 1314 [LNIND 1996 SC 568] [LNIND 1996 SC 568] [LNIND 1996 SC 568]. 13 Krishna Mohan Shukla v. Union of India, (2000) 10 SCC 507 [LNIND 2000 SC 160] [LNIND 2000 SC 160] [LNIND 2000 SC 160], 508-9 (para 1). 14 State of Gujarat v. Kalabhai Vallabhbhai, (1998) 8 SCC 683, 684 (paras 2 and 3). 15 Assam Co. Ltd. v. State of Assam, (2001) 4 SCC 202 [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] : AIR 2001 SC 1485 [LNIND 2001 SC 3047] [LNIND 2001 SC 3047] [LNIND 2001 SC 3047]. See also ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48 [LNIND 2003 SC 1007] [LNIND 2003 SC 1007] [LNIND 2003 SC 1007], 71 (para 56); Secy. Deptt. of Excise of Commercial Taxes v. Sun Bright Marketing (P.) Ltd., (2004) 3 SCC 185 [LNIND 2004 SC 204] [LNIND 2004 SC 204] [LNIND 2004 SC 204], 196 (para 36) : AIR 2004 SC 2743 [LNIND 2004 SC 204] [LNIND 2004 SC 204] [LNIND 2004 SC 204]; Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 [LNIND 2004 SC 1100] [LNIND 2004 SC 1100] [LNIND 2004 SC 1100], 760 (para 13). 16 State of U.P. v. Sitapur Packing Wood Suppliers, (2002) 4 SCC 566 [LNIND 2002 SC 312] [LNIND 2002 SC 312] [LNIND 2002 SC 312], 571 (para 10) : AIR 2003 SC 2165 [LNIND 2002 SC 312] [LNIND 2002 SC 312] [LNIND 2002 SC 312]. 17 Commissioner of Central Excise & Customs v. Venus Castings (P.) Ltd., (2000) 4 SCC 206 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND 2000 SC 598], 212 (para 12) : AIR 2000 SC 1568 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND 2000 SC 598], followed in Union of India v. Supreme Steels and General Mills, (2001) 9 SCC 645 [LNIND 2001 SC 2913] [LNIND 2001 SC 2913] [LNIND 2001 SC 2913], 646 (para 3) : AIR 2001 SC 2987 [LNIND 2001 SC 2913] [LNIND 2001 SC 2913] [LNIND 2001 SC 2913]. 18 B.S.E. Brokers' Forum v. Securities and Exchange Broad of India, (2001) 3 SCC 482 [LNIND 2001 SC 286] [LNIND 2001 SC 286] [LNIND 2001 SC 286], 499 (para 22) : AIR 2001 SC 1010 [LNIND 2001 SC 286] [LNIND 2001 SC 286] [LNIND 2001 SC 286], relying on Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 [LNIND 1992 SC 104] [LNIND 1992 SC 104] [LNIND 1992 SC 104] : AIR 1992 SC 1033 [LNIND 1992 SC 104] [LNIND 1992 SC 104] [LNIND 1992 SC 104]and U.O.I. v. Tulsiram Patel, (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219] : AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]. 19 Chairman, J&K State Board of Education v. Feyaz Ahmed Malik, AIR 2000 SC 1039 [LNIND 2000 SC 181] [LNIND 2000 SC 181] [LNIND 2000 SC 181]: (2000) 3 SCC 59. 20 Vikramaditya Pandey v. Industrial Tribunal, (2001) 2 SCC 423 [LNIND 2001 SC 168] [LNIND 2001 SC 168] [LNIND 2001 SC 168], 426-28 (para 6) : AIR 2001 SC 672 [LNIND 2001 SC 168] [LNIND 2001 SC 168] [LNIND 2001 SC 168]. See also State of A.P. v. Sunita Industries, (2005) 13 SCC 573, 575 (para 6). 21 Bharathidason University v. All-India Council for Technical Education, (2001) 8 SCC 676 [LNIND 2001 SC 2123] [LNIND 2001 SC 2123] [LNIND 2001 SC 2123], 688-89 (para 14). 22 Indian Charge Chrome Ltd. v. Union of India, (2003) 2 SCC 533 [LNIND 2002 SC 815] [LNIND 2002 SC 815] [LNIND 2002 SC 815], 556 (para 27) : AIR 2003 SC 953 [LNIND 2002 SC 815] [LNIND 2002 SC 815] [LNIND 2002 SC 815]. 23 S. Samuel, M.D. Harrisons Malayam v. Union of India, (2004) 1 SCC 256, 269-70 (para 26) : AIR 2004 SC 218. 24 Ajay Gandhi v. B. Singh, (2004) 2 SCC 120 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11], 128 (para 19) : AIR 2004 SC 1391 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11].

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25 Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300 [LNIND 2005 SC 912] [LNIND 2005 SC 912] [LNIND 2005 SC 912], 306, 07 (para 9). 26 Union of India v. C. Dinakar, (2004) 6 SCC 118 [LNIND 2004 SC 522] [LNIND 2004 SC 522] [LNIND 2004 SC 522], 124 (para 17) : AIR 2004 SC 2498 [LNIND 2004 SC 522] [LNIND 2004 SC 522] [LNIND 2004 SC 522]. 27 (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 346 (para 60). 28 Rai Vimal Krishna v. State of Bihar, (2003) 6 SCC 401 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545], 409 (para 21) : AIR 2003 SC 2676 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545]. 29 Kerala Sansthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 337, 340 (paras 15, 17, 26 and 28). See also Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 488 (para 104). 30 Kerala Sansthana Chethu Tozahilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 337, 340 (paras 16 and 27). 31 (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 340-342, 344 (paras 29-36 and 46). 32 (2005) 5 SCC 598 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498], 622 (para 57) : AIR 2005 SC 2821 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498]. 33 (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 488 (para 104). 34 (2004) 8 SCC 524 [LNIND 2004 SC 852] [LNIND 2004 SC 852] [LNIND 2004 SC 852], 547 (para 63) : AIR 2004 SC 4236 [LNIND 2004 SC 852] [LNIND 2004 SC 852] [LNIND 2004 SC 852]. 35 (2003) 7 SCC 1 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625] (para 4.1) : AIR 2003 SC 3078 [LNIND 2003 SC 625] [LNIND 2003 SC 625] [LNIND 2003 SC 625]. 36 (2005) 12 SCC 77 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681], 103 (para 66) : AIR 2005 SC 3401 [LNIND 2005 SC 681] [LNIND 2005 SC 681] [LNIND 2005 SC 681]. 37 1993 Supp (3) SCC 621, 626 (para 10) : AIR 1993 SC 2123 [LNIND 1993 SC 365] [LNIND 1993 SC 365] [LNIND 1993 SC 365]. 38 (1973) 4 SCC 225 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154] : AIR 1973 SC 1461 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154]. 39 Kerala Sansthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327 [LNIND 2006 SC 214] [LNIND 2006 SC 214] [LNIND 2006 SC 214], 342 (para 36). 40 1993 Supp (4) SCC 536, 558 (para 31) : AIR 1993 SC 1048 [LNIND 1992 SC 758] [LNIND 1992 SC 758] [LNIND 1992 SC 758]. 41 (1952) AC 427, 450. 42 Customs & Excise Commrs v. Cure & Deeley, (1961) 3 All ER 641; Jain, Cases, Chapter IV, Sec. B(V), 249. 43 Customs & Excise Commrs. v. Cure & Deeley, (1961) 3 All ER 641. 44 (1961) 3 All ER at 367. 45 De Smith, Const. & Adm. Law, 364 (1985). Also, A.W. Bradley's comment on the case in (1962) Camb LJ, 1. 46 Jayantilal v. Union of India, AIR 1970 Guj 108 [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103]. 47 The section authorised the Government to make rules "as appear to it necessary or expedient for securing the defence of India and civil defence... for maintaining supplies and services essential to the life of the community." 48 But see, Indian Express Newspapers (Bombay) Ltd. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]; for comments on this case, see Jain, Cases, 214, where the Supreme Court has stated that the rule-making power even when couched in discretionary terms is "not unrestricted". 49 Infra, Chapter XIX. 50 Wade suggests that subordinate legislation can be so challenged : Adm. Law, 871 (1988). 51 (1969) 2 All ER 1039; Jain, Cases, Chapter IV, Sec. B (iii), 231; (1969) 2 All ER 1039.

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52 A.G. For Canada v. Hallet & Carey Ltd., [1952] AC 427 at 444. 53 Mceldowney v. Forde, (1969) 2 All ER 1039. 54 (2000) 5 SCC 451 [LNIND 2000 SC 835] [LNIND 2000 SC 835] [LNIND 2000 SC 835] (paras 15 and 16) : AIR 2000 SC 2143 [LNIND 2000 SC 835] [LNIND 2000 SC 835] [LNIND 2000 SC 835]. To the same effect : Sri Ganganagar Urban Co-operative Bank Ltd. v. Prescribed Authority, (1997) 6 SCC 29 [LNIND 1997 SC 787] [LNIND 1997 SC 787] [LNIND 1997 SC 787], 30 (paras 5 and 6) : AIR 1997 SC 2687 [LNIND 1997 SC 787] [LNIND 1997 SC 787] [LNIND 1997 SC 787]. 55 H.C. Suman v. Rehabilitation Ministry Employees Co-op. House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421] : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 56 AIR 1991 SC 526, 529 : 1991 Supp (1) SCC 1. 57 AIR 1989 SC 1795 : (1989) 3 SCC 610 : 1989 (2) LLJ 476 [LNIND 1989 SC 370] [LNIND 1989 SC 370] [LNIND 1989 SC 370]. 58 State of U.P. v. Renusagar Power Co., AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]at 1761 : (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619]; Shri Sitaram Sugar Co. Ltd. v. Union of India, AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: (1990) 3 SCC 223. 59 Infra, Chapters XVII-XIX. 60 AIR 1977 SC 1361 [LNIND 1977 SC 214] [LNIND 1977 SC 214] [LNIND 1977 SC 214]: (1977) 2 SCC 592. 61 On Art. 356, see, Jain, Indian Constitutional Law, 374-76. 62 (2001) 10 SCC 401 [LNIND 2001 SC 2549] [LNIND 2001 SC 2549] [LNIND 2001 SC 2549], 417-18 (para 21) : AIR 2002 SC 77 [LNIND 2001 SC 2549] [LNIND 2001 SC 2549] [LNIND 2001 SC 2549], holding judgments in State of A.P. v. Sadanandam, 1989 Supp (1) SCC 574 : AIR 1989 SC 2060 [LNIND 1989 SC 714] [LNIND 1989 SC 714] [LNIND 1989 SC 714]and Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262 [LNIND 2000 SC 604] [LNIND 2000 SC 604] [LNIND 2000 SC 604] : AIR 2000 SC 1729 [LNIND 2000 SC 604] [LNIND 2000 SC 604] [LNIND 2000 SC 604] not sustainable. 63 Legal Aid and Advice Centre v. State of T.N., (1996) 7 SCC 137 (para 2). 64 (1997) 1 SCC 301, paras 31 and 34 : AIR 1997 SC 568 [LNIND 1996 SC 2173] [LNIND 1996 SC 2173] [LNIND 1996 SC 2173]. 65 Pune Municipal Corporation v. Promoters and Builders Association, (2004) 10 SCC 796 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615], 799-800 (para 5) : AIR 2004 SC 3502 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615]. See also U.O.I. v. Cynamide India Ltd., (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] (paras 5 of 27); H.S.S.K Nijami v. U.O.I., (1990) 4 SCC 516 [LNIND 1990 SC 439] [LNIND 1990 SC 439] [LNIND 1990 SC 439] : AIR 1990 SC 2128 [LNIND 1990 SC 439] [LNIND 1990 SC 439] [LNIND 1990 SC 439]and Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324] : 2003 SCC (L&S) 507 : AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324]. 66 Pune Municipal Corporation v. Promoters and Builders Association, (2004) 10 SCC 796 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615], 799-800 (para 5) : AIR 2004 SC 3502 [LNIND 2004 SC 615] [LNIND 2004 SC 615] [LNIND 2004 SC 615]. 67 (1898) 2 QB 91; Jain, Cases, Chapter IV, Sec. B (iii), 207. 68 See, Alan Wharam, Judicial Control of Delegated Legislation: The Test of Reasonableness, 36 Mod LR 611 (1973). 69 Mixnam Properties Ltd. v. Chertsey U.D.C., (1964) (1) QB 214. Also see, infra. 70 As cited in Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 542 (para 74) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 71 Sparks v. Edward Ash Ltd., (1943) 1 KB 223; Taylor v. Brighton Borough Council, (1947) 1 KB 736, 748-9. 72 In this case, some conditions imposed by the authority were invalidated as being unreasonable. 73 (1969) 2 All ER 1039. Also, Jain, Cases, Chapter IV, Sec. B (iii), 231. 74 Foulkes, Introduction to Adm. Law, 96 (IV Ed.). Also, Maccormick, Delegated Legislation and Civil Liberty, 86 L.Q.R. 171 (1970); Wade, Legal Control of Govt., 102-3. 75 Custom & Excise Commr. v. Cure & Deeley, (1961) 3 All ER 641.

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76 Yardley, A Source Book of English Administrative Law, 52-3 (1970). Also, Alan Wharam, supra, and comment by Bradley in (1962) Camb LJ 1. 77 T.N. Kambati v. State of A.P., AIR 1982 AP 431 [LNIND 1982 AP 15] [LNIND 1982 AP 15] [LNIND 1982 AP 15]. 78 State of Mysore v. Malick Hashim & Co., (1973) 31 STC 358 : AIR 1973 SC 1449 : (1974) 3 SCC 251. In 1968, in Municipal Corp. of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395]: 1968 (3) SCR 251, Hidayatullah, J. characterised the Kruse v. Johnson rule as "universally accepted and applied in India and elsewhere." 79 Maharashtra S.B.O.S. & H.S. Education v. Paritosh, AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]: (1984) 4 SCC 27; Jain, Cases, Chapter IV, Sec. B (i), 161; Also see, B.S. Yadav v. State of Haryana, AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]: 1981 (1) LLJ 280 : 1980 Supp SCC 524, where the Supreme Court came very close to saying that unreasonable rules would be ultra vires. In Natraj Construction Co. v. State of A.P., AIR 1984 AP 59 [LNIND 1983 AP 54] [LNIND 1983 AP 54] [LNIND 1983 AP 54], 66, the High Court has suggested that regulations made under statutory power can only be held invalid if inconsistent with the statute but cannot be challenged on the ground of unreasonableness. According to the court: "Reasonableness of the regulations cannot be the subject-matter of judicial determination as they are framed in exercise of legislative power". This proposition is not correct in view of what has been said here. 80 The Supreme Court referred to Slattery v. Naylor, (1888) 13 AC 446, a Privy Council case. 81 For a fuller discussion on Art. 14, see, Jain, Indian Constitutional Law 471-497 Also, infra, See under heading : Need for safeguard, Chapter XVIII . 82 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. Also, Jain, Cases, Chapter IV, Sec. B (iii), 211. 83 T.R. Sundaresan v. Director Gen., Civil Aviation., New Delhi, AIR 1985 Ker 59 84 AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]; Jain, Cases, Chapter IV, Sec. B (iii), 223. Also see, Jain, The Evolving Indian Administrative Law, 38. 85 See, infra, under Public Enterprises. 86 Haribans Misra v. Railway Board, (1989) 2 SCC 84 [LNIND 1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12] : AIR 1989 SC 696 [LNIND 1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12]: 1989 (2) LLJ 260. 87 Indravadan v. State of Gujarat, AIR 1986 SC 1035 [LNIND 1986 SC 89] [LNIND 1986 SC 89] [LNIND 1986 SC 89]: 1986 (2) LLJ 166 : 1986 Supp SCC 254 [LNIND 1986 SC 89] [LNIND 1986 SC 89] [LNIND 1986 SC 89]. 88 Central Inland Water Transport Corpn. Ltd. v. Brojo Nath, AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: 1986 (2) LLJ 171 : (1986) 3 SCC 156 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]; Jain, Cases, Chapter IV. Also, O.P. Bhandari v. Indian Tourism Development Corp. Ltd., AIR 1978 SC 111 : (1986) 4 SCC 337; M.K. Agarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286 : 1987 Supp SCC 643; Delhi Transport Corp. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395; Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263 [LNIND 1985 SC 196] [LNIND 1985 SC 196] [LNIND 1985 SC 196]: 1985 Supp SCC 72; Nidmarti v. State of Maharashtra, (1986) 2 SCC 534 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111] : AIR 1986 SC 1362 [LNIND 1986 SC 111] [LNIND 1986 SC 111] [LNIND 1986 SC 111]; Shankar Mukherjee v. Union of India, AIR 1990 SC 532 [LNIND 1989 SC 570] [LNIND 1989 SC 570] [LNIND 1989 SC 570]: 1990 Supp SCC 668, and also, infra, Chapter IX, 'Natural Justice'. 89 Senior Supdt. of Police v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318; Jain, Cases, 432. 90 State of Maharashtra v. Chandrabhanu, AIR 1983 SC 803 [LNIND 1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165]: (1983) 3 SCC 387 : 1983 (2) LLJ 256 [LNIND 1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165]. 91 Indian Express Newspapers (Bom.) P. Ltd. v. AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. For comments on this case, see, Jain, Cases, 214. 92 Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152] : AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]; Jain, Cases, 19; supra, Chapter III, note 24; Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. 93 Infra, Chapter XVIII; Jain, Cases, Chapter XV; See, supra, notes 3-6 for examples of unreasonableness under Art. 19(1)(g). In Minerva Minerva Talkies, Banglore v. State of Kerala, AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1]: 1988 Supp SCC 176, Rule 41a was held valid against a challenge under Art. 19(l)(g). Also see, Delhi Cloth Gen.

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Mills Co. Ltd., v. India, AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175]: (1983) 4 SCC 166; Jain, Cases, Chapter IV, Sec. B (iii), 216. 94 Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 543 (para 76) : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 95 See, Chester v. Bateson, (1920) 1 KB 829; R.&W. Paul Ltd. v. Wheat Commission, (1937) AC 139. 96 Customs & Excise Commr. v. Cure & Deeley, (1961) 3 All ER 641. 97 [1983] 1 AC 1, 14. 98 Infra, under Legislative Control, Chapter VI. 99 [1922] KB 897. 1 Bimal Chandra Banerjee v. State of M.P., AIR 1971 SC 517 [LNIND 1970 SC 322] [LNIND 1970 SC 322] [LNIND 1970 SC 322]: (1970) 2 SCC 467. 2 Shardul Kumar v. Ahmedabad Urban Development Authority, AIR 1984 Guj 60. 3 D.K. Trivedi & Sons v. State of Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50], 1345 : 1986 Supp SCC 20; Jain, Cases, Chapter IV, Sec. B (IV), Also see, Ambalal v. State of Gujarat, AIR 1986 SC 1620 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1989 Supp (2) SCC 362. 4 Jain, Indian Constitutional Law, 563-65 (1987). 5 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 41); West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA). Jain, Cases, Chapter IV, Sec. B(ii), 198. 6 Bakul Cashew Co. v. S.T.O., Quilon, AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]at 2243 : (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]. 7 Cannanore Spg. & Wvg. Mills v. Customs Collector, AIR 1970 SC 1950 [LNIND 1969 SC 403] [LNIND 1969 SC 403] [LNIND 1969 SC 403]: (1969) 3 SCC 112; Dr. Indramani Pyarelal Gupta v. W.R. Nathu, AIR 1963 SC 274 [LNIND 1962 SC 159] [LNIND 1962 SC 159] [LNIND 1962 SC 159]: 1963 (1) SCR 721; Modifood Products v. Commr. of Sales Tax, AIR 1965 All 35; India Sugar Refineries v. State of Mysore, AIR 1960 Mys. 326; Shivdev Singh v. State of Punjab, AIR 1959 Punj. 453; Sri Vijaya Lakshmi Rice Mills v. State of Andhra Pradesh, AIR 1976 SC 1471 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114]at 1473 : (1976) 3 SCC 37 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114]; Phulwasi Devi v. Union of India, AIR 1977 Pat 32; Bangalore University v. St. John's Medical College, AIR 1980 Kant 142. In Chittoor v. Associated Transport Madras (P) Ltd., AIR 1980 SC 1872 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370]: (1980) 4 SCC 597, the Court ruled that the statutory provision in question did not confer on the government power to make retrospective rules. Retrospective subordinate legislation taking away vested rights, held unlawful and unjust, Bejgam Veeranna Venkata Narasimloo v. State of A.P., 1997 (7) Scale 146 : 1998 (1) SLT 199. See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 44), West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA); so would be the amendment in rules given retrospective effect, affecting vested right of an employee, U.O.I. v. Parmanand, (1996) 10 SCC 434, 435 (para 3). See also Mahabir Vegetable Oils (P.) Ltd. v. State of Haryana, (2006) 3 SCC 620 [LNIND 2006 SC 182] [LNIND 2006 SC 182] [LNIND 2006 SC 182], 633 (para 44); West v. Gwyanne, (1911) 2 Ch 1 : 104 LT 759 (CA); notifications issued retrospectively reducing pension, held unreasonable and arbitrary and violative of Article 14, Chairman, Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623 [LNIND 1997 SC 1001] [LNIND 1997 SC 1001] [LNIND 1997 SC 1001], paras 26 and 34 : AIR 1997 SC 3828 [LNIND 1997 SC 1001] [LNIND 1997 SC 1001] [LNIND 1997 SC 1001]. 8 Many statutes do confer power to make rules with retrospective effect. Thus, S. 46(3) of the Gift Tax Act, 1958 runs as follows : The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date of commencement of this Act. To the same effect was S. 85(2) of the Estate Duty Act, 1953. Parliament passed the Central Duties of Excise (Retrospective Exemption) Act, 1986 so as to validate certain notifications issued by the Central Government with retrospective effect under the Central Excise Rules, 1944 to vary duties of excise fixed by the Excise Tariff Act, 1985. 9 Income Tax Officer, Alleppey v. M.C. Ponnoose, AIR 1970 SC 385 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC 226]: (1969) 2 SCC 351; Jain,.Cases, Chapter IV, Sec. B (ii), 196. also, Woodcrafts Enterprises v. S.T.O., (1972) 29 STC 315 (Delhi). 10 Bakul Cashew Co. v. S.T.O., Quilon, AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]at 2243 : (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC 72]. 11 (1997) 9 SCC 763, paras 6 and 7 : (1998) 108 STC 1, following CST v. Agra Belting Works, (1987) 3 SCC 140 [LNIND

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1987 SC 443] [LNIND 1987 SC 443] [LNIND 1987 SC 443] : (1987) 3 SCR 93 [LNIND 1987 SC 443] [LNIND 1987 SC 443] [LNIND 1987 SC 443] and STO v. Dealing Dairy Products, 1994 Supp (2) SCC 639 : AIR 1994 SC 840. 12 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; Jain, Cases, Chapter IV, 198. 13 Gurcharan Singh v. State, AIR 1974 P&H 223. 14 I.T. Commr Lucknow v. Bazpur Coop. Sugar Factory, AIR 1988 SC 1263 [LNIND 1988 SC 292] [LNIND 1988 SC 292] [LNIND 1988 SC 292]: (1988) 3 SCC 553. 15 AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: 1982 (1) LLJ 110 : (1982) 1 SCC 205 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 16 (1998) 8 SCC 469 (para 3). 17 (1998) 9 SCC 439 (para 3) 18 Mathra Pd. & Sons v. State of Punjab, (1962) 13 STC 180 [LNIND 1961 SC 378] [LNIND 1961 SC 378] [LNIND 1961 SC 378] (SC) : AIR 1962 SC 745 [LNIND 1961 SC 378] [LNIND 1961 SC 378] [LNIND 1961 SC 378]; Deputry Commr. v. Saravanan, (1980) 45 STC 94 (Mad). 19 U.P. Raghavendra Acharya v. State of Karnataka, (2006) 9 SCC 630 [LNIND 2006 SC 411] [LNIND 2006 SC 411] [LNIND 2006 SC 411], 639-40 (para 23). 20 Ashok Lanka v. Rishi Dikshit, (2006) 9 SCC 90 [LNIND 2006 SC 289] [LNIND 2006 SC 289] [LNIND 2006 SC 289], 122 (para 67). 21 See, infra, hapter VI . Also M.P. Jain, Parliamentary Control of Delegated Legislation in India, 1964 Public Law, 33, 56. 22 T.K Musaliar v. M. V. Pooti, AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: 1955 (2) SCR 1196. 23 H.C. Suman v. Rehabilitation Ministry Employees Coop. House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421] : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 24 H.C. Suman v. Rehabilitation Ministry Employees Co-operative House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], 499 : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]. 25 B.S. Vadera v. Union of India, AIR 1969 SC 118 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90]: 1970 (1) LLJ 499. See also Bharkta Ramegowda v. State of Karnataka, (1997) 2 SCC 661 [LNIND 1997 SC 107] [LNIND 1997 SC 107] [LNIND 1997 SC 107], 663 (para 6) : AIR 1997 SC 1038 [LNIND 1997 SC 107] [LNIND 1997 SC 107] [LNIND 1997 SC 107]; B.S. Vadera v. Union of India, AIR 1969 SC 118 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90]: (1968) 3 SCR 575; Chief Secy. to Govt. of A.P. v. V.J. Cornelius, (1981) 2 SCC 347 [LNIND 1981 SC 90] [LNIND 1981 SC 90] [LNIND 1981 SC 90] : AIR 1981 SC 1099 [LNIND 1981 SC 90] [LNIND 1981 SC 90] [LNIND 1981 SC 90]; P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475] : AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475]; Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; R.L. Bansal v. Union of India, 1992 Supp (2) SCC 318 [LNIND 1992 SC 395] [LNIND 1992 SC 395] : AIR 1993 SC 978 [LNIND 1992 SC 395] [LNIND 1992 SC 395] [LNIND 1992 SC 395]; V.K. Sood v. Secy. Civil Aviation, 1993 Supp (3) SCC 9 : AIR 1993 SC 2295 [LNIND 1993 SC 469] [LNIND 1993 SC 469] [LNIND 1993 SC 469]. 26 State of A.P. v. D. Janardhana Rao, AIR 1977 SC 451 [LNIND 1976 SC 331] [LNIND 1976 SC 331] [LNIND 1976 SC 331]: (1976) 4 SCC 226. 27 AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]: 1980 Supp SCC 524 : 1981 (1) LLJ 280 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437]. For a comment on the case see S.N. Jain, (1981) JILI 102. 28 Art. 309, it has been held, does not authorise making of a rule giving immunity to a government servant from prosecution for an offence after the lapse of a particular period. This matter does not fall within the phrase conditions of service for which rules can be made under Art. 309: State of Punjab v. Kailash Nath, AIR 1989 SC 558 : (1989) 1 SCC 321 : 1989 (2) LLJ 209. 29 Infra, Chapter VIII. 30 (1998) 4 SCC 219 [LNIND 1998 SC 380] [LNIND 1998 SC 380] [LNIND 1998 SC 380] : AIR 1998 SC 1782 [LNIND 1998 SC 380] [LNIND 1998 SC 380] [LNIND 1998 SC 380]. 31 Accountant-General v. S. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93; Jain, Cases, 201.

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32 State of Gujarat v. Raman Lal Keshav Lal Soni, (1983) 2 SCC 33 [LNIND 1983 SC 36] [LNIND 1983 SC 36] [LNIND 1983 SC 36] : AIR 1984 SC 161 [LNIND 1983 SC 36] [LNIND 1983 SC 36] [LNIND 1983 SC 36]: 1983 (1) LLJ 284. A rule provided for counting of military service, in case of appointment of an ex-service man, for the purpose of giving seniority to him in service. After appointment of several servicemen, the Government changed the rule with retrospective effect. The Supreme Court ruled that the Government could not take away the accrued right of the persons concerned by changing the rule retrospectively; K.C. Arora v. State of Haryana, AIR 1987 SC 1858 [LNIND 1984 SC 379] [LNIND 1984 SC 379] [LNIND 1984 SC 379]: (1984) 3 SCC 281 : 1984 (2) LLJ 362 [LNIND 1984 SC 127] [LNIND 1984 SC 127] [LNIND 1984 SC 127]; Jain, Cases, 203. 33 T.R. Kapur v. State of Haryana, AIR 1987 SC 415 [LNIND 1986 SC 522] [LNIND 1986 SC 522] [LNIND 1986 SC 522]: 1986 Supp SCC 584 : 1987 (2) LLJ 25 [LNIND 1986 SC 522] [LNIND 1986 SC 522] [LNIND 1986 SC 522]. See also O.P. Lather v. Satish Kumar Kakkar, (2001) 3 SCC 110 [LNIND 2001 SC 296] [LNIND 2001 SC 296] [LNIND 2001 SC 296], 116 (para 13). 34 P.D. Aggarwal v. State of U.P., (1987) 3 SCC 622 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475] : AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475]. 35 (1998) 3 SCC 381 [LNIND 1998 SC 335] [LNIND 1998 SC 335] [LNIND 1998 SC 335], para 6 : AIR 1998 SC 1289 [LNIND 1998 SC 335] [LNIND 1998 SC 335] [LNIND 1998 SC 335]. 36 K. Narayani Hegde v. State of Karnataka, (2000) 9 SCC 175, 176-78 (paras 7 and 8). 37 State of Rajasthan v. Khemka Cement Pvt. Ltd., JT 1999 (5) SC 170 : (2000) 9 SCC 382. 38 R.S. Ajara v. State of Gujarat, (1997) 3 SCC 639 [LNINDORD 1997 SC 132] [LNINDORD 1997 SC 132] [LNINDORD 1997 SC 132], 653-54 (para 16) : JT 1997 (3) SC 573 [LNIND 1997 SC 377] [LNIND 1997 SC 377] [LNIND 1997 SC 377]. 39 See, infra, Chapter VI, for discussion on these procedural norms. 40 Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970 41 Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 [LNIND 1979 SC 446] [LNIND 1979 SC 446] [LNIND 1979 SC 446], 306 : (1980) 1 SCC 403 [LNIND 1979 SC 446] [LNIND 1979 SC 446] [LNIND 1979 SC 446]; Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC 196. 42 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970; Jain, Cases, 300. Also, see, next Chapter. 43 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]at 899 : 1965 (1) SCR 970 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]. Also see, Jain, Cases, Chapter V Sec. C (i), 300; infra, Chapter XIX . 44 Also see, State of U.P. v. Manbodhan Lal, AIR 1957 SC 912 [LNIND 1957 SC 93] [LNIND 1957 SC 93] [LNIND 1957 SC 93]: 1958 (2) LLJ 273, where the Supreme Court held Art. 320(3)(c) to be directory even though the word 'shall' is used therein. Also see, Owners & Parties Interested in M.V. Valipero v. Fernandeo Lopez, AIR 1989 SC 2206 [LNIND 1989 SC 453] [LNIND 1989 SC 453] [LNIND 1989 SC 453]: (1989) 4 SCC 671; Jain, Cases, Chapter IV, Sec. C. 260. 45 AIR 1963 SC 134 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: 1963 (1) Crlj 88 : 1963 (1) LLJ 303 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]. See, Jain, Cases, Chapter V, Sec. C (i), 289. 46 Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56]: 1961 (2) LLJ 140 : 1961 (2) Crlj 12. Also see, Kalipada v. Union of India, AIR 1963 SC 134 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: (1963) 2 SCR 904 : 1963 (1) Crlj 80 : 1963 (1) LLJ 303 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]. 47 State of Bihar v. B.L. Agarwalla, AIR 1966 Pat 411. 48 Infra, Chapter VI, under Consultation of Interests. 49 Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 567; also, infra, Chapter VI. 50 Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], 899 : (1965) 1 SCR 970 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]. 51 Lachmi Narain v. Union of India, AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. See also Mohan Wahi v. CIT, (2001) 4 SCC 362 [LNIND 2001 SC 861] [LNIND 2001 SC 861] [LNIND 2001 SC 861], 373 (para 19); Surinder Nath Kapoor v. U.O.I., 1988 Supp SCC 626 : AIR 1988 SC 1777 [LNIND 1988 SC 360] [LNIND 1988 SC 360] [LNIND 1988 SC 360]. 52 Infra, Chapter VI, under Legislative Control. 53 See, Govindlal v. Agricultural Produce Markets Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300]

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[LNIND 1975 SC 300]: 1975 Crlj 1993 : (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]; Jain, Cases, Chapter V, Sec D, 322. Also see, Chapter VI, infra, under 'Publication'. 54 Union of India v. Shree Ganesh Steel Rolling Mills Ltd., (1996) 8 SCC 347, 349 (para 8). 55 See, infra, under Exclusion of Judicial Review and Chapter VI. 56 See, B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62] : AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]; infra, Chapter VI; Jain, Cases, Chapter V. 57 Lord Diplock in Hoffman-La Roche v. Secretary of State for Trade and Industry, [1974] 2 ALL ER 1128; Jain, Cases, Chapter XI, 936. 1975 AC 295. 58 Deepak Sibal v. Punjab University, AIR 1989 SC 903 [LNIND 1989 SC 91] [LNIND 1989 SC 91] [LNIND 1989 SC 91]: (1989) 2 SCC 145. 59 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], at 552 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]; Jain, Cases, Chapter IV, Sec. B(viii), 211. 60 K.N. Raghavan v. Habeeb Mohammed, (2002) 10 SCC 180, 182 (para 7), approving by implication Issac Ninan v. State of Kerala, (1995) 2 KLT 555 [LNIND 1995 KER 240] [LNIND 1995 KER 240] [LNIND 1995 KER 240]. 61 For an example of this see, Govindlal, v. Agricultural Produce Markets Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: (1975) 2 SCC 482 : 1975 Crlj 1993, in which conviction of the appellant for breach of a rule was quashed as the rule was held to be non-enforceable due to lack of due publication: see, infra, Chapter VI, 150 et seq. 62 Infra, under Judicial Control. 63 (2001) 5 SCC 212, para 19 : AIR 2001 SC 1493. 64 State of A.P. v. Civil Supplies Services' Association, (2000) 9 SCC 299, 300 (para 2). 65 E.T. Sunap v. C.A.N. S.S. Employees Association, (2004) 8 SCC 683 [LNIND 2004 SC 1070] [LNIND 2004 SC 1070] [LNIND 2004 SC 1070]. 66 High Court of Judicature for Rajasthan v. P.P. Singh, (2003) 4 SCC 239 [LNIND 2003 SC 100] [LNIND 2003 SC 100] [LNIND 2003 SC 100], 250 (para 16) : AIR 2003 SC 1029 [LNIND 2003 SC 100] [LNIND 2003 SC 100] [LNIND 2003 SC 100]. 67 R.P. Bhardwaj v. Union of India, (2005) 10 SCC 244, 248 (para 8). 68 V.M. Kurian v. State of Kerala, (2001) 4 SCC 215 [LNIND 2001 SC 827] [LNIND 2001 SC 827] [LNIND 2001 SC 827], 223 (para 11) : AIR 2001 SC 1409 [LNIND 2001 SC 827] [LNIND 2001 SC 827] [LNIND 2001 SC 827]. 69 Infra, Chapter VI, for 'laying' before Parliament. 70 Hoffman-La Roche v. Secretary of State for Trade and Industry, (1974) 2 All ER 1128. Also, Laker Airways v. Dept. of Trade, [1977] 2 All ER 182. 71 Hoffman-La Rache v. Secretary of State for Trade and Industry, (1974) 2 All ER at 1153. 72 R. v. Home Secretary, ex p. Brind, [1990] 1 All ER 469; Jain, Cases, Chapter V, 282. 73 Kerala State Electricity Board v. Indian Aluminium Co., AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], 1046 : (1976) 1 SCC 466 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]; R.T.O. Chittoor v. Associated Transport Madras (P) Ltd., AIR 1980 SC 1872 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370]: (1980) 4 SCC 597. 74 Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601. 75 Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 76 Supra, Chapter IV; see, Garewal, v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792; Delhi Cloth and General Mills Co. Ltd. v. Union of India, AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175], 938 (para 32) : (1983) 4 SCC 166 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175]. 77 Infra, Chapter VI.

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78 See under heading : Doctrine of ultra vires, Chapter V; infra, Chapter VI. 79 See also, infra, under Judicial Control. 80 (1894) AC 347. 81 Schwartz, Administrative Finality in England, 26 Can. B.R., 1072 (1948); Allen, Law and Orders, 258 (1965). 82 (1931) AC 494. 83 Schwartz, Administrative Finality in England, 26 Can. B.R. 1072 (1948); Allen, Law and Orders, 228 (1965); C.M.P. Report, 40. Also, Mceldowney v. Forde, (1969) 2 All ER 1039. 84 See, for example, R. Subba Rao v. C.I.I., AIR 1956 SC 604 [LNIND 1956 SC 49] [LNIND 1956 SC 49] [LNIND 1956 SC 49]: 1956 SCR 577; Orient Weaving Mills v. Union of India, AIR 1963 SC 98 [LNIND 1962 SC 93] [LNIND 1962 SC 93] [LNIND 1962 SC 93]: 1962 Supp (3) SCR 481. 85 Chief Commissioner of Ajmer v. Radhey Shyam, AIR 1957 SC 304 [LNIND 1956 SC 97] [LNIND 1956 SC 97] [LNIND 1956 SC 97]: 1957 SCR 68. 86 AIR 1965 SC 1585 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964 SC 254]: 1965 (1) SCR 601. 87 Per Shah and Sikri, JJ., State of Kerala v. K.M. Charia Abdulla and Co., AIR 1965 SC 1585 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964 SC 254]: (1965) 1 SCR 601. Generally, the High Courts have not followed the Herschell view, see, for example, State v. Kunja Behari, AIR 1954 Pat 371; State v. V.K. Jain, AIR 1958 MP 162; K. Rama Rao v. R.A. Mundkur, AIR 1960 Mys 313. 88 General Officer, Commanding-in-Chief v. Subhash Chandra, AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621]: (1988) 2 SCC 351 : 1988 (2) LLJ 345 [LNIND 1988 SC 146] [LNIND 1988 SC 146] [LNIND 1988 SC 146]; See also Supreme Court Employees' Association v. U.O.I., (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351] : AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC 351]; Kunj Behari Lal Butail v. State of H.P., (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], 44 (para 8) : AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344]. Jain, Cases, Chapter IV, 265. 89 AIR 1989 SC 1829 [LNIND 1989 SC 231] [LNIND 1989 SC 231] [LNIND 1989 SC 231]: 1989 Supp (1) SCC 541; Jain, Cases, Chapter IV, Sec. B (i), 179. 90 Committee on Ministers Powers, Report, 40-41, 61-62; see, supra, Chapter IV. 91 Trust Mai Lachmi Sialkot Bradari v. Chairman, Amritsar Improvement Trust, AIR 1963 SC 976 [LNIND 1962 SC 144] [LNIND 1962 SC 144] [LNIND 1962 SC 144]: 1963 (1) SCR 242; Hapur Municipality v. Raghuvendra Kirpal, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]at 696 : 1966 (1) SCR 950. 92 Infra, under Judicial Control. 93 Raza Buland Sugar Co., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970; Jain, Cases, 300. 94 Infra, Chapter VI, under Consultation; Jain, Cases, Chapter V, Sec. C (ii). 95 S. 135(3) was the 'conclusive evidence' clause in the relevant statute. 96 Azimulla v. Suraj Kumar Singh, AIR 1957 All 307 [LNIND 1957 ALL 6] [LNIND 1957 ALL 6] [LNIND 1957 ALL 6]; Municipal Board, Hapur v. Raghavendra, AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232]; Vallabhdas v. M.C. Akola, AIR 1967 SC 133 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35]: 1961 (3) SCR 618; Beni Prasad v. Jabalpur Improvement Trust, AIR 1970 MP 191. 97 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399. Also Jain, Cases, Ch.IV, Sec. D (i), 263. For detailed comments on the case by the Author, see, I.L.I., A.S.I.L.,77-80 (1970). 98 Berar Swadesi Vanaspati v. Shegaon Municipality, AIR 1962 SC 420 [LNIND 1957 SC 18] [LNIND 1957 SC 18] [LNIND 1957 SC 18]: 1962 (1) SCR 596. Also see, B.K Srinivasan v. State of Karnataka, AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]: (1987) 1 SCC 658, Jain, Cases, 327. In this case, the Supreme Court gave a liberal connotation to the 'conclusive evidence' by calling it metaphorically as the 'Ganga' clause. A dip in the Ganga washes away all sins. 99 AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 1 SCC 875. 100 Maunath Bhanjan Municipality v. S.C. Mills, AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60]: (1977) 1 SCC 875. 1 Supra, also, infra, Chapter VI.

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2 See, infra, under Judicial Control. 3 Infra, next Chapter. 4 Raza Buland Sugar Co., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: (1965) 1 SCR 970. Also see, infra, next Chapter. 5 Infra, next Chapter under Consultation. 6 CMP Report, 40-41, 61-62. 7 Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380 : 1954 Crlj 1322; Jain, Cases, 56. 8 A.V. Nachane v. Union of India, AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]: (1982) 1 SCC 205 : 1982 (1) LLJ 110 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468]. 9 See, infra, Chapter VI, under Legislative Control. 10 Dharangadhra Chemical Works v. Dharangadhra Municipality, AIR 1985 SC 1729 [LNIND 1985 SC 273] [LNIND 1985 SC 273] [LNIND 1985 SC 273]: (1985) 4 SCC 92. Municipal Board v. Bharat Oil Co., (1990) 1 SCC 312 : AIR 1990 SC 548 [LNIND 1989 SC 677] [LNIND 1989 SC 677] [LNIND 1989 SC 677]. Also see, Jain, Cases, Chapter IV, Sec. B (i), 181. 11 For an example of repugnancy between the rules made by the same body. 12 Proprietary Articles Trade Associations v. A.G. of Canada, 1931 AC 310; A.G. for Australia v. Queen. 95 CLR 529; Lohia Machines v. Union of India, AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572]at 433 : (1985) 2 SCC 197 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572], Jain. Cases, Chapter III, 69. 13 Shivachandra v. State of Mysore, AIR 1965 SC 280 [LNIND 1964 SC 82] [LNIND 1964 SC 82] [LNIND 1964 SC 82]: 1967 (2) LLJ 246; Indian Express Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 14 AIR 1969 SC 895. 15 AIR 1975 SC 1487 [LNIND 1975 SC 128] [LNIND 1975 SC 128] [LNIND 1975 SC 128]: (1975) 4 SCC 86. Also see, Shyanm Lal v. State of U.P., AIR 1954 SC 369 [LNIND 1954 SC 54] [LNIND 1954 SC 54] [LNIND 1954 SC 54]. 16 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271 : 1982 Crlj 340; Jain, Cases, 251. Also see, State of Tamil Nadu v. Hind Stone, AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]: (1981) 2 SCC 205. 17 On mala fide exercise of discretionary power, see infra, Chapter XIX. 18 AIR 1988 SC 1768 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC 361]: (1988) 4 SCC 54 : 1988 Crlj 1809; Jain, Cases, Chapter IV, Sec. B (vi), 257. 19 See, note 66, Ch VI, infra. 20 Indian Express, (Bombay) v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541 : (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 21 See, Chapter VIII, infra. 22 (1996) 9 SCC 548 [LNIND 1996 SC 633] [LNIND 1996 SC 633] [LNIND 1996 SC 633], 608 (para 126) : AIR 1996 SC 1765 [LNIND 1996 SC 633] [LNIND 1996 SC 633] [LNIND 1996 SC 633]. 23 See, infra, Chapter VI. 24 See, for example, Garewal, v. State of Punjab, AIR 1959 SC 512 [LNIND 1958 SC 162] [LNIND 1958 SC 162] [LNIND 1958 SC 162]: 1959 Supp (1) SCR 792. 25 Report of the Attorney-General's Committee, 90. 26 Megarry, Administrative Quasi-Legislation, 60 LQR. 125 (1944); also see, infra, Chapter VIII. 27 AIR 1975 MP 125. 28 Infra, Chapter XXII, under Promissory Estoppel. See, Bengal Iron Corp. v. Commercial Tax Officer, AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401]: 1994 Supp (1) SCC 310. Also see 'Interpretative Directions', supra, hapter VIII.

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29 U.P. Jal Nigam v. Narinder Kumar Agarwal, (1996) 8 SCC 43 [LNIND 1996 SC 234] [LNIND 1996 SC 234] [LNIND 1996 SC 234], 45 (para 3). 30 M.C. Mehta v. U.O.I., 1997 (1) Scale (SP) 1. 31 State of Punjab v. Rajeev Sarwal, (1999) 9 SCC 240 [LNIND 1999 SC 376] [LNIND 1999 SC 376] [LNIND 1999 SC 376] : 2000 (1) LLJ 122 [LNIND 1999 SC 376] [LNIND 1999 SC 376] [LNIND 1999 SC 376]. 32 1999 (7) Scale 152 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] : JT 1999 (9) SC 152 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042]: AIR 2000 SC 278 [LNIND 1999 SC 1042] [LNIND 1999 SC 1042] [LNIND 1999 SC 1042]: (2000) 1 SCC 81. 33 (1999) 7 SCC 604 [LNIND 1999 SC 856] [LNIND 1999 SC 856] [LNIND 1999 SC 856] : AIR 1999 SC 3524 [LNIND 1999 SC 856] [LNIND 1999 SC 856] [LNIND 1999 SC 856].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VI LEGISLATIVE AND OTHER CONTROLS OVER DELEGATED LEGISLATION

CHAPTER VI LEGISLATIVE AND OTHER CONTROLS OVER DELEGATED LEGISLATION 1. LEGISLATIVE CONTROL In a parliamentary democracy it is the function of the Legislature to legislate, If it seeks to delegate its legislative power to the Executive because of some reasons, it is not only the right of the Legislature, but also its obligation, as principal, to see how its agent, i.e. the Executive carries out the agency entrusted to it. Since it is the Legislature which grants legislative power to the Administration, it is primarily its responsibility to ensure the proper exercise of delegated legislative power, to supervise and control the actual exercise of this power, and ensure against the danger of its objectionable, abusive and unwarranted use by the Administration. Legislature represents public opinion. Administration may not always understand the public mind, and may, at times, ignore individual freedom in its zeal to achieve the desired goals; it may treat administrative convenience as more important than individual rights. As has already been seen, judicial control is none too effective in this area.1 Grant of power in broad language dilutes judicial control. There is also reluctance on the part of the courts to closely supervise delegated legislation. All these considerations demand that the Legislature should effectively supervise, and provide the necessary corrective to, administrative rule-making. Based on this theory, a whole system of legislative supervision over delegated legislation has come into being in India. Two significant limbs of this mechanism are: (i) laying of delegated legislation before the Legislature; and (ii) scrutiny of delegated legislation by a legislative scrutiny committee.2 (a) Memorandum on Delegation At the Central level, the first step in the chain of Parliamentary control over delegated legislation is taken at the stage of delegation by Parliament. A rule of procedure of each House of Parliament requires that a bill involving proposal for delegation of legislative power shall be3 "accompanied by a memorandum explaining such proposals and drawing attention to their scope, and stating also whether they are of exceptional or normal character."4 The rule is salutary, for the first stage of supervision arises at the stage of delegation. In practice, however, the rule does not amount to much as the memoranda accompanying bills are usually scrappy, of a routine nature and not very informative. The Lok Sabha Committee on Subordinate Legislation has emphasized that the rule is mandatory and the memorandum attached to a bill should give full purport and effect of the delegation of power to subordinate authorities, the points which may be covered in the

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rules, the particulars of subordinate authorities who are to exercise the delegated power, and the manner in which such power is to be exercised. The purpose of the memorandum is to focus the attention of the members of Parliament to the provisions of the bill involving delegation of legislative power.5 The Speaker may also refer bills containing provisions for delegation of legislative power to the committee to examine the extent of such powers sought to be delegated.6 (b) Laying Procedure The second link in the chain of Parliamentary control comes into play after the rules are made. This is achieved by the mechanism of the "laying procedure". The basic purpose of this procedure is informational. The underlying idea is that if Parliament is to exercise any control, it is necessary that the Houses of Parliament be informed of the content of the delegated legislation made by the government from time to time under various statutes. According to Garner, the object of laying procedure is to bring the legislative measures to the "potential notice" of the Members of Parliament.7 There is no general obligation on the Administration to lay the rules before the Houses of Parliament. Whether the rules made under a statute are to be laid or not before the Houses depends on the terms of each delegated statute. If the statute has a laying clause, then the relevant delegated legislation is to be laid in terms of the statute; if there is no such clause, then it is optional for the government to lay or not to lay delegated legislation. In England, the Statutory Instruments Act, 1946, has somewhat formalised and systematised the laying procedure. Three main variants of this procedure are used in statutes: (1) (2)

(3)

Simple Laying: Here the requirement simply is to lay the rules before Parliament. S. 4(1) of the Statutory Instruments Act (SIA) says that if the parent Act requires that a statutory instrument be laid before Parliament, then the instrument is to be laid before it comes into operation. Laying with annulment: Here the rules are laid in draft and can be annulled by a resolution of a House. This is known as negative laying. In this procedure, the legitimacy of delegated legislation precedes, not follows, the negative laying procedure. In this procedure the parliamentary function is ex post facto; it is negative rather than positive; it provides for disallowance rather than allowance. Laying subject to affirmation: Here the rules are laid in draft before the Houses. The rules come into operation when the Houses pass resolution affirming them.

From the point of view of parliamentary control over delegated legislation, the last variety of the laying procedure is the most effective because here it is necessary for the Houses to approve the proposed rules before they become effective. This means that there must be a discussion in the two Houses on the draft rules.8 "An act of Parliament will normally require that rules or regulations made under the Act shall be laid before both Houses of Parliament. Parliament can then keep its eye upon them and provide opportunities for criticism. Rules or regulations laid before Parliament may be attacked on any ground. The object of the system is to keep them under general political control, so that criticism in Parliament is frequently on grounds of policy. The legislation concerning 'laying' has already been explained. "Laying before Parliament is done in a number of different ways. The regulations may merely have to be laid; or they may be subject to negative resolution within forty days; or they may expire unless confirmed by affirmative resolution; or they may have to be laid in draft. Occasionally they do not have to be laid at all, because Parliament has omitted to make any provision."9 "...If the instrument has merely to be laid, or laid in draft, before Parliament, it will be delivered to the Votes and Proceedings Office of the House of Commons. No opportunity is provided by parliamentary procedure for the instrument to be discussed, but its existence will at least be brought to the notice of Members and the Minister is more likely to be questioned about it than if it is not laid before Parliament at all."10

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In India, for long, there was confusion on the question of laying. Many statutes did not contain any such provision; and the statutes mostly required laying simpliciter after the rules were made. But, now, a standard laying formula is used in practically each Central statute. This formula runs as follows: Every rule made under this Act shall be laid, as soon as may be, after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice tothe validity of anything previously done under that rule.

The above formula is now invariably incorporated in every statute enacted by the Indian Parliament. This formula requires the rules to be laid before each House as soon as possible after being made.11 The rules are to be laid before each House for 30 session days. This period is comprised in one session or in two or more successive sessions. Before the expiry of the session immediately following the session or the successive sessions aforesaid, if both Houses agree, they can make any modifications in the rules or even annul them. The rules come into force as soon as they are made and the laying procedure takes effect after that, but if any modification is made therein, or if they are annulled, by both the Houses then the rules operate in the modified form, or be of no effect, in the future. If they are annulled then they will cease to exist from the date of annulment. Any modification or annulment of the rules does not affect the validity of any previous administrative action taken under the rules as they were. Thus, the annulment or modification has prospective, and no retrospective, effect on the rules. The rules can be annulled or modified when only both Houses agree. In this formula, the initiative to move a resolution to annul or modify the rules has to be taken by the members of the House. The government is under no obligation to take any initiative. Under this formula, rules stand modified or annulled as soon as a resolution to that effect is passed by one House and is agreed to by the other House. This standardised laying formula has been evolved in India so as to do away with the varying formulae which were in use earlier resulting in varying practices which caused confusion and ambiguities in the area of Parliamentary control of delegated legislation. In some exceptional cases, the delegating statute may stipulate that the rules be laid before the Houses before they become enforceable. In such a case, the rules are laid in the draft form and become effective either automatically after the passage of the stipulated period, or, when the Houses pass resolutions affirming the rules. This is termed as laying with affirmative procedure. Such a procedure is not used frequently in India. Whether it is to be used or not depends upon the terms of the delegating Act in question. Two of the statutes where the affirmative procedure is followed are: The Salaries and Allowances of Ministers Act, 1952; and The Essential Services Maintenance Act, 1968. The Rajya Sabha Committee on Subordinate Legislation is of the opinion that the affirmative procedure would make parliamentary control more effective and meaningful. The committee recommended that it was highly desirable to follow such a procedure where the rule-making power may: (a) trespass unduly on personal rights and liberties; (b) infringe the rule of law and the rules of natural justice; (c) impose or increase taxation, fees or charges; (d) lay down a policy not clearly identifiable in the enabling Act or make a departure in policy; (e) involve considerations of special importance (e.g. powers to create new varieties of criminal offence of a serious nature).12 The Lok Sabha Committee on Subordinate legislation asked the government to examine Acts to find out which of them did not contain "laying" requirement and to incorporate the requirement in them at the earliest.13 The committee also recommended the amendment of the General Clauses Act to provide for laying of the rules, made by the Central Government under the Central statutes, before Parliament.14 Many Central statutes enacted either under the Union List or the Concurrent List of the Seventh Schedule to the Constitution confer rule-making power on the State Governments. This has raised the problem of laying of such rules. The Lok Sabha Committee has examined the question in detail.15 The committee realised the difficulty of placing such rules before Parliament because the Central Government or the minister of the department concerned has no responsibility in framing these rules and thus no purpose would be served by the Parliament discussing those rules.16 The committee felt that such rules should be laid before the State Legislature concerned. From the point of view of the legality of such laying before the State Legislature, the committee made a distinction between those Central Acts which fell under the Concurrent List and those

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which came under the Union List. As regards the former, the committee found that there could be three alternatives: (a) the State Legislature could make a provision in its rules of procedure; (b) the Speaker of the State Legislature could issue a direction to the State Committee on Subordinate Legislation to examine these rules; and (c) a provision could be made in all the Central Acts concerned requiring that the rules made by the State Government be laid before the State Legislature. The committee preferred the last alternative and noted that such a provision had been made in the Industrial Relations Bill, 1978. As regards the Acts falling in the Union List, there were legal difficulties in requiring the rules to be laid before the State Legislature as the power has been delegated to the State Government and not the Legislature. The committee, however, felt that there would be no constitutional impropriety if such rules are laid before the State Legislature and are examined by its Committee on Subordinate Legislation. For this purpose, some procedure would have to be devised in the absence of a statutory provision. There would be no constitutional inhibition if the Speaker of the State Legislature issued a direction empowering its committee to examine such rules, even if they are not laid on the table of the House. The committee was of the view that even if the rules are laid before the State Legislature, it is only the State Government and not the legislature which will have the power to modify the rules. The committee has pleaded for laying not only of rules but also other forms of delegated legislation, such as, notifications, regulations, bye-laws, etc., whether promulgated by the Central Government or by any other authority under a Central Act. For instance, the Customs Act, 1962 and the Central Excises and Salt Act, 1944 empower the Central Government to promulgate rules and notifications. The former Act provides for laying of rules and certain notifications, and the latter Act only provides for laying of rules. The committee has taken the view that all notifications under both the statutes are to be laid.17 Similarly, the committee has emphasised that the following should also be laid: (i) all orders of legislative nature issued under the Industries (Development and Regulation) Act, 1951;18 (ii) regulations issued by the University Grants Commission under the U.G.C. Act, 1956;19 and (iii) statutes, ordinances and regulations issued by the universities under the different central university statutes.20 According to the direction of the Speaker the committee may examine all legislative orders framed by the executive under the Constitution or a statute whether laid on the table of the House or not.21 In spite of laying, legislative orders are hardly discussed in the House. There seems to be only one occasion when this happened.22 In Quarry Owners' Assn. v. State of Bihar,23 the Supreme Court observed that laying before the Houses of Parliament is done in three different ways. Laying of any rule may be subject to any negative resolution within a specified period or may be subject to its confirmation. This is spoken of as negative or positive resolution respectively. The third may be mere laying before the House. Section 16(2) of the Water (Prevention and Control of Pollution) Cess Act, 1977 shows that there has to be a positive act of approval by Parliament to the issuance of the notification before it can be held that the schedule I has been amended. Merely laying down the notification before each House of Parliament, as is the case in the instant one, is not sufficient compliance with the provisions of Section 16(2).24 (c) Laying requirement: Legal Effect A laying requirement is regarded as directory when not coupled with the requirement of laying rules in draft form and approval by the House. In the latter case, the requirement of laying is regarded as mandatory because the rules cannot come into force without being laid and approved by the Houses. In a simple laying procedure, failure to lay the rules does not affect their legal validity and hence it is deemed to be directory.25 A main consideration in regarding this requirement as directory also is that if it is held mandatory, the question will arise at what precise moment do the rules become invalid for failure to lay.26 The statutes prescribing simple laying provision for the rules made thereunder do not prescribe a time-frame within which the rules are to be laid before the Houses of Parliament. The usual laying formula runs as: "The rules shall be laid before both Houses of Parliament as soon as may be".

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In case of laying procedure subject to a negative resolution, it is also regarded as directory. In this case, the rules come into effect as soon as they are made and the 'laying' procedure takes effect subsequently. If Parliament disapproves the rule, it will cease to be operative thereafter, but until then the rules remain effective. But when rules are to be laid before Parliament, and they become effective only after Parliament passes an affirmative resolution, then the procedure is to be treated as mandatory as parliamentary resolution is a condition precedent for the validity of the rules. In India also, the courts have taken a similar view.27 The question has been elaborately considered by the Supreme Court in Atlas Cycle Industries Ltd. v. State of Haryana.28 S. 3(6) of the Essential Commodities Act, 1955, lays down that any order issued under S. 3 "shall be laid before both Houses of Parliament as soon as may be after it is made." An order issued under S. 3 was not laid in the Houses and it was challenged as being ultra vires. Rejecting the argument, the Supreme Court ruled that S. 3(6) is only directory and not mandatory and that non-laying of an order before Parliament does not make it void. The use of the word 'shall' in S. 3(6) is not conclusive and decisive of the matter, it is for the court to determine the true intention of the Legislature. The two considerations for regarding a provision as directory are: (i) absence of any provision for meeting the contingency of the provision not being complied with; and (ii) serious general inconvenience and prejudice that would result to the general public if the act of government is declared invalid for non-compliance with the particular provision. The policy and object underlying 'laying' provisions is to keep supervision and control over subordinate authorities. There are various forms of laying, i.e., simple laying, laying with negative resolution and laying with affirmative resolution. S. 3(6) provides for simple laying without any 'affirmative' or 'negative' resolution. Nor does it provide that it shall be open to Parliament to approve or disapprove the order made under S. 3. The requirement of laying is not a condition precedent but a condition subsequent to the making of the order. Such a simple laying procedure is regarded only as directory and not mandatory, and non-laying of the order would not make it void. Observations made by the Court in some earlier cases29 suggesting laying procedure to be mandatory where now held to be only incidental. Obviously, the Court has here accepted the position as it obtains in England in this respect as stated above.30. In Jagadale,31. the Karnataka High Court has ruled that when an Act uses a laying formula with a negative resolution, the rules may be made effective as soon as they are made and laying before the legislature is not a condition precedent to their validity. From the above discussion it would appear that, in practice, the 'laying' requirement (other than that of the affirmative type) does not lead to any effective parliamentary control over delegated legislation. However, it needs to be pointed out that in Australia the simple laying procedure is regarded as mandatory.32 One can think of several good reasons why this kind of laying procedure ought to be deemed to be mandatory and not directory. The laying provision forms part of the general publication requirements and, therefore, it may be argued that it should be strictly complied with. The requirement is an exercise by the legislature of its right to check the action of its legislative delegate; parliamentary review of delegated legislation is an essential part of the control mechanism over delegated legislation and it should not be diluted. It is also an essential part of the law making process and so Parliament must have the opportunity to look into delegated legislation which can be ensured only if laying procedure is regarded as mandatory. Though regarded legally as directory, the responsibility of the executive to the legislature remains for any failure to lay. For example, regulations made under the All India Services Act, 1951, were not laid before Parliament for several years. To rectify the omission, Parliament passed the All India Services Regulations (Indemnity) Act, 1975, to indemnify the Government and its officials from all consequences arising out of the omission to lay. The Punjab National Bank Employees Voluntary Retirement Scheme, 2000, not being part of statutory regulation, its placement by the Central Govt. under Section 19(4) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 was not necessary and failure to do so did not vitiate it.33 (d) Laying and Judicial Review As has already been explained earlier at some length, the 'laying' requirement makes no substantial difference to the applicability of the doctrine of ultra vires of delegated legislation and the judicial power to go

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into the question of its legal validity.34 (e) Parliamentary Scrutiny Committees As is clear from the above, the laying procedure by itself does not afford much of an effective parliamentary supervision. In the negative resolution procedure which now prevails in India, everything depends on the vigilance of each individual member of Parliament. Allen has remarked so rightly, "It lies, then, in the realm of constitutional fiction to say that Parliament exercises any really effective safeguards over delegated legislation.35 Though said in the context of England, it is equally true in the Indian context as well. To make parliamentary supervision over delegated legislation more effective, two Committees on Subordinate Legislation, one in each House of Parliament, have been established.36 The Lok Sabha Committee on Subordinate Legislation is older than the corresponding Rajya Sabha Committee. The Lok Sabha Committee was established in 1953, while the Rajya Sabha Committee in 1964. With the institution of the Rajya Sabha Committee, Parliamentary control of delegated legislation in India has become much more effective, for the two committees can scrutinize many more rules every year than could possibly be done by one committee alone. The need for such committees was felt because of the fact that mere laying of rules before a House could not be of much efficacy unless some method was evolved to scrutinize the rules so laid. The House, as a whole, being pressed for time, cannot exercise any effective supervision over delegated legislation by itself. Also, under the laying formula used in India, as mentioned above, the whole initiative to move a resolution to disapprove or amend any rules laid rests on the individual members. Therefore, the members themselves have to be vigilant, but individual members themselves are not adequately equipped to scrutinise the massive and complicated delegated legislation being turned out constantly by the government departments, and so they need help in discharging their responsibilities in Parliament. It was thus realised that some organised effort was necessary so that there may be some kind of automatic scrutiny of delegated legislation on behalf of the House to make parliamentary control somewhat more effective. It was therefore thought necessary that a Parliamentary Scrutiny Committee be instituted to keep watch over delegated legislation on behalf of the House as such and make a report to it. With this aim in view, in England, the Select Committee on Statutory Instruments was established in the House of Commons in 1944. The committee emerged as a result of the recommendations of the Donoughmore Committee, which suggested the creation of such a committee not as a critic or censor of delegated legislation but "to supply the Private Member with knowledge which he lacks at present and thus enable him to exercise an informed discretion whether to object or criticise himself."37 Since 1973, a Joint Committee on Statutory Instruments of both Houses has been established.38 On the lines of the British Committee, each of the Houses of Parliament in India has got the Committee on Subordinate Legislation. The Lok Sabha Committee consists of 15 members, appointed by the Speaker for a year, so that it represents all political parties in the House in proportion to their respective strength. The Chairman of the Committee is usually a member of the opposition, and ministers are debarred from the Committee's membership It is the tradition of the two Committees that all decisions are arrived at unanimously and party considerations are not allowed to affect their deliberations.39 The Rajya Sabha Committee also consists of 15 members who are nominated by the Chairman of the Rajya Sabha. The Chairman of the Committee is also appointed by the Chairman of the House. There is no prohibition in a Minister becoming a member of the Rajya Sabha Committee. The Committee is to hold office until a new Committee is nominated. Generally, each Committee is charged with the function of scrutinising and reporting to the House whether the power to make regulations, rules, etc., conferred by the Constitution or delegated by Parliament has been properly exercised within such delegation. More specifically, each Committee is to scrutinise orders laid before the House and to consider.40 1. 2. 3.

Whether the order is in accord with the general object of the Constitution or the Act pursuant to which it is made; Whether it contains matter which in the opinion of the Committee should more properly be dealt with in an Act of Parliament; Whether it contains imposition of any tax;

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4. 5. 6. 7. 8. 9.

Whether it directly or indirectly bars jurisdiction of the courts; Whether it gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly give any such power; Whether it involves expenditure from the Consolidated Fund of India or the public revenues; Whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made; Whether there appears to have been unjustifiable delay in its publication or the laying of it before Parliament; and Whether for any reason its form or purport calls for any elucidation.

Each Committee places its reports before the respective House. The Committee may also bring to the notice of the House any other matter relating to the rules which it thinks deserves the notice of the House. The Committee may report, along with the grounds, its view that rules may be annulled wholly or in part or amended in any respect. The Committee may, if it deems necessary, examine the representative of the concerned ministry while considering the rules. The reports of the Committee are not discussed in the House but the government gives due weight to the views of the Committee and seeks to implement the suggestions made in its reports. The reports of the Committees are very instructive and informative as they throw a flood of light on the way the institution of delegated legislation functions in India. The Committees' reports are full of comments on the rules promulgated by the executive and the manner in which they are made. Some assessment of the work done by these Committees, and their efficacy as a supervisory organ over delegated legislation, may be made by referring to the reports of the Committees which are replete with comments and criticism of the rules and the way these are made. The Committees have evolved several propositions to improve rule making by government agencies and also to protect the interests of the individual.41 As a result of the Committees' suggestions, many improvements have been effectuated in the rules as well as in the provisions regarding parliamentary supervision. To take an example about the latter, the presentday laying formula, noted above, has come in vogue because of the Lok Sabha Committee's constant efforts over a period of time.42 The Committees have constantly objected to delays in laying rules before Parliament after they are made. They have insisted that the rules be laid before the Houses as soon as possible after they are made. It is one of the specific functions of the Committees to take note of any unjustifiable delay in laying rules before Parliament. The usual statutory formula in India stipulates that the rules be laid "as soon as may be" after they are made, but often the rules are laid after a lapse of long time. Such delay reduces the efficacy of parliamentary control. From this point of view, the record of the departments has not been very good.43 The main reason for the delay in laying rules before the Houses is inadvertence on the part of the ministries.44 Therefore, the Committees have emphasized time and again that the Government take the first opportunity of placing the rules before the Houses of Parliament. As a result of the constant efforts of the two Committees, some improvement has been effected in this direction. Again, referring to the delay of over one year in laying certain notifications before the House, the Committee has said: "The Committee does not approve of the inordinate delay in the instant case and expresses its concern in the matter and directs that such an instance should not recur".45 The Committees do not take kindly to the attempts made by the executive to curtail judicial review through rules and have constantly advocated the principle that a substantive provision excluding jurisdiction of courts, if thought necessary, should be made through Parliament, and not by subordinate legislation.46 The Committees have also objected to the vesting of final power of interpretation of rules in the rule-making authority. It is true that such exclusion of judicial review is not binding on the courts, but the Committees have pointed out that even then it should not be provided in the rules as it would create an impression in the minds of the persons concerned that the jurisdiction of the courts has been ousted.47 The Committee has again referred to this aspect in 1984. Referring to the "known presumption of delegated legislation that Parliament did not intend to oust the jurisdiction of the courts of law," the Committee has stressed that "no subordinate legislation should directly or indirectly oust the jurisdiction of the courts of law in any manner."48 The Committee has argued that, first, curtailing or limiting powers of courts by rules is not in keeping with the structure of the Constitution; and, secondly, if this were allowed, there would be no judicial check over transgression of the rule-making power by administrative authorities. The general principle enunciated by the Scrutiry Committee has been accepted by the Central Government.

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As regards taxation, the Committees have assiduously taken the view that, consistently with democratic principles, a financial levy, whether tax, fee, or any charge, should be imposed by a statute and not by rules.49 This is based on the theory that financial imposition is the privilege of Parliament and the Executive should not be permitted to levy any financial levy without any parliamentary authorisation. If Parliament considers it necessary to delegate to the concerned authority power to impose any financial levy, it should do so expressly or by necessary implication in the statute. The courts also follow this principle in testing the vires of the rules.50 The Committees have criticised some rules on the ground of using complicated language, or containing ambiguities, which make it difficult for the general public to understand them. They have emphasized that the language of the rules should be simple and not complex and should be such as the Indian public is able to understand.51 The Committees have made this suggestion under the heading (no. 9 above) saying "Form and purport calling for elucidation". The Committees have taken objection to giving retrospective operation to the rules unless such a power has been expressly conferred by the parent statute. Retrospective operation of the rules is disfavoured as this prejudicially affects vested rights. The Government has generally accepted this view subject to the rider that if it becomes necessary in rare cases to give retrospective effect to any subordinate legislation, care would then be taken to see that it is in accordance with the principle laid down by the courts that such operation does not affect vested rights. It has been emphasized that where retrospective effect to rules is given, there should be an explanatory note stating the circumstances and reasons thereof and affirming that no one will be adversely affected as a result of retrospective effect.52 The explanatory note should be published in the gazette as it would go to prove that there was no mala fide action.53 The Committees have also pointed out from time to time that certain provisions made through rules be better made through an act of Parliament. The basic philosophy underlying the technique of delegated legislation is that policies are formulated by the legislature and laid down in the statutes, and detailed provisions to given effect to those policies may be worked out through rules made by the Administration. It, however, happens at times that matters which ought more properly to be considered by the legislature are not discussed there, but are left to be taken care of through rules and this, consequently, diminishes parliamentary control of the executive. Therefore, the committees are specifically charged with the duty to see if the rules contain any matter which should more properly be enacted in the Act, so that important matters do not escape parliamentary consideration. As for example, the Lok Sabha Committee has objected to delegation of rule-making power to the government to make rules regarding allowances to the ministers under the Salaries and Allowances of Ministers Act, 1952, on the ground that it amounts to ministers legislating for themselves. Such rules, the Committee has suggested, should become operative after an affirmative vote by the House. The Rajya Sabha Committee has taken objection to a rule conferring on an authority all the powers of a civil court. The conferment of powers of court on an authority being a matter of substantive law, it should be provided in the statute itself and not in the rules made under it.54 Similarly, levy of interest is to be provided in the enabling Act rather than the rules,55 or the power of seizure should be provided in the parent statute and not in the rules.56 At times, the Committees have suggested that the matter should be dealt with by rules rather than administrative instructions.57 At times, the Committees have criticised the delegation of rule-making power in wide language. Generally speaking, the Committees' function is not to criticise or reformulate policies embodied in the rules, or to review them on merits; their task is to scrutinise application of policy, its forms and its results. Such a restriction is imposed because of the fear that the Committees, consisting of party men, may divide on party lines on policy matters which might compromise their efficacy.58 However, the term of reference empowering them to consider whether the Executive has made an 'unusual or unexpected' use of the rule-making power (Term of reference number 7, mentioned above), may be said to be the nearest approach to consideration of policy matters, or, merits of the rules, without saying so specifically. This formula has a wide range and it gives a discretion to the Committees to criticise the rules on any ground that they want to. This introduces flexibility in respect of the Committees' scrutinising functions. A few illustrations as to how this power is used by the Committees may be noted here. Under this head, the Committees have criticised the rules on such grounds as: the rules are not fair, or they are harsh, or they are against natural justice,59 or they are ultra vires or discriminatory, or they confer very broad discretion on the Administration without proper safeguards,

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or the restriction imposed is disproportionate to the evil sought to be remedied. It has been emphasized that guidelines should be laid down for the exercise of discretion60 and that a wide discretion should not be conferred on an official below a certain rank.61 The Committees have quite often insisted on the necessity of providing procedural safeguards in the rules against abuse of administrative powers. The Committees realize that in the absence of proper procedural safeguards, there is a danger of discretionary power being misused. Thus, the Committees have insisted on the observance of the principles of natural justice where an individual is adversely affected by administrative action under the rules;62 the Committees have insisted that such principles must invariably be observed where the rules provide for imposition of a penalty.63 The Committees have suggested that reasons be recorded for refusal to grant a licence,64 or taking some other adverse action against the individual,65 and making provisions for appeal against the orders of administrative authorities.66 Many a time, the Committees have suggested amendment of the rules so as to incorporate procedural safeguards therein. One specific instance may be noted here. A rule conferred general power on the concerned authorities to withdraw either totally or partially any telephone if they considered it necessary to do so. The Committee apprehending that such an unqualified power may be abused or used arbitrarily suggested modification of the rule so as to incorporate the following safeguards therein: (1) giving of due notice to the subscriber before withdrawing the telephone; (2) recording of reasons in writing for withdrawing the telephone, and (3) communication of the same to the subscriber. The Committees have stated that the power of search should be exercised subject to certain safeguards, such as, the officers exercising power of search should pay due regard to the social and religious customs of the occupants of the premises, witnesses should be present at the time of search, and an inventory of the goods should be prepared.67 At times the rules have been found to be ultra vires,68 discriminatory69 or unfair.70 In some cases "Removal of Difficulties" clause has been used in the rules itself. Under this clause the government could by directions remove the difficulties in the operation of the rules in question. The Committee has criticised the use of the clause in the rules because the government has got the right to amend the rules themselves, and the directions issued under the clause are not published in the gazette.71 A general power has been given to the Committees to bring to the notice of the House any matter relating to an order which in its opinion deserves the notice of the House. Under this head, which is a kind of residuary power, the Committees may point out such matters in connection with the rules as are not covered by any specific term of reference. The Committees have thus taken opportunity to comment on several matters concerning rule-making. One such matter is delay in making rules under several Acts. In some cases, the rules were not framed for such long period as over 6, 7 or 14 years.72 It is not clear how these Acts, which provide for certain matters to be regulated by rules, were administered in the absence of such rules. The Committees have emphasised that delay in making the rules should be avoided and in no case the period for making the rules should exceed six months.73 In this connection, the Rajya Sabha Committee on Subordinate Legislation has observed: "The Committee observes from their study of the various factors contributing to delay in making rules and regulations under the various Acts of Parliament, that the one main factor for the delay has been the involvement of various Ministries, Bodies, Departments for consultation in framing, vetting and finalisation of the rules etc. It has been brought to the notice of the Committee by the concerned Ministries that correspondence between different departments consumes lot of time. In this context the Committee recommends that in such cases where multiple agencies are involved in the matter of finalisation of rules, the practice should be to call the representatives of all the concerned Ministries, Departments etc. simultaneously round the table for discussion instead of writing to one authority or the other. Such a meeting may be repeated, if necessary, for speedy decision and expeditious finalisation of the rules and regulations."74

The Committee has again referred to this matter later in its Seventyfirst report.75 The Lok Sabha Committee has also suggested ways and means of publication of rules in the Gazette of India with a view to make it easy and convenient to the people to locate them.76 Even when the parent Act

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did not require publication of rules, the Committees have insisted on publication of the rules in the Gazette of India. This is to be done even when the rules have been otherwise published for the information of those concerned.77 Like any other law, delegated legislation ought not only to be certain but also ascertainable. The Committees have taken the view that publication of such legislation is a vitally important factor both for protection of the affected persons as well as for keeping the administrative agency in line with democratic principles. The Committees have made a number of other suggestions to improve the procedure and techniques of rule-making. For example, even when the parent Act did not contain such a provision, in several cases, the Committees have insisted for draft rules being circulated and objections invited thereto from the affected interests before finalisation of the rules.78 The committee has stated that where draft rules are published to invite comments from the public, sufficient time (at least 30 days) must be given to the public for the purpose, and to ensure this the date on which the gazette containing the draft rules was made available to the public should invariably be mentioned in the preamble to the rules when they are finally notified.79 From the above brief resume of the work done by the Parliamentary Scrutiny Committees, it would appear that the Committees on Subordinate Legislation of the two Houses constitute an important agency through which parliamentary control over delegated legislation is exercised in India. It is through these Committees that 'Parliament keeps a watchful eye on the government departments to whom the power of legislation is delegated and maintains its control over such delegated legislation. The Committees have been doing useful work and trying to develop some norms and standards for the Administration to follow in the task of rule-making. The role of the Committees is not only curative, or critical, but also preventive. The value of these Committees does not lie only in the number of cases they expose of administrative lapses. Their existence keeps the Administration on its guard, and discourages it from doing things which the Committees have criticised, and thus the Administration becomes more careful in using its power of rule-making. There has been a good deal of co-operation between the Committees and the Government and the latter has implemented invariably most of the suggestions made by the former. Even in cases where a difference of opinion arises between a Committee and the Government there is discussion between the two with a view to evolving norms which may be acceptable to both. It may, however, be noted that these Committees do not have any effective sanction in their hands. Whatever has been achieved by the Committees has been through discussion between them and the rule making departments. But where this process fails, the Committees have no recourse except to report to Parliament. Also, these Committees do not go into questions of merits or policy underlying delegated legislation, and the area of administrative policy-making is largely immune from the Committees' scrutiny. To this extent, the efficacy of the Committees is limited for much of the policy is made to-day by the Administration through its power to make rules and the Legislature cannot always effectively scrutinise such policies. This weakness in parliamentary control of delegated legislation remains and no effective method has been devised so far to fill in this gap, except to some extent, through the consultative technique discussed below. It is suggested that Parliament should develop some mechanism to examine in detail the substance of delegated legislation. 2. PUBLICATION There is a well-known maxim that ignorance of law is no excuse, and that every one is presumed to know the law. But this maxim can apply legitimately only when there exist channels for publication of the law enacted from time to time. Publication of law is extremely important as it enables the people to know what the law is. It will be unfair to make people liable for breaking a rule if it was never published or brought to their attention. Legislation by a legislature involves a lot of publicity, for the bill is discussed on the floor of the legislature for several days; it passes through several stages, and the discussions are reported in the press, which may also comment on policy and principles underlying the bill. The same degree of publicity does not, however, attach to administrative rule-making because most of the time rules are drafted by departments in secrecy. For an individual, publication of delegated legislation is no less important than that of the Acts of Legislature, because in many cases, it is the delegated legislation to which he must turn to ascertain what he may not do. In most cases, the rights of the individuals are regulated by rules which impose obligations on them and the breach of the rules may subject the concerned person to penal sanctions. It is essential, therefore, that adequate means are adopted to publicize delegated legislation so that people are not caught on the wrong

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foot in ignorance of the rules applicable to them in a given situation. The system of publication ought to be such that delegated legislation is not only made known to the people, but it is also easy to locate as and when necessary. In England, systematic publication of delegated legislation is ensured by the Statutory Instruments Act, 1946.80 A statutory instrument81 of a general nature is to be sent to the Queen's Printer as soon as it is made to be numbered, printed and sold to the public.82 Subject to a few exceptions, every statutory instrument must bear on its face a statement showing the date on which the instrument came or will come into force. In any proceedings against a person for an offence under a statutory instrument,83 it is a good defence that the instrument had not been issued by Her Majesty's Stationery Office at the date of the alleged offence unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the statutory instrument to the notice of the persons likely to be affected by it. This provision thus ensures that some steps have been taken to acquaint the people with a particular statutory instrument before a prosecution is launched. The provision seeks to avoid the danger that a person might be convicted for contravening a rule the existence of which he had no means of knowing. Under this provision, actual knowledge of the instrument is not necessary. What is necessary is that either the instrument had been published and issued before the date of its infringement, or reasonable steps had been taken to bring its purport to the notice of the persons likely to be affected by it. According to these provisions, there is a distinction between making and publication of an instrument. An instrument comes into effect when made, or from the date fixed for its commencement. Its non-publication does not affect validity or effectiveness. The requirement of publication of an instrument is only directory, purely a matter of procedure. Publication of an instrument in the manner prescribed is a notice to every one of its existence. Lack of publication thus only raises the question of lack of notice of its existence, but notice can be proved otherwise than publication as stated above. S. 2(1) of the Statutory Instruments Act does not refer to the making of rules through publication but of publication immediately after the making of any statutory instrument. The idea of the provision is to give 'constructive' notice of the rules made to the affected persons.84. S. 3(2), SIA, envisages only a criminal liability. This means that non-publication would not affect the validity of a statutory instrument altering civil rights. In the United States, before 1935, there existed no provision for publication of delegated legislation. Affected persons thus remained uninformed and could hardly locate the rules applicable to them. The unsatisfactory state of affairs was forcefully exposed in the Panama case85 where the United States Supreme Court found that because of inadequate publicity, the industry, the enforcement officers, the lower courts were all unaware that a NRA regulation on which the proceedings were based in the case had been revoked. This disclosure, and the resulting uproar, led the Congress to enact the Federal Register Act in 1935.86 The Act establishes a Federal Register and provides for publication therein of all federal rules, regulations, orders, and other documents of "general applicability and legal effect." The Register is published every day from Monday through Friday. Failure to publish rules results in an infirmity in so far as such rules are not to adversely affect a person having no actual knowledge of them. Thus, publication in the Register is a mandatory requirement for legal effectiveness of rules; failure to publish renders a regulation unenforceable, except against a person who has actual knowledge thereof. A corollary of the above principle is that once a rule is published in the federal Register, it is legally binding regardless of the lack of knowledge of those persons who are subject to it. The provisions for publicity of delegated legislation have been further strengthened by the Administrative Procedure Act, 1946.87. Under S. 552(a)(1), every agency is required to publish in the Federal Register, description of its central and field organisation, rules of procedure, substantive rules of general applicability adopted as authorised by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency" for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law. There is a general requirement of pre-publication of rules in the Administrative Procedure Act. S. 553(d) requires that substantive rules shall be published at least 30 days before the effective date thereof except as otherwise provided by the agency for good cause found and published with the rules. This gives a discretion to the agency to bring into immediate force rules which it thinks should be enforced immediately in public interest.88 This provision provides for deferred effectiveness of the rules. The underlying idea is to give a timely notice to the people of the forthcoming rules so that they have time to adjust themselves to the requirements of these rules and are not caught unawares.

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To further facilitate the task of an individual in finding a rule and its amendments, apart from publication in the Federal Register, rules are brought out in a codified form in the Code of Federal Register. Each volume of the Code contains an annual supplement for the current year containing amendments to the rules made during the last year. The code is divided into fifty subject-matter titles, and is revised annually. "The Code is a compilation, in logical order, of federal rules and regulations, arranged on an agency-by-agency basis."89 The authority for the publication of the Code of Federal Register is to be found in S. 311(a) of the Federal Register Act. In the USA, the approach seems to be to regard publication of rules as directory. The idea of publication at one place is to give "constructive notice" of the rules having been made.90 Of course, actual notice, if taken, is the "best of all notices." As against the above-mentioned provisions in the United Kingdom and the United States, India has no general statutory provision requiring or regulating publication of delegated legislation. However, speaking generally, delegated legislation has to be published. Publication of the rules (or any other form of delegated legislation) is regarded as an essential requirement of their validity, and publication in the Gazette of India, or of the State concerned, as the case may be, is deemed adequate. The Indian Statute Book presents many variants of the publication requirement. But there are statutes which provide for the making of rules but are silent as to publication and make no stipulation that the rules made under them be published in some manner.91 Even in such a case, publication of the rules in the Official Gazette is regarded as an essential requirement for their validity. The matter was settled early by the Supreme Court in Harla v. State of Rajasthan.92 In this case, the law in question made by the Executive had remained buried in the government files for years without ever seeing the light of the day. There was no law requiring publication at the time when the law in question was made. Nevertheless, the Supreme Court held the law to be invalid. The Court emphasized that promulgation or publication of some reasonable sort is essential to bring a law into force, to make it legally effective, as it would be against natural justice to punish people under a law of which they had no knowledge, and of which they could not, even with the exercise of reasonable diligence, have acquired any knowledge. Thus, what the Court held in Harla was that promulgation or publication of some reasonable sort was essential to bring the law into being, to make it legally effective, but the Court left it vague as to what channels of publication were to be adopted. In State of Maharashtra v. George,93 the Supreme Court again ruled that in a situation where there is no statutory requirement for publication of the rules, it is necessary to publish the rules in the usual form, in such media as is generally adopted to notify to all persons concerned with the making of the rules. As publication of the rules in the Gazette of India is the usual method of bringing rules to the notice of the concerned persons, such publication was held to be sufficient in this case. The most common statutory provision to be found in India regarding publication of rules is the one requiring publication of rules in the official gazette. Each statute has to make such a stipulation as there is no general formula for the purpose. The usual formula used for the purpose is: The Central Government may, by notification in the official gazette, make rules to carry out the purposes of this Act. At times, however, a slightly different formula is to be found, e.g., S. 133(2) of the Motor Vehicles Act, 1939, ran as follows: "All rules made under this Act shall be published in the official gazette, and shall, unless some later date is appointed, come into force on the date of such publication." Any such formula makes publication of the rules in the official gazette mandatory. In case of formula one above, it can be argued that since it stipulates "making" of rules by "publication in the official gazette", the rules cannot be said to have been made if not published in the Gazette. Therefore, the rules are not enforceable if published in any other mode but not in the gazette.94 In case of formula two above, while the rules may be said to have been made before publication, their publication in the gazette is the condition precedent for the rules do not come into force without publication in the gazette. When rules are required to be published in the State Gazette, their publication in the district gazette, but not in the State Gazette, does not make them enforceable.95 At this place, reference may be made to Bangalore W.C.S. Mills Co. v. Bangalore Corporation,96 which introduced a discordant note in this regard. The statute in question required publication of the delegated legislation made thereunder in the official gazette. The municipality in question imposed a tax by resolution which was published in the local newspapers and was also communicated to those who were affected thereby. A statutory provision laid down that no act or proceeding taken under the Act was to be questioned merely on the ground of "any defect or irregularity in such Act or proceeding not affecting the merits of the case." The Supreme Court ruled that although the resolution in question was not published in the official gazette as the Act required, the defect was cured by this provision. The case refers to municipal resolutions and not ordinary delegated legislation made by the Administration. A factor present in the instant case was that the

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proposal to impose the tax was pre-published and objections were invited against it,97 and, accordingly, the affected persons had some notice. But, even so, the value of this case is dubious for several reasons, viz.: (i) the publication of delegated legislation in the gazette is the accepted mode. This is deemed to be the authenticated mode of publication. (ii) In many cases, the provision regarding publication of delegated legislation in the official gazette has been held to be mandatory. Therefore, lack of publication in the gazette cannot be made good by any other mode of publication; (iii) the "curing of defect clause", or the clause making "defect or irregularity in act or proceeding" non-challengeable, as already noted can only cure directory procedural defects but not deviations from mandatory procedural provisions. Therefore, the failure to publish in the gazette could not have been cured by this clause. The Govindlal case,98 mentioned below, has shaken the authority of the Bangalore case. Some statutes incorporate a requirement for publication of delegated legislation but leave the mode thereof to the choice of the rule-maker. Publication in the form prescribed by the Authority will be mandatory in such a case.1 A statutory provision authorised the State Government to lay down the syllabi for various examinations and publish the same in "such manner as may be prescribed." After that the Government could prescribe text books for various courses. The Supreme Court ruled that, under the statute, publication of the syllabi was essential. The Court emphasized that "publication" involves wider publicity than mere minimal. communication to the departmental officialdom; it involves publication of the syllabi to the academic world. "Necessarily publication is important", and "the State Government should not dismiss it as a ritual of little moment." In the absence of publication of syllabi, it would be void for the State Government to prescribe the text books.2 A word of comment may be said here on the above formula. The courts have always insisted on publication of rules in some recognisable manner or in the customary channel.3 From the point of view of the individual, it is unfair to publish rules in an obscure publication instead of the official gazette. Publication of the rules in the gazette has several advantages for the individual. First, publication of the rules in the official gazette gives authenticity to the rules and it creates certainty in the mind of the individual that the rules have been duly made. Secondly, the individual can have easy access to the rules for he knows where to look for the rules under any statute. It is, therefore, advantageous for him if all the rules are published in the gazette and not in sundry publications. From this point of view, the abovementioned formula of not prescribing the gazette as a mode of publication, but leaving the same to the discretion of the rule-making authority is anomalous for it will make knowledge of, and access to, the rules very difficult. The rule-making authority, may prescribe any mode of publication and the individual may not know where to locate the rules. Such a formula ought not to be used in statutes. Rules should be published in one customary channel, and not in different channels depending upon the sweet will of the concerned rule-making authority itself. Certain statutes specify special modes or forms of publication of rules made thereunder. While publication as such is mandatory, it is for the courts to decide whether the specific mode prescribed is to be regarded as mandatory or directory. In this connection, reference may be made to Govindlal4 where emphasis on publication reached its high watermark. Under the relevant Act, the Director of Agricultural Marketing could issue a notification to regulate purchase and sale of agricultural produce in any area. There was provision for pre-publication of the draft notification.5 The final notification needed to be published in the official gazette, as well as in Gujarati in a local newspaper. In this way, a double publication was stipulated for the final notification, viz., publication in the official gazette and publication in a local newspaper in Gujarati. In the instant case, the final notification was published in the Gazette, but not in Gujarati in a newspaper. The Supreme Court declared that the notification lacked legal validity. The Court ruled that publication of the notification in the newspaper was mandatory. The Court came to this conclusion not only because of the presence of the word 'shall' therein which usually makes a provision mandatory, but also because of the following reasons. The notifications under the Act could vitally affect valuable rights of trade and commerce of the people, and violation of the notification could subject them to penal consequences. Adequate publicity of the notification was thus a great necessity. The legislature did not regard mere publication of the rules in the gazette as an adequate means of publication. Publication in a newspaper attracts greater attention of the public than publication in the official Gazette, and, therefore, the same was obligatory. The statute itself devised an adequate means of due publicity, and there was no reason to depart from the mode prescribed by the legislature. A rule made under the Act in question had required that a copy of the notification "shall also be published by affixing a copy thereof at some conspicuous place in the office of each of the local

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authorities functioning in the area specified in the notification." The Court ruled that the requirements of this rule must also be complied with as the rule caused no inconvenience to the authorities charged with the duty of administering the Act. It is clear that this ruling lays great stress on complying with the statutory requirement regarding publication of the rules. Failure to publish the rules as required by the parent statute affects the enforceability of the rules and this lapse cannot be cured by invoking the doctrine of constructive notice of the rules to those who are affected by them. In Govindlal, in spite of publication in the Gazette, the rules were held to be not enforceable because of non-observance of the additional publicity procedure prescribed.6 Section 46(2) of the Police Act, 1861 prescribed that rules could be framed by notification in the Official Gazette. However, the administrative order in question in the instant case was not specifically under the section concerned but was referable to various powers available under the Act. Hence, its publication was held to be not necessary and non-publication did not render it ineffective.7 The publication of notice in the Official Gazette under Section 269-D(1) of the Income-tax Act, 1961 is the very foundation for initiation of proceedings for acquisition of immovable property under Chapter XX-A of the Act and only after this publication the competent authority gets jurisdiction to make an order for acquisition of the property. However, any error or mistake in the service of the show-cause notice under Section 269-D(2) to transferor and transferee of the said immovable property does not in any manner affect the jurisdiction conferred upon the competent authority to take proceedings for acquisition of the said property and service of such notice prior to publication is merely an irregularity and cannot have the effect of ullifying the entire proceedings, validly commenced.8 Section 69 of the Kerala Police Act, 1960 (5 of 1961) required the rules to be notified in Kerala State Gazette. Kerala GOMS No. 252/Home contained rules for appointment to the posts of Head Constables by promotion. It was published in Kerala Police Gazette and not in Kerala State Gazette. The Supreme Court held that such rules could not be said to be rules made under Section 69 and must be treated as an executive order only.9 In some cases, the Supreme Court has desisted from applying the statutory provision laying down the mode of publication of delegated legislation strictly and has become satisfied with a substantial compliance thereof. A notable case on the point is B.K. Srinivasan v. State of Karnataka.10. The relevant provision in the parent Act required publication of the approved plan in the official gazette. Instead of publishing the entire plan, the Administration published in the gazette a notice informing the public that a copy of the plan could be seen at the authority's office. The Supreme Court held this as substantial compliance with the prescribed publication procedure. Similarly, in State of T.N. v. Sun Paper Mills,11 a notification cancelling the earlier notification by publishing its number in the Gazette without mentioning the page, part and the section of the Gazette in which the earlier one was published, was held to be published in accordance with law. The Court also invoked the 'conclusive evidence' clause12. contained in the parent Act. The clause provided that "no act done or proceeding taken under this act shall be questioned on the ground merely of ... any omission, defect or irregularity not affecting the merits of the case." Calling it as 'Ganga' clause,13 the Court ruled that it would cure deviance from the publication procedural laid down in the Act. The "conclusive evidence" clause was thus being used to cure deviance from a mandatory provision. This case constitutes an example where the Court has become satisfied with a substantial compliance with a mandatory procedural norm. The mode of publication of the plan was prescribed in the Act, and the rules, viz., publication the Gazette which was not strictly followed. Here the Court has compromised two basic principles of Administrative Law, viz.: (1) a mandatory procedural provision must be strictly observed; (2) Rules must be published in the official gazette to make them enforceable. By a strange logic, the words in the statute "published in the Gazette" were strained to mean "published in the Gazette or some other place designated in the Gazette". The Court acquiesced in the executive view of the publication requirement which, in essence, was more'convenient to itself though not necessarily to the people. The attitude adopted by the Court in Srinivasan seems to be very much in variance with the Court's attitude in Govindlal. Also, the Court has given a very liberal connotation to the 'conclusive evidence' clause. A similar soft attitude on the part of the Court towards publication of the rules is evident in Sonik.14 The relevant provision in the parent Act required that the rules made by the municipality "shall be published by the municipality in the municipal borough, together with a notice reciting the (government) sanction, and the, date and serial number thereof." The tax imposed through the rules could not be levied before at least one month from the date of publication of such notice. In the instant, case, the concerned Municipality published a notice in a Gujarati newspaper that the Municipality had resolved to enforce the rules regarding the tax on buildings and lands. The notice after reciting the date, and serial number, stated that the rules could be

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inspected at the office of the Municipality on any working day and the copies of the rules could be purchased from the municipal office. The levy of the tax was challenged on the ground that the rules had not been published as envisaged by the relevant provision in the parent Act. Rejecting the argument, the Court rules that the provision in question in the Act did not prescribe any specific mode of publication. The provision envisaged that the rules must be published and that requirement had been complied with. The mode of publication was a matter of a directory nature. It is sufficient if it is reasonably possible for persons affected by the rules to get knowledge thereof with fair diligence. "Had the Act itself specified the mode in which the rules were to be published, that mode would have to be adopted for publishing the rules... But the Act is silent as to this." However, the Court did express the opinion that it would have been more desirable for the Municipality to have published the rules in the newspaper along with the notice. Again, while the statutory provision envisaged publication of the rules as such along with the notice, the Court was satisfied with a notice informing the people that the rules were available at the office of the municipality. Obviously, this was a case where a mandatory provision regarding publication of rules had not been strictly followed. Due publication of the rules in the mode required by the statute, or, in the usual mode, has the legal effect of notice to all concerned. In such a case, ignorance of the rules cannot be pleaded as a defence. This would be so even though the individual had no reasonable means of actually knowing the rules. In George,15 a notification of the Reserve Bank of India dated November 8, 1962, was published in the Gazette of India on 24th November, 1962 making bringing of gold into India as illegal. The accused left Switzerland on 27th November, 1962, with gold, and arrived in India the next day bringing with him gold in contravention of the notification. In his defence, he argued that he was not aware of the notification. Rejecting the argument, the Supreme Court said: "In a sense the knowledge of the existence or content of law by an individual would not always be relevant." The Court held that since the notification was published and made known in India, its ignorance by the accused was wholly irrelevant. The Court went on to observe that for an Indian law to operate and be effective in India, it is not necessary that it should either be published or be made known outside the country. The notification in question having been published in India on November 24, the ignorance of it by the foreigner was wholly irrelevant. Even though he had no actual notice of the notification it would make no difference to his liability. The Court rejected the argument that the notification in question would not be effective unless it was brought to the actual notice the respondent. The fact-situation in George very tellingly underlines the need of publicizing the rules, imposing new burdens on the people or making an existing legal activity as illegal, a reasonable time before they are to come into effect so that people are not caught unawares. This is the demand of the values of openness and fairness in the administration. This objective can be achieved by enacting provision for the purpose. As noted above, in the U.S.A. and England, lack of publication of delegated legislation only raises the question of notice.16 The position is different in India. In India, however, judicial view goes much further. Here the publication of rules is regarded as mandatory and so non-publication affects their legal validity and it is irrelevant that a person had any notice or knowledge of the rules in question. This point comes out very clearly in Govindlal. There was enough basis to assume in that case that the person prosecuted for the violation of the said rule had knowledge of it, or at least had "constructive" notice of it. But his conviction was quashed because the mandatory provision regarding additional publication of the rule in the newspaper had not been complied with.17 When does delegated legislation come into force ? The day on which it comes into force is connected with the publication of the rules. Usually, the rules themselves mention the date of their coming into force. If this date is a date subsequent to the date of their publication, there is no difficulty and the rules come into effect from the date mentioned. If this date is a date anterior to that of publication, this is also the date on which rules should come into force, unless they are held to be ultra vires on the ground of retrospectivity. When the date is not mentioned in the rules, there are three possible dates on which they may be held to have come into force: (1) the date on which they are made; (2) the date of their publication; or (3) in the case of the requirement of their publication in the gazette, or specified mode, the date on which the gazette is published. The difficulty arises because there is always a time-lag between the making of the rules and their publication. In the George case, the Supreme Court held that at least the rules in question (notification dated Nov. 8 published on Nov. 24 in the gazette) came into effect on the date of the publication of the gazette, and the question whether they came into effect at an earlier date was left open.18

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It is true that a statute comes into effect on the day it is made but this has no relevance to the rules because the proceedings for the making of the rules are not publicized. The Allahabad High Court, however, has held19 that the rules relating to conditions of service of government servants came into effect on the date they were made. The Court distinguished such rules from rules penal in nature. The Court stated: "We are dealing with certain rules framed by an employer with respect to conditions of service of his employees. There is no good reason why such rules should not come into force as soon as they are framed."20 Since publication of rules is deemed to be mandatory for their validity, it is clear that such rules as impose a liability or an obligation on the individual will become effective on the date the gazette is published, and not earlier. As some sort of publication is in any case mandatory, the date of making the rules becomes irrelevant for their effectuation and the second and the third dates, mentioned above, only are relevant. However, in view of the uncertainty existing on the point as to when the rules come into existence, the Supreme Court in George advocated the enactment of a statute, on the lines of the Statutory Instruments Act, to clarify the position. The best thing appears to be to adopt the date of publication of the gazette, or the specified mode, containing the rules (i.e. the third alternative) as the date on which the rules come into force. When can the gazette be said to be published ? Sometimes there may be a time-lag between the date of publication which the gazette bears and its actual publication in the sense of its copies being made available to the public. This question arose in G. Narayan Reddy v. State of A.P.21. A government notification increasing the rate of sales tax was published in the official gazette bearing 1st December, 1966, as the date. It was actually received by the subscribers on 25th December. The court on perusal of the official records found that the gazette was printed and released to the public on 12th December. It was held that the Government notification came into effect only on 12th December, 1966, and not earlier.22 Similarly, in G.T.C. Industries Ltd. v. Union of India,23. exemption in favour of cigarettes from excise duties was withdrawn by an order dated March 1, 1979. The Excise Department informed the petitioners about the withdrawal of exemption on Dec. 14, 1982. The withdrawal of exemption order was published in the Gazette which was on sale from Dec. 8, 1982. The Court ruled that the petitioners were liable to pay excise duties on cigarettes manufactured by them with effect from Dec. 8, 1982. The principle is thus established that an order becomes operative from the date from which the Gazette copies are made available to the public.24. If, however, the Administration takes some steps to bring the order to the notice of the public, before the Gazette copies are made available to the public, then the order may become operative from this date. A Central Excise notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette, then mere printing of it in the Gazette, would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.25 A prohibitory notification, notifying that the possession of certain kinds of arms in the notified areas was prohibited thus affecting the rights of the public, would come into effect from the date when it was published in the Official Gazette and not from the date of notification.26 An Office Memorandum (OM) was never made public nor was the existence thereof made known to any body concerned. The Apex Court held that it meant that it was never acted upon and hence, the same could not be relied upon by the Govt. to support its case.27 The Govindlal28 ruling would seem to indicate that when the parent Act requires publication of the rules in the official gazette as well as in some other mode, the rules would be regarded to become effective from the date on which all the requirements are completed. In case, no other requirement except publication in the gazette, is prescribed, the rules will become effective when published in the gazette. Justice demands that rules are not regarded as being effective before their publication. This is the trend of judicial decisions in India because here publication, and not mere notice, of the rules is required. This rule will also compel the concerned rule-making authority to ensure that the rules are published in the gazette as soon as possible after having been made. The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of the making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or

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rule made, it is the date of Gazette publication that is relevant and not the date of publication in a newspaper or in the media. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in Courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act, 1872 says that the Court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that Rules and/or Regulations and certain type of orders made thereunder shall be published in the Official Gazette. To call such a requirement as a dispensable one -- directory requirement -is, in our opinion, unacceptable. Section 21 of the Andhra Pradesh General Clauses Act says that even where an Act or Rule provides merely for publication but does not say expressly that it shall be published in the Official Gazette, it would be deemed to have been duly made if it is published in the Official Gazette.29 Khanna, J., speaking for himself and Shelat, J., in Sammbhu Nath Jha v. Kedar Prasad Sinha,30 observed that the requirement of publication in the Gazette is an imperative requirement and cannot be dispensed with. The learned Judge was dealing with Section 3(1) of the Commissions of Inquiry Act, 1952 which provides inter alia that a Commission of Inquiry shall be appointed "by notification in the Official Gazette". The learned Judge held that the said requirement is mandatory and cannot be dispensed with. The learned Judge further observed: "The commission of inquiry is appointed for the purpose of making an inquiry into some matter of public importance. The schedule containing the various allegations in the present case was a part of the notification, dated 12-3-1968 and specified definite matters of public importance which were to be inquired into by the Commission. As such, the publication of the schedule in the Official Gazette should be held to be in compliance with the statutory requirement. The object of publication in an Official Gazette is twofold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents."

While pointing out the importance of subordinate legislation in the affairs of the modern State, Chinnappa Reddy, J., speaking for himself and G.L. Oza, J., made the following observations: "But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication."31

Where a notification withdrew an exemption granted earlier, whether the date coming into operation of such a notification would be the date on which the copy of the Gazette was made available for sale to the public or the date of its publication, the Apex Court left the question open.32 Where the parent statute prescribes the mode of publication or promulgation that mode has to be followed and that such a requirement is imperative and cannot be dispensed with.33 In Rajinder Singh v. State of Haryana,34 the Supreme Court observed that the requirement in Section 4(2) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 41 of 1963 for publishing the contents of the declaration made under Section 4(1) in two newspapers in a language other than English was not mandatory and non-compliance therewith would not vitiate the original declaration. Moreso, when in the instant case, the said requirement was satisfied though belatedly. A levy created by a statute can be lifted, suspended or withdrawn only by a statute or in the manner prescribed by the statute creating the levy. Dispensing with the levy or payment of tax is a serious matter. It is done only with a view to promote a

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countervailing public interest. When such a power is conferred by legislature upon another authority, that authority has to, and can, exercise that power only in strict compliance with the requirements of the provision conferring that power. It is in the interest of the general public that such notifications are not only given wide publicity but there should also be no dispute with respect to the date of their making or with respect to the language and contents thereof.35 Whether the provisions of Section 11 of the A.P. Non-Agricultural Lands Assessment Act 14 of 1963 as to publication are mandatory or directory, the Supreme Court observed that it was not reasonable to hold that while other requirements mentioned in Section 11(1) are mandatory, and only the requirement of publication in the Gazette is not, or to make such a distinction in the context of the said sub-section. It held that the power given by Section 11 is of a substantive nature besides being in the nature of an exception and for this reason too, the provision conferring that power has to be complied with fully, i.e., in all respects.36 The Supreme Court applied the logic of A. Jhangal Kunju Musaliar v. M. Venkitachalam Potti, Authorised Official and ITO37 to the power delegated to the Govt. under Section 11(1) of the A.P. Non-Agricultural Lands Assessment Act 14 of 1963 to exempt any class of non-agricultural lands from the levy and held that the said power could be exercised not only prospectively but also retrospectively and upheld the retrospective operation given to GOMS No. 386 issued by the Government. It observed that the very existence of the GOMS No. 201 which was issued by the Govt. under no statutory provision and was not published in the Official Gazette either, became doubtful in view of the later GOMS No. 386 which was issued under statutory authority and was published in the Official Gazette. It was observed that there cannot be a statutory and a non-statutory G.O. on the same subject and covering the same period, inconsistent to each other as the GOMS Nos. 201 and 386 were.38 The Lok Sabha Committee on Subordinate Legislation has, however, made efforts to improve the informational side of the rule-making process in India. In cases where statutes do not require publication of the rules in the official gazette, the committee has recommended that the statutes be suitably amended to provide for publication of the rules.39 Besides, as a requirement of laying, Rule 319 of the Lok Sabha Rules of Procedure stipulates that each regulation, rule, etc., framed in pursuance of legislative functions delegated by Parliament to a subordinate authority, and which is required to be laid before the House, shall be numbered centrally and published immediately after its promulgation. A major defect existing in the method of publication of rules was that not all of them were published at one place in the gazette and there was no uniformity in the manner of numbering them so that reference to them became difficult. At first, therefore, the Committee desired that all statutory rules and orders be published in one section of the gazette and be centrally numbered from year to year. The Government found difficult to implement this suggestion. The Committee then made the following suggestions:40 (1) the Government should ensure that their notifications containing particular constitutional and statutory rules and orders are published in proper parts and sections of the gazette; (2) a yearly consolidated index should be issued; (3) a monthly index should be prepared covering all notifications published in any part and section of the gazette; (4) notifications regarding rules in each part and section of the gazette should be centrally numbered from year to year with a distinctive prefix;41 (5) a notification regarding rules should be referred to by its central number and year of its publication. As a consequence of these suggestions, the Government has evolved the following scheme of publication of rules with effect from March 1, 1958: Statutory rules and orders are serially numbered into three separate groups each with a distinct prefix. General statutory rules and orders of a general character issued by the ministries of Central Government (other than the Ministry of Defence) and by central authorities (other than the Union Territories Administration) are prefixed as G.S.R., are numbered serially and separately and are published in Part II, section 3, sub-section (i) of the Gazette of India,42 and those not of general character are published in Part II, section 3, sub-section (ii), are prefixed as S.O. and are numbered centrally and separately. Statutory rules and orders issued by the Ministry of Defence and prefixed as S.R.O., are numbered separately, serially and centrally and are contained in Part II, Section 4 of the Gazette of India. Rules and orders made by other offices or authorities are contained in other parts of the gazette.43 Each of them is an annual series. The Committee has also suggested that each order be given a number according to its date of publication, and not the date of issue, which could be given at the top of each order; that separate notifications be published under separate S.R.O. numbers; that several notifications should not be published under a single number as that is likely to cause confusion and inconvenience to everybody while making a reference to those notifications individually. Half-yearly indices of the statutory rules and orders should also be prepared.44

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Several other suggestions have been made by the Committee to improve the technique of publication of the rules so that they may be referred to conveniently, located easily and understood by the public, viz.,: (1) as rules are amended very often, the amended version of the rules should be reprinted very frequently and it should be done whenever extensive amendments are made to the rules;45 (2) rules and amendments thereto be given short titles in the body and at the top; (3) to make it possible to trace back the amendments, the S.R.O. numbers of the previous amendments or the original rules should be cited in the footnotes whenever rules are amended; (4) amendments to the same rules should be published in the gazette bearing the order numbers in the same sequence as are assigned to the amendments by the ministry;46 (5) explanatory notes, not forming part of the rules and amendments, should be appended to all rules and amendments in order to explain their general purport;47 (6) the precise statutory authority under which rules are made should be cited in the preamble of rules so that all concerned may know precisely the authority under which the rules have been made; (7) corrigenda to the rules should be published within fifteen days of the publication of the rules in which errors are found. In spite of the above recommendations of the Committee, the matter of publication of rules in the gazette remains unsatisfactory. The important recommendations whose implementation is essential for easy accessibility of rules have not been implemented, such as, the publication of a yearly consolidated index or a monthly index, making of any reference to the original rules or their previous amendments whenever the rules are amended, giving of explanatory notes to explain the general purport of the rules, reprinting of the up-to-date version of the rules whenever extensively amended, etc. The Committee again examined in 1981 the question of publishing an index to the rules (including the amending rules) and also giving references by means of footnotes to the original rules and amendments thereto and desired that it be done. It is suggested that at least the Government should bring out an Annual Index of Subordinate Legislation under the central statutes, apart from simply publishing of subordinate legislation in the drab document called the Gazette of India. The index may be divided in two parts--one part should contain the names of the statutes and subordinate legislation published under those statutes, and the other part containing subordinate legislation in alphabetical order. Both parts should give the following information: (a) Part and page number of the gazette in which published; (b) sections of the statutes under which the subordinate legislation has been made; and (c) a short comment against each subordinate legislation to show how it has affected the earlier subordinate legislation and the references thereto. It is the primary duty of the Government to improve access to subordinate legislation which is no less important than a law passed by the Legislature. Apart from the gazette, as stated earlier,48 there are a few other publications containing rules and statutory orders. The position from the publication point of view is, however, unsatisfactory on the whole. Consequently, it is not easy to find: the amendments made from time to time in the schedules to the various Acts; whether a particular rule is still in operation or not; whether it has been amended subsequently and, if so, where these amendments could be found; and whether any rules have been framed at all under an Act. The Committee has, therefore, suggested that there should be some publication of statutory rules and orders, on the lines of the United Kingdom's annual publication of statutory instruments,49 for the convenience of the public. The Government has found two difficulties in accepting the suggestion: pressure of work on the Government press which could not undertake such a voluminous work; its utility would not be commensurate with the high cost involved and it would be obsolete in no time. Instead, the Government, agreed to bring out an up-to-date publication of general statutory rules in force. Further, to give wide publicity to the rules as to make the public aware of them, the Committee has suggested that press communiqués should also be issued to give publicity to the general purport and effect of the rules. Further, advance copies of the rules of a general character be sent to the State Governments which should give wide publicity to them through their gazettes and also publicise their translations in recognised state languages. The Central Government has not favoured advance publicity of the rules in the States as premature leakage of rules might be prejudicial to the public interest. The Government has, therefore, accepted the Committee's suggestions subject to the rider that rules be published in the state gazette soon after their publication at the Centre. Regarding other suggestions, the Central Government has issued the necessary directions to State Governments. One suggestion may be made here. It has been said earlier that there is in India no general statute requiring publicity of rules and sub-rules. Though notification of rules and sub-rules in the gazette is attempted to be

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ensured, yet it would improve matters a great deal if a general provision is added in the General Clauses Act, 1897, on the lines of the Statutory Instruments Act, 1946, so as to ensure that rules and sub-rules are properly published, are made available to the public, and that no penalty for their contravention is incurred unless such publication is made.50 The Supreme Court has also suggested in George51 that an Act be enacted in India on the lines of the Statutory Instruments Act to clarify the law as to--(a) when subordinate legislation can be said to have been passed, and (b) when it comes into effect. At present, the law in India suffers from a certain amount of uncertainty. Passage of the law suggested "would be conducive to clarity as well as to the avoidance of unnecessary technical objections giving occasion for litigation." Another very important step which the Central Government ought to take is to improve the mechanism of publication so that people may have better access to delegated legislation than at present. India has no publication comparable to the American Code of Federal Register.52 The Government of India commenced in 1960 the publication of various rules in a codified form under the title "Statutory Rules and Orders." But the process was extremely slow. It took 20 years for the Government to complete the task of publishing all the 30 volumes by 1980. By the time the task was completed, the whole collection of rules had become outdated as many changes had occurred in the rules between 1960 to 1980. The Lok Sabha Committee on Subordinate Legislation pointed out in this connection that "the utility of the compilation is greatly marred by the fact that bulk of the work has already become out of date."53 On important subjects, the Ministers do bring out manuals containing relevant Acts and rules made thereunder. Thus, there are inter alia Income Tax Manual, Election Manual, Central Excise Manual, Customs Manual, Foreign Exchange Manual. There are some private publications of Central Government rules, e.g., Supplement to the Madras Law Journal, Current Central Legislation. A reference is printed every month in the All India Reporter--another private publication. These publications are helpful to the extent they go, but these are sporadic attempts. On the whole, the present-day system leaves much to be desired and needs to be improved. Rules of Business: The Central Government under Art. 77(3) and the State Governments under Art. 166(3) of the Constitution make rules of business. These rules are not publicized, not even in the official gazette as is usually the case with all other rules. Nevertheless, these rules are treated as having statutory force. These rules are meant for internal management of the Government. But they are important for the individuals dealing with the Government, as a decision made infringing the Rules of Business may be held ultra vires by the court. Whenever a need arises to refer to these rules to decide a case, the Government does present them in the court.54 (a) Criteria for promotion on the posts of private secretaries to High Court Judges The Chief Justice of the High Court of Bombay changed the criteria for promotion to the posts of Private Secretaries to the High Court Judges from seniority to merit-cum-seniority which was struck down by the Division Bench of the same High Court on ground of lack of due publicity. The Apex Court held that the question of giving publicity to the criteria would not arise as the Chief Justice had formulated the criteria for filling up the post of Private Secretaries which he thought appropriate for efficient administration and discharge of the duties of the Judges.55 3. CONSULTATION OF INTERESTS A modern and effective technique of controlling the exercise of power of delegated legislation is "consultation of interests" affected by the proposed rule-making. Public participation in, or what is also known as the democratisation of, the rule-making process is regarded as a desirable safeguard, for it enables the interests affected to make their views known to the rule-making authority, and thus help in the framing of the rules. This may serve as a significant safeguard against an improper or wrong exercise of its power. The rationale behind this technique is that legislation is primarily the function of the legislature where various interests are represented which can have their say when the legislature legislates. A major criticism of the use of delegated legislation is the lack of public debate when it is made. When a bill is discussed on the floor of the legislature, the interested persons get ample time to react to the statutory proposals. But it is not so in case of rule-making. If, therefore, a legislature cannot itself legislate, or scrutinise rules made by the

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Administration, there must at least be some procedure for the affected interests to present their views to the concerned rule-making authority. This is one way in which, to some extent, the objections to bureaucratic legislation may be minimised and an improper use of rule-making power avoided. This process of exchange of ideas is beneficial to both: to the affected interests itself insofar as they have an opportunity to impress on the authority their point of view; to the rule-making authority in so far as it can gather necessary information regarding the issues involved and thus be in a better position to appreciate a particular situation. The Administration is not always the repository of ultimate wisdom; it learns from the suggestions made by outsiders and often benefits from that advice. A consultative technique is useful in balancing individual interests and administrative exigencies. Consultation ensures that delegated legislation is passed by the authority concerned with adequate knowledge of the problems involved, and that the rule-making agency has before it all relevant materials so that it does not make decisions on insufficient information. Making rules regarding the present day complex problems involving economic, technical, and other difficult issues requires expert knowledge and adequate and reliable data. This often needs to be collected by the Administration from outside sources, that is, from persons who are likely to be affected by the rules and who are able to grasp and assess their significance, effect and practicability. Consultation with such interests by the rule-making authority ensures that the latter will be apprised of all facets of the problem sought to be dealt with by the rules; and that it would make necessary adjustments in the rules, before, rather than after, their promulgation so that the rules made by it have a better chance of coping with the problems sought to be solved. The technique of consultation avoids a clash between the rule-making authority and the interests likely to be affected by the rules insofar as they can discuss and understand the various facets and implications of the proposed rules, and it thus secures a co-operative spirit between the two which is so very essential for the successful implementation of Government policies. People have a sense of participation in administrative process. Consultative process dilutes the stigma against delegated legislation of being bureaucratic and non-representative (because of its non-discussion in Parliament), as affected interests have a chance to have their say and affect administrative decisions. The consultative process can act as a salutary safeguard against any improper exercise of the rule-making power by the Administration. As the CMP observed: "Antecedent publicity is undoubtedly a safeguard of the highest value particularly where it leads to consultation with the interests concerned."56 Public airing of grievances and problems through rul-making makes the bureaucracy more responsive to public needs and acts as an important brake on administrative absolutism. The process of consultation has been facilitated by the emergence of organised groups in the society, such as, labour, manufacturers, wholesalers, professionals, etc. These groups are in a position to give expert advice and reliable information to the Administration, and their views the Administration cannot lightly ignore.57 Therefore, the technique of consultation is an inevitable pre-condition of the present day rule-making process. Most of the consultation between the Government and the various groups goes on informally, as a matter of departmental practice. What an Administrative Lawyer is concerned with is to ensure consultation on a mandatory and formal basis in the process of rule making. In England, there is a lot of informal consultation. But consultation as a matter of right arises only when it is prescribed by a statutory provision. There is no general statutory provision requiring consultation of affected interests in the rule-making process.58 From time to time, statutes specifically lay down some requirement or process for the rule-making authority to consult designated bodies or interests.59 Usually, the statutory requirement of consultation has been held to be mandatory by the courts.60 The technique of "consultation" is used much more extensively in the United States. Consultation of interests has become the keystone of the rule-making process. The Administrative Procedure Act in S. 553 lays down a minimal obligatory procedure generally requiring rule-making authority in every case to consult the interests affected.61 A general notice of the proposed rule-making is to be published in the Federal Register specifying the time, place and nature of the rule-making proceedings, the authority under which the rules are to be made, and either the terms or substance of the proposed rules or description of the subjects and issues involved. Interested persons are to be given an opportunity by the rule-making agency to participate in the rule-making through submission of written data, views, or arguments with or without opportunity of presenting the same orally in any manner. After considering the same, the rule-making agency is to finalise the rules and incorporate in them a brief statement of their basis and purpose. The procedure described so far is known as "informal rule-making". Here a formal hearing before rule-making is not necessary. This procedure is called "notice and comment rule-making". There is, however, an escape clause. Agencies are permitted to

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dispense with this procedure if they find for 'good cause' that this procedure is "impractical, unnecessary, or contrary to the public interest". The statute (APA) also provides for a "formal procedure" for rule-making, similar to the one followed in adjudicatory proceedings, when the rules are required by the parent statute to be made on "the record after opportunity for an agency hearing". In such a case, hearings are publicly announced in advance and any interested party is permitted to attend and testify. At such hearings, either the agency, or a member thereof or an examiner appointed by it, may preside. The presiding officer is to act in an impartial manner. Each party has a right to present his case or defence by oral or documentary evidence, and to conduct cross-examination. On the basis of this record, the agency or the hearing officer may take an initial decision and the parties are to be afforded a reasonable opportunity to make submission. The procedure is very much like the one followed in adjudication. This procedure is not prescribed by the statutes very commonly. However, even the 'notice and comment' requirement itself is a substantial step towards the democratization of the rule-making process as it involves antecedent publicity of the proposed rule-making and enables the affected interests to know about the proposed rule-making and to tansmit their views before the rules are finally adopted.62 The APA provides a minimum general procedure which is to be followed in all cases of rule-making, but specific statutes may lay dawn more elaborate procedures far intensive consultation of interests; same statutes even require adjudicatory or adversary type of hearing. Even though the APA does not impose the obligation of oral hearing in informal rule-making, use of such hearings in the rule-making has, however, become a common feature of the American administrative process. Hearings ensure a very wide participation of affected interests in the rule-making process and is very useful where affected interests are numerous and unorganised. In India there is no minimum formalized consultative procedure imposed an a rule-making authority. It is now a well established proposition in India that no hearing or consultation can be claimed by any one as a matter of right or natural justice, when the Administration is engaged in discharging a legislative functian,63 and the same cannot be challenged on the ground of non-observance of the principle of natural justice.64. According to the Supreme Court: "The rules of natural justice are not applicable to legislative action plenary or subordinate. The procedural requirement of hearing is not implied in the exercise of legislative powers unless hearing was expressly prescribed".65. The courts argue that since a legislature does not hear or consult any one while legislating, so the Administration is not under any legal obligation to hear and consult any one, in the absence of a legal provision to that effect, while making rules. The flaw in this judicial argumentation is that an analogy is drawn between a legislature and a rule-making body. The truth however is that such an analogy is far fetched. A representative democratically elected legislature is incomparable with a subordinate delegated legislation making body. The two have nothing in common with each other. A legislature consists of people's representatives and this factor provides protection against arbitrary legislation. In case of a legislative function exercised by the Administration, no such in-built restraint operates and, therefore, other controls have to be thought of to afford protection to the affected interests. Another argument advanced in this connection is that legislation does not involve any adjudication and, therefore, procedure by way of hearing cannot be implied from natural justice. To take an example of this judicial approach, the function of the Government in establishing a municipality has been held to be legislative in nature, and the Government is not bound to hear the persons affected thereby.66. Although the courts have refused to imply any consultative procedure in rule-making in the absence of any such statutory requirement, or legitimate expectation,67 they do however attach a good deal of importance to such a procedure being followed by the Administration. Several times the courts have underlined the importance of following such a procedure and have advised the administrative authorities to observe the same informally even when not bound to do so formally. In Laxmi Khandsari v. State of U.P.,68 a case under Art. 19(1)(g) of the Constitution, the Supreme Court rejected the contention of the sugarcane crushers that before issuing an order banning crushing of sugarcane, the Administration ought to have consulted them. The Court said that such an order being a 'legislative measure' "the rules of natural justice stand completely excluded and no question of hearing arises." Nevertheless, the Court suggested as a guideline for the future that while imposing such a ban, the Government "may consider the desirability of giving a bare minimum hearing," if not to all owners of khandsari units, at least to one representative of the association representing them and getting his views on the subject. If the matter is urgent and hearing may not be possible, at least a representation against the proposed action may be called for from such an association and considered. Said the Court: "Not that such action is a legal requirement but it will generate greater confidence of the persons

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who may be affected by an order to be passed against them."69 In this connection, reference may also be made to what has been said earlier.70 The advice given by the Court in Laximi Khamdsari, viz. that the Administration may suo motu adopt, without any mandatory legal requirement, a procedure of consultation with the representatives of the interests affected by the proposed measure is a very sagacious one and is relevant not only in the context of the specific factual situation in that case, but even in a wider context whenever the Administration seeks to proceed through a legislative order so as to affect the established rights and . interests of a group. Even where no formal consultative procedure is prescribed, the Administration can still resort to informal consultation with the affected interests. If this judicial advice is heeded to by the Administration, a voluntary consultative procedure in making delegated legislation will come into vogue, and it will democratise administrative process in India to some extent. In the absence of a statutory consultative requirement, there is no bar in the way of the bureaucracy to informally consult the affected interests. After all, this is the essence of democratic administration. But the more effective solution to promote consultation would be to incorporate a statutory requirement to this effect in the delegating statute, or better still to have a general provision similar to the one found in the A.P.A. in the U.S.A. As consultation cannot be claimed as a matter of right, in rule-making, it can only be claimed if it is provided for by a statutory provision, on the basis of legitimate expectation. A weakness of the Indian Administrative Process is that there is no general requirement for following any minimal consultative procedure imposed on rule-making authorities just as there is in the U.S.A. In India, if in a particular case, consultation is deemed to be desirable, the legislature will have to make a statutory provision for the purpose. Therefore, reference has to be made to the parent Act to see whether it imposes any consultative requirement on the concerned rule-making authority. One general proposition may however be stated here: if a statute provides for a consultative technique then the courts do regard it as a mandatory procedural requirement, breach of which may result in the invalidation of the rules made. (a) Some Statutory Consultative Formulae Some statutes create some kind of consultative mechanism. A scanning of the Central Statutes will reveal a variety of consultative formulae being used.71. For example, under S. Section 43 of the Motor Vehicles Act, 1939, the State Government may fix fares and freights but before a notification to that effect is issued, the Government has to invite objections and to give representatives of the interests affected an opportunity of being heard. Usually the sales tax statutes provide for giving prior publicity and an opportunity to make representations against the proposal to amend the schedule to the Act.72 Also, the municipal Acts provide for inviting objections against the proposal for extending the limits of a town area or a municipal body.73S. 5(b) of the Minimum Wages Act, 1948, provides that while fixing minimum wages, the Government shall publish its proposals by notification in the gazette for information of those likely to be affected thereby and specify a date, not less than two months from the date of the notification on which the proposals will be taken into consideration. After considering all representations received by it by the fixed date, the Government shall fix the minimum wages by notification in the official gazette. This procedure has all the elements of 'previous publication' procedure mentioned below, except for two significant improvements: (1) Here the method of publication is specified, viz., in the official gazette; in the 'previous publication', this has been left to the discretion of the rule-making authority. (2) A minimum period of two months is to intervene between publication of the draft proposals and their consideration by the Government. This provides an effective opportunity for the concerned persons to make their views known to the Government concerned as regards the draft proposals. As stated below, there is no such minimum period prescribed in the 'previous publication' procedure. Another technique used for consultative purpose is to require the rule-making authority to consult a committee consisting of the representatives of the affected interests. For example, S s. 8 and 9 of the Minimum Wages Act, 1948 provides for a Central Advisory Board and committees consisting of representatives of employers, employees and independent persons. The Government may consult these bodies for several purposes as laid down in the Act. The Drugs and Cosmetics Act, 1940, creates two bodies for consultation. One, the Drug Technical Advisory Board to advise the Central and State Governments on technical matters arising out of the administration of the Act. The Board consists of some officials ex officio, some nominated officials, and some persons elected by various concerned bodies. Two, the Drugs

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Consultative Committee consists of representatives nominated by the Central and State Governments, and advises these Governments on matters tending to secure uniformity throughout India in the administration of the Act. Acting on the advice of the Board, the Central Government banned the manufacture of a medicine. The Board itself had acted on the advice of the committee. The notification banning the medicine was challenged under Arts. 14 and 19(1)(g) of the Constitution. The Punjab and Haryana High Court upheld the notification relying on the consideration that the Board consists of experts and this ensures that the Board's opinion "has a rational basis and constitutes sufficient basis for the Central Government for satisfying itself to issue the impugned notification. . ." In assessing the validity of the impugned notification, the court gave a good deal of credence to the fact that the consultative mechanism created by the Act consisted of experts and elected representatives of the various interests affected and the Government acted on the advice of these bodies in banning the drug in question. In the words of the court: "As can be seen from the provisions of Section 5 of the Act, the composition of the Board is such it consists of persons who are technical experts, on various topics concerning the composition and properties of various ingredients used in manufacture of drugs and also experience about the good or bad effects of the manufactured drugs used for curing the different types of diseases. The Committee constituted under S. 7 consists of the representatives of the Central Government and one representative from each State nominated by the Central Government. As can be seen from the proceedings of the Board dated 22-4-1988, it is expressly stated that after the exchange of views amongst the members, each of whom is an expert on the subject-matter, they agreed that ban should be imposed on corticosteroids with other drugs for use in asthma also. The Board has clearly stated that the use of corticosteroids with other drugs for use in asthma therapy caused more harm than good to the patients as it was a long term therapy. The formation of that opinion is preceded not only by consultation with experts, but also consideration of the opinion of the Committee. We are of the view that the advise tendered by the Board consisting of experts, who have special knowledge and experience in respect of different kinds of drugs their special knowledge and experience and the opinion formed after due exchange of views in itself ensures that the opinion given by the Board has a rational basis and constitutes sufficient basis for the Central Government for satisfying itself to issue the impugned notification in exercise of its power under S. 26-A of the Act. When such a high powered body consisting of experts arrive at such a decision after due consideration and exchange of views, we have to presume that the advise tendered is good in the absence of any basis to characterise it as arbitrary. In this case there is no material or basis to discard the opinion formed and the advise tendered by the Board. Therefore, as the Central Government has exercised its power under Section 26A of the Act on the advise tendered by the Board, we are unable to agree that the impugned notification is illegal, arbitrary or violative of Articles 14 and 19(g) of the Constitution. The notification has a rational basis and has a clear nexus with the object sought to be achieved by Section 26A of the Act, and it also amount to a reasonable restriction in the interest of the general public as permitted by clause (6) of Article 19."74.

Section 59 of the Mines Act, 1952 prescribes consultation with the mining boards.75 Draft regulations are first referred to every mining board concerned with the subject dealt with by the regulations and its opinion is sought about the expediency of making the same and suitability of their provisions. The draft regulations are then subject to the procedure by way of "previous publication". It is further laid down that the minimum time-lag between the date of publishing the draft regulations and the date when the same are to be taken into consideration for finalisation is to be three months. In this way, an effective participation of the interests affected by the proposed rules is secured in the rule-making process. In Banwari Lal Agarwalla v. Bihar,76 the procedure laid down in Section 59 has been held to be mandatory; regulations made in contravention of this stipulation would not be valid, but constitution of the mining boards has been held to be directory. Some statutes even go to the extent of conferring power to initiate and frame rules on the concerned interests themselves. For example, under Section 9-A of the Forward Contracts (Regulation) Act, 1952, a "recognised association" is itself entitled to make rules with respect to several matters mentioned there. These rules become effective on being approved by the Central Government which can approve the rules with such modifications as it deems fit. At times, a statutory provision may say that the government may consult such bodies or associations as it may think fit.77 While such a provision stipulates some kind of consultation, it does not specify what interests should be consulted and leaves this matter to the absolute discretion of the government. The Drug (Price Control) Order, 1979, made under the Essential Commodities Act, lays down a procedure for fixation of drug prices. The procedure is in two stages: (1) the government may fix the drug process after making such inquiry as 'it thinks fit'; (2) a person aggrieved by a price-fixation order may seek review of the order by the government. Each stage may be regarded as designed to promote some sort of consultation

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between the drug manufacturers and the government in the matter of fixation of prices. Both at the inquiry stage as well as the review stage, the drug manufacturers may feed the government with necessary and relevant information having a bearing on the cost of production of drugs and other related matters as laid down in the Drug Order itself. The government of India issued an order fixing drug prices. The drug manufacturers applied for a review of the order by the government, but before the review could be completed, they moved a writ petition before the Supreme Court challenging the prices fixed. Their main contention was that the 'enquiry' as well as the 'review' both were quasi-judicial in nature to which the principles of natural justice ought to have been applied but were not applied.78 In Cynamide,79 the Court refused to interfere and rejected the manufacturers' contentions. Commenting on the procedure laid down in the Drug Order, the Court pointed out that price-fixation was a legislative function and, accordingly, neither the 'inquiry' nor the 'review' could be regarded as a quasi-judicial proceeding. The Court explained that the formula "such inquiry as it thinks fit" usually denotes that while the inquiry was a condition precedent to the price-fixing exercise, the nature and extent of the enquiry would be within the discretion of the concerned authority. The inquiry would not be open to challenge on the ground that it was not as full as it might have been. The provision is only an 'enabling' one and it enables the concerned authority to obtain relevant information having a bearing on the price-fixing from any one and from any source, not necessarily only the manufacturers. The provision does not vest any right in any one. The drug manufacturers could not therefore claim any notice or hearing by the government in the matter of price-fixing of drugs. As regards the 'review' procedure, the Court pointed out that it was difficult to fit it into any stereotype-legislative, administrative or quasi-judicial. The Court characterised it as being "in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislative body at the instance of an aggrieved person." The Court refused to interfere in the matter in the instant case and directed the manufacturers to seek a review of the drug prices from the government. The government was asked to furnish to them the relevant information as to basis adopted by it for fixing prices. As regards the complaint of the drug manufacturers that the government was taking enormous time in reviewing the matter while time was the essence of the matter, the Court directed the government to complete the review within six months. (b) Previous Publication Coming to the actual statutory provisions requiring consultation with affected interests in rule-making, at times a statute may use the following formula: "The power to make rules shall be subject to the condition of previous publication." For example, S. 133(1) of the Motor Vehicles Act, 1939 ran as follows: "Every power to make rules given by this Act is subject to the condition of the rules being made after previous publication." The effect of the term 'previous publication' is defined in S. Section 23 of the General Clauses Act, 1897. The procedure by way of 'previous publication' includes the following several steps: (i) the rule-making authority shall publish a draft of the proposed rules for information of the affected persons; (ii) the publication shall be made in such manner as the authority deems sufficient; (iii) there shall be published with the draft rules a notice specifying a date on or after which the draft will be taken into consideration; and (iv) the authority shall take into consideration, while finalising the rules, any objections or suggestions which may be received by it. The objections are also to be considered by the authority giving sanction, approval or concurrence to the rules made by another authority. Finally, S. 23(5) says that the publication in the official gazette of a rule purporting to have been made in exercise of rule-making power after previous publication "shall be conclusive proof that the rule has been duly made".80 The technique of previous publication defers the effectuation of the rules for sometime, and gives an opportunity to the interested parties to have their say in the matter. The main object and purpose of publication of draft rules is to give an opportunity to affected persons to object to all or any of the proposed rules or make suggestions to alter or modify them. The condition of 'previous publication' is not to be found in many Indian statutes.81 There is no rational basis for including or excluding the formula in statutes. "While statutory rules and notifications vitally affecting private rights have been made without previous publicity, instances may be cited when the procedure has been used for matters of least importance."82 Such capriciousness is clearly discernible from the fact that while the requirement of previous publication was to be found for rules to be made under the Income Tax Act, 1922, it was dropped, without any apparent reason, in its successor the Income Tax Act, 1961. Even under one and the same statute, where rule-making power may be interspersed over several sections, rule-making under some provisions may be made subject to

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'previous publication' while rule-making under other sections may not be so subject. A typical example of this anomalous situation is furnished by Tulsipur.83 Under S. 39(3)of the U.P. Town Area Committee Act, 1914, the power to make rules under the Act was subject to the requirement of 'previous publication'. Under S. 3, the State government could by a notification extend the area of a notified area committee. This power was not subjected to 'previous publication' under the Act. The government extended the limits of the Tulsipur Town Area. The plaintiff whose factory now fell within the municipal boundaries and who was thus asked to pay octroi duty, challenged the notification on the ground that no opportunity was given to the affected persons to represent against extending the limits of the committee. The Supreme Court refused to read any such requirement in S. 3 arguing that no hearing could be claimed as a matter of natural justice when the Administration is performing a legislative function.84 Making of a declaration under S. 3 was held to be "legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration." This is an anomalous situation as the extension of the Act to a new area is a much more basic and crucial function, and affects the residents of the new area much more vitally than making of rules under the Act and yet hearing is given while making rules but not while extending municipal limits. Because of the several advantages flowing from 'consultation', it is advisable that the procedure by way of 'previous publication' be used as a general norm of rule-making as far as possible. If, however, in a situation it does not seem feasible to do so owing to the urgency of the matter, or in public interest, provision may be made authorising the rule-making authority to dispense with the procedure of previous publication after recording reasons for taking such a step, or a shorter period may be prescribed for filing objection. "Consultation of interests" should be the normal rule rather than the exception which it is at present. The government could avoid many pitfalls arising out of ignorance through consultation with the people in the know of things.85 The present procedure of "pre-publication" needs to be rationalised in several respects. There is no minimums time-lag prescribed between publication of the draft rules and their final making. If the rule-making agency is so minded, it can make the procedure of consultation a sham by prescribing a brief interval between the two crucial dates making it extremely difficult for the interested parties to file their views. In many cases, the time allowed for filing views is less than a week and sometimes the gazette containing the draft rules is available only after the date fixed for inviting comments has expired.86 The Karnataka High Court has ruled that the persons likely to be affected by the promulgation of the rules must have reasonable opportunity to go through the draft rules and file their objections and suggestions.87 Where only four days were given for filing objections and suggestions, there was really a denial of reasonable opportunity to persons likely to be affected thereby. "The opportunity to be afforded should be adequate and reasonable and should not be a sham, nominal or illusory." The efficacy of the procedure of "previous publication" very much depends on whether the time allowed is sufficient to enable the interested persons to submit their considered views in the matter. It is, therefore, necessary to amend the law and prescribe a period of at least 30 days for the persons to send their comments.88 Another weakness of the procedure is the absence of a prescribed method of publication of the proposed rules. Too much now depends on the discretion of the rule-making authority for publication is to be in such manner as the rule-making authority deems to be sufficient. Another snag of the procedure of the "previous publication" is that under Section 23(5) of the General Clauses Act, 1897, publication of the rules in the gazette is conclusive proof that the rules have been duly made. As has already been seen, the implications of the conclusive evidence clause are not very clear.89 The judicial view seems to be that such a clause can immunize only minor deviations from the prescribed procedure, but no major or fundamental step in the prescribed procedure can be ignored. It is not clear what elements in the procedure prescribed by way of previous publication are to be regarded as fundamental, and what elements of this procedure can the rule-making authority ignore without risking the validity of the rules made. The whole procedure as laid down in the General Clauses Act for previous publication is the product of the pre-Independence era and is, therefore, out of date in the context of modern thinking and democratic era. It is suggested that the relevant clause should be amended so as to take care of the comments made here and the conclusive evidence clause dropped from there so that the courts may declare the rules ultra vires if any of the prescribed elements of the procedure is ignored by the rule-making authority.

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The Lok Sabha Committee on Subordinate Legislation has taken note of long delays in several cases (sometimes as much as 2 to 4 years) between the publication of the draft rules and the final publication of the rules. This reduces the efficacy of consultative procedure. The Committee has recommended that the final publication of the rules should be within one year of the publication of the draft rules.90 (c) Pre-publication Procedure and the Courts The term 'Pre-publication' is being used here in a generic sense to denote publication of draft rules with a view to invite objections thereto. This is more general than the technical procedure laid down by way of 'previous publication'. The requirement of 'pre-publication' is contained in a number of Central and State statutes. Generally speaking, the courts tend to regard the condition of pre-publication of draft rules prescribed in a statute as mandatory,91 because pre-publication is a prelude to consultation with the concerned interests. If, however, the requirement of pre-publication has been substantially complied with, then deviations from some minor elements of prescribed procedure which may be characterised as directory, may not invalidate the rules made. A few examples may be cited from the case-law to illustrate this point. In Rajnarain'92 a provision authorising affected persons to file objections against any municipal taxation measure, was regarded a matter of 'policy', and so a matter lying within the power of the legislature and not of the executive to tamper with. In Lachmi Narain,93 the requirement of three months' notice to effect any modification in the schedule annexed to the sales tax law was held to be mandatory, as well as a matter of 'legislative policy.' One of the reasons favouring this judicial view was that it was necessary that the dealers and others likely to be affected by the proposed amendment should have sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. But then there exist some judicial pronouncements where the courts have exhibited an indulgent attitude towards procedural lapses by the Administration in the matter of following the statutorily prescribed consultative procedure. One such case is Berar Swadeshi Vanaspati v. Shegaon Municipality.94 Under S. 67 of the C.P. and Berar Municipalities Act, 1977, whenever a municipal committee proposed to levy a tax, it would pass a resolution at a special meeting and publish it. Any inhabitant of the municipality could object to the proposed tax and the committee was bound to take the objection into consideration. Thereafter, the committee could seek the sanction of the State government to its proposal. After its sanction, the government could notify the tax. Under S. 67(8), a notification of the imposition of a tax under S. 67 "shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act". In the instant case, levy of an octroi duty by the committee was challenged by some ratepayers on the ground that the committee did not consider the objections on merit, and since that was one of the essential steps for the validity of the imposition of the tax, S. 67 had not been complied with and so the imposition was invalid. The High Court found that the non-consideration of objections was an error in procedure, but it rejected the plea of invalidity by invoking the "conclusive evidence" clause contained in S. 67(8). On appeal, the Supreme Court agreed with the High Court view. The Court observed: "The language of subs. (8) lends support to this view. It provides that the issuance of the notification imposing a tax shall be conclusive evidence that the tax had been imposed in accordance with the provisions of the Act."95

Such judicial attitude seems to be inconsistent with the Rajnarain approach where consultative procedure was placed on a very high pedestal. The Supreme Court there characterised such a procedure as a matter of legislative policy with which the Administration could not trifle. If consultation is given such a fundamental importance, and it should be so treated as it promotes democracy, then its non-compliance cannot be cured by the 'conclusive evidence' clause which should cover only minor deviations from procedure. In Raza Buland Sugar Co. v. Rampur Municipality,1 a statutory provision requiring a municipality to publish draft rules imposing a tax with a view to consult the inhabitants of the area was held to be mandatory for "the purpose of such publication obviously is to further the democratic process and to provide a reasonable

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opportunity of being heard to those who are likely to be affected by the tax before imposing it on them." In the instant case, the statute required pre-publication of a resolution passed by a municipality in a newspaper published in Hindi. The municipality published the Hindi text of its resolution in a paper published in Urdu. It was contended that this invalidated the resolution when finally adopted by the municipality as the mode of publication as prescribed in the Act was not strictly complied with. The Supreme Court rejected the argument saying that so long as the publication is made in substantial compliance with the manner provided in the Act, that would serve the purpose, as the manner of publication is only directory. In the instant case, the paper in which the resolution was published had a much wider circulation than the paper published in Hindi which came out very irregularly. The court concluded that there was substantial compliance with the mode of publication stipulated in the statute and the resolution was validly passed. There was also the "conclusive evidence" clause which was held to cure such a defect. In Sitapur Municipality v. Prayag Narain,2 the concerned municipality imposed a water tax and this was challenged on the ground that not all the prescribed procedural requirements regarding pre-publication of the draft proposal and rules were observed. There were several irregularities in the procedure followed by the municipality in the pre-publication stage. But the Supreme Court held the levy valid saying that the procedural defects were not of a fundamental character and no substantial prejudice had been caused thereby to the inhabitants of the municipality because the object of the pre-publication, viz., to inform the inhabitants of the proposal so that they could file their objections to it had been fully achieved. The inhabitants had full opportunity to raise objections to the proposed tax.3 Above all, the Court also invoked the 'conclusive evidence' clause found in the relevant statute.4 On the other hand, in some later cases, a stricter judicial attitude may be discerned as regards pre-publication. In Govindlal,5, the Director of Agricultural Marketing was authorised by the relevant statute to issue a notification to regulate purchase and sale of agricultural produce in any area. Before issue of final notification, a draft notification had to be pre-published in the official gazette and as the statute said, it "shall" also be published in Gujarati in a newspaper having circulation in the area concerned. The Director could issue the final notification after considering any objection or suggestion received against the proposed notification. The question was whether prepublication of the draft notification in the gazette would be sufficient or whether publication in the newspaper was also required. The Court ruled that the publication of the draft notification in Gujarati in a local newspaper was mandatory and not directory. Mere publication in the gazette was not adequate to communicate the director's intention to those who would be vitally affected by the proposed notification. It is a matter of common knowledge that publication in a newspaper attracts greater public attention than mere publication in the gazette and that is why the legislature has directed publication of the draft notification in Gujarati in a newspaper so that those who would be vitally affected by the proposed notification could offer their objections and suggestions. The Court emphasized that the violation of the pre-publication provision "is likely to affect valuable rights of traders and agriculturists because in the absence of proper and adequate publicity, their right of trade and business shall have been hampered without affording to them an opportunity to offer objections and suggestions, an opportunity which the statute clearly deems so desirable." It may be noted that the statute in question did not contain the "conclusive evidence" clause and this may have affected judicial attitude to some extent. In Bhau Saheb Tavnappa v. State,6 part of the pre-publication procedure was held to be directory and part mandatory. The provision in question was in two parts: (i) the notification 'may' be published in the language in the area in any newspaper circulating therein; (ii) the notification 'shall' be published "in such other manner as in the opinion of the State government is best calculated to bring to the notice of the persons in the area the intention aforesaid." The provision further said that the notification "shall invite" suggestions or objections from the public to be considered by the government. The first part was held to be directory, but the second part was held to be mandatory. As the latter part was not complied with, the final notification was held invalid and inoperative. In holding this part mandatory, the Court resorted to two arguments: (i) the word 'shall' and not 'may' was used in the rule laying down the procedure; (ii) it was important that the people ought to know what the government proposed to do so that they could file objections against it. It was an important procedural safeguard. Under the Orissa Municipal Act, 1950, the State government has power to declare an area as a 'notified area' to make provision for municipal services therein. But before issuing such a notification, the government has to publish it in the official gazette and also publish "at least in one newspaper circulating in the area" a proclamation announcing its intention to make the area a 'notified area' and inviting objections to the proposal. In the instant case, the proclamation proposing to make certain area

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into a notified area was published in English in a local Oriya newspaper. The said statutory provision does not prescribe the language in which the proclamation is to be published in a local newspaper, but in State of Orissa v. Sridhar Kumar,7 the Supreme Court ruled that publication of the proclamation in English in a local newspaper did not serve the statutory requirement, for, "having regard to the object with which a proclamation is required to be published ... it must be published in the local language of the area in which the newspaper circulates ... To reach out to the people, it must be published in a language with which they are familiar". The notification issued by the government was thus quashed. The proclamation was faulted on another ground as well. The statutory provision in question says that the State government may declare that it is necessary to make administrative provision "for all or any of the purposes" of the Act for the area proposed to be declared as a notified area. The proclamation in question was challenged as being vague as it did not specify whether all the purposes of the Act or only some of them, and if so which, were sought to be the subject of administrative provision in relation to the area. Accepting the contention, the Court emphasized that the statutory provision in question "specifically envisages that when issuing the notification contemplated therein the State government must decide whether administrative provision needs to be made 'for all or any of the purposes' of the Act in the area proposed to be notified. Unless the proposal formulated in the notification .. is precise and clear and indicates with sufficient accuracy the area intended to be notified, and further indicates whether the administrative provision is proposed for all the purposes of the Act or only some of them, and if only some of them then which of them, it will not be possible for the residents to properly avail of the right conferred on them by the statute to make their objections to the proposal of the State government." The proclamation in question was held to be vague, ambiguous and incomplete as it did not say whether the government proposed to make administrative provision in- the proposed area for all or some of the purposes of the Act. "It is not the kind of notification which will ensure that the intention behind making it and calling for objections will be served", said the Court. The Sridhar pronouncement shows that the Supreme Court attaches great importance to effective consultation of the people by the Administration in those matters which vitally affect them and where legislature statutorily prescribes a consultative process. In the instant case, it is true that constituting an area into a notified area is to the benefit of the people in the area as it results in provision of civic amenities and conveniences to the residents of the concerned area but, at the same time, it also results in imposition of taxes on them, and hence consultation with them must be an effective consultation.8 The courts do seek to ensure that the prescribed consultative procedure is followed by the Administration strictly so that there is effective consultation between the rule-making authority and the interests affected. A few examples may be cited here as to how the courts handle the question of observance of the consultative procedure. The Punjab Towns Improvement Act prescribes the procedure for framing of scheme by improvement trusts. An important element in the procedure is inviting objections, and consideration of these objections to the draft scheme. In the instant case, objections received against the draft scheme were not considered at all and the scheme was finally notified. S. 42(2) of the Act says that the scheme as notified "shell be conclusive evidence that the scheme has been duly formed and sanctioned." Nevertheless, the High Court ruled that the non-consideration of the objections could not be protected by the 'conclusive evidence clause.' The Court went on to state that this non-compliance with the procedure amounted to "colourable exercise of power", even to 'mala fides', which vitiated the procedure of framing of the scheme and this could not be protected by the 'conclusive evidence' clause.9 Recently, the Supreme Court has applied the provision regarding consultative procedure very strictly. S. Section 44 of the Delhi Development Act, 1957, requires that every public notice given under the Act "shall be in writing" over the signature of the Secretary to the Delhi Development Authority and "shall be widely made known in the locality to be affected thereby affixing copies thereof in conspicuous public places within the said locality or by advertisement in local newspaper of by any two or more of these means, and by any other means that the Secretary may think fit." The Supreme Court interpreting the provision in Syed Hasan Rasul Numa v. Union of India10 stated that the provision provides for three methods of publicity of the notice, viz.: (1) affixing its copies in conspicuous public places within the said locality; (2) publishing the same by the beat of drum; (3) advertisement in local newspapers. Of these, the authorities must follow any two methods. "This is mandatory. There is no discretion in this regard." Discretion has been left to the Secretary to follow more than the two methods. "It is also discretionary to follow any other means of publication that the Secretary may think fit." The Court stated: "This appears to be the only reasonable and sensible view to be

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taken by the overall structure of the section." The Court noted that S. 44 is not happily worded. The Court rejected the restrictive interpretation put on the provision by the government that only one mode of publicity is adequate. The Court adopted a liberal interpretation favouring wide publicity of the notice regarding the proposal to make modification in the Delhi Master Plan and inviting objections to the proposed change. The Court also insisted that the affected persons have a right to file their objections within the specified time, and that they have the further right to have the objections considered by competent authorities. The Court observed in this connection: "In order to effectuate these rights, the prescribed means of publication must be faithfully followed giving the persons clear notice as specified in the statute. The provision providing such notice to persons whose rights or interests are likely to be impaired must always be considered as mandatory. As otherwise, it would defeat the very purpose of giving public notice inviting objections and suggestions against the proposed action."

In the instant case, the notice was published in several newspapers. But that was only one of the three modes of publication provided under S. 44. This 'apparently fell short of the mandatory requirements of S. 44" Since the mandatory requirements of S. 44 had not been complied with, the notice in question had no validity and the action taken pursuant thereto had also no validity. What had happened in the instant case was that the petitioners having come to know of the notice late, sent their objections after the last date fixed for the purpose, and these objections had not been considered. Thus, there was prejudice to the petitioners. Clarifying the position, the Court observed: "We do not however, mean to say that the appellants have a right to have their belated objection considered by the authorities. If there was valid publication of the notice as prescribed under the law, they ought to have filed the objection within the period specified in the notice. They could not file their objection after 'he prescribed period and complain that they have been prejudiced by non-consideration of the objection. The prejudice would be presumed only when the objection filed within the prescribed period is not considered by the competent authorities."

It is clear from the tenor of the above pronouncement that the Court attached great importance to the consultative procedure prescribed by the parent statute and insists that the same be followed meticulously. If not so followed, the resultant order would be held to be invalid. (d) Legitimate Expectation Lately, however, the courts have developed a novel doctrine in public law, viz., a duty to consult may arise out of 'legitimate expectation' based either on a promise by the rule-maker11 to consult the affected persons or by an established practice of consultation.12 The doctrine has been discussed fully later13 but one case may be mentioned here to give some idea of the nature of the doctrine. In England, Lord Chancellor made certain regulations fixing the fees payable to barristers under the Legal Aid Act. The court granted permission to the chairman, Bar Council, to seek a declaration challenging the regulations on the ground that a decision was taken by the Lord Chancellor without consulting or negotiating with the bar despite the expectation that such consultation would take place. There was hearing on the application in the court, but the court did not have to decide the matter finally as the Lord Chancellor agreed to discuss the matter with the bar. The doctrine of 'legitimate expectation' seems to have been established now in the rule-making sphere requiring the rule-maker to consult the affected interests in certain circumstances.14

1 Supra, Chapter V. 2 For a detailed discussion of this topic, see, M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Public Law 33, 152. 3 Lok Sabha rule 70; Rajya Sabha Rule 65.

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4 See under heading: Parliamentary Scrutiny Committees, infra this chapter. 5 See, First Report (I L.S.), 1 (1954); Second Report (III L.S.), 1 (1954). 6 Directions 103A of the Speaker in Directions by the Speaker of Lok Sabha, 66 (III ed. 1980). 7 GARNER, Administrative Law, 60 (1985). 8 See REID, Parliament & Delegated Legislation in NETHERCOTE, Parliament & Bureaucracy, 149-168 (1982). 9 Administrative Law by WADE & FORSYTH, Eighth Edn., p. 878. 10 Constitutional and Administrative Law by STANLEY DE SMITH and RODNEY BRAZIER, 7th Edn., as cited in Quarry Owners' Assn. v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 47: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 11 On laying procedure and its advantages, see, Thanmal v. Union of India, AIR 1959 Raj 206 [LNIND 1959 RAJ 195] [LNIND 1959 RAJ 195] [LNIND 1959 RAJ 195]. Members can raise, within the limits of parliamentary procedure, such discussion as is possible over the rules and criticise illegal or extravagant use of rule-making power. Members can also press for the repeal of the statutory provision under which obnoxious rules are made and also revoking of those rules: Fifth Report (R. S.) 5 (1968). Also see, Hukam Chand v. Union of India, AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]: (1972) 2 SCC 601; JAIN, Cases, Chapter IV, 198, and Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC 196: 1979 Crlj 927, where the Supreme Court has referred to the various forms of laying procedure. 12 Forty-fifth Report (R.S.), 17-18 (1981). 13 Fourteenth Report (V L.S.), 4 (1974); Eighth Report (VII L.S.), 3 (1981). This has now been done. Parliament has enacted the Delegated Legislation Provisions (Amendment) Act, 1985, incorporating the standard formula of laying and annulment of delegated legislation in a number of old central statutes. This is the second such legislation. Earlier, the Delegated Legislation Provisions (Amendment) Act, 1983, had likewise amended fifty Central Acts introducing a laying provision in each of them. 14 Tenth Report (V L.S.) 31 (1974). 15 Twentieth Report (VI L.S.) 3-19 (1979). 16 See, infra, next Chapter. 17 Twenty-first Rep. (VI L.S.), 7-8 (1979). 18 Second Rep. (VII L.S.), 7 (1980). 19 Sixth Rep. (VII L.S.), 35-36 (1981). 20 Sixth Rep. (VII L.S.), 35-36 (1981). 21 Direction 103, Directions by the Speaker Lok Sabha 65 (3rd ed., 1980). 22 See, The Committee on Subordinate Legislation, 25 Jl. of Parl. Information, 482, 489, note 29(1979). 23 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], para 45: AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 24 Union of India v. National Hydroelectric Power Corporation, Ltd., (2001) 6 SCC 307 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459], 309 (para 8): AIR 2001 SC 2512 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459]. 25 R. v. Secretary of State for Social Services, ex p. Camden London Borough Council, (1987) 1 WLR 819. 26 Bailey v. Williamson, (1873) 8 QB 118. Also, C.B. BOURNE, Delegated Legislation, 28 Can BR 791 (1950); 66 LQR 299 (1950); ALLEN, Law and Orders, 144 (1985). 27 Jan Mohammad Noor Mohammad v. State of Gujarat, AIR 1966 SC 385 [LNIND 1965 SC 194] [LNIND 1965 SC 194] [LNIND 1965 SC 194]: 1966 (1) SCR 505; Krishna Khanna v. State of Punjab, AIR 1962 Punj 132; State v. Karna, 1973 Crlj 1871; Mathura Prasad Yadav v. Inspector General, Rly. Protection Force, Rly. Board, New Delhi, 1974 Lab LC 1177. 28 AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: 1979 Crlj 927: (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]. See also State of M.P. v. Hukum Chand Mills Karamchari, (1996) 7 SCC 81, 82 (paras 3 and 5); D.K. Krishnan v. Secretary, Regional Transport Authority, AIR 1956 AP 129 [LNIND 1955 AP 153] [LNIND 1955 AP 153] [LNIND 1955 AP 153]: 1956 Andh LT 127: 1956 Andh WR 142; I.T.C. Bhadrachalam v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 656 (para 29); JAIN, Cases, Chapter V, 272.

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29 See, for instance, Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 SCJ 214; Express Newspapers v. Union of India, AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]: 1961 (1) LLJ 339: 1959 SCR 12 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25]; In Re Kerala Education Bill, AIR 1958 SC 956: 1959 SCR 995. 30 Also see, Chapter V, under Procedural Ultra Vires. 31 Jagadale & Sons v. State, AIR 1990 Kant 262; JAIN, Cases, 280. 32 PEARCE, Delegated Legislation, 105-6 (1977). 33 Bank of India v. O.P. Swarnakar, (2003) 2 SCC 721 [LNIND 2002 SC 817] [LNIND 2002 SC 817] [LNIND 2002 SC 817], 767 (para 124): AIR 2003 SC 858 [LNIND 2002 SC 817] [LNIND 2002 SC 817] [LNIND 2002 SC 817], following Jan Mohd. Noor Mohd. Bagban v. State of Gujarat, AIR 1966 SC 385 [LNIND 1965 SC 194] [LNIND 1965 SC 194] [LNIND 1965 SC 194]: (1966) 1 SCR 505 and Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: (1979) 2 SCC (Cri) 422. 34 Supra, Chapter V, notes 128-133. Also see, JAIN, Cases, Chapter V, Sec. B. Also see, Indian Express, Newspapers (Bombay) Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 541: (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]. 35 ALLEN, Law and Orders, 135. Also see, Report of the Davies Committee (1953). 36 Lok Sabha Rules 317-322; Rajya Sabha Rules 204-212. 37 C.M.P. Report, 11, 62-64, 68-50; supra, Chapter IV. Also see, GRIFFITH, Delegated Legislation: Some Recent Developments, 12 Mod LR., 297-306 (1946). 38 FOULKES, Administrative Law, 86 (1990); MCGOVERN, The Report of the Joint Committee on Delegated Legislation, 36 Mod LR 64 (1973); HAYHURST AND WALLINGTON, The Parliamentary Scrutiny of Delegated Legislation, [1988] PL 547. 39 See, The Committee on Subordinate Legislation, 25 Jl. of Parl. Inf., 482, 489 (1979). 40 Rule 320 of the Lok Sabha Rules. 41 For a discussion on the working of the Lok Sabha committee, see M.P. JAIN, Parliamentary Control of Delegated Legislation, 1964 Public Law 33, 152 (1964); The Committee on Subordinate Legislation, 25 Jl. of Parl. Inf., 482 (1979); First Rep. (VII L.S.), 28-35, 4551(1980). 42 Second Rep. (III L.S.), 1-7 (1963); Fifth Rep. (R.S.), 6 (1968); Ninth Rep. (R.S.), 10 (1971); Sixth Rep. (IV L.S.), para 19; Tenth Rep. (R.S.), 16 (1971). 43 Even as late as 1978, the Lok Sabha Committee on Subordinate Legislation indicated its unhappiness either for not laying the rules or delay in the matter: Twelfth Rep. (VI L.S.), 25 (1978); Fourteenth Rep. (VI LS), 18 (1978). 44 There are now two Committees on Papers Laid on the Table of the two Houses to examine delays in laying of papers. The Lok Sabha Committee was established in 1975 and the Rajya Sabha Committee in 1982. However, as a matter of practice, these committees are not concerned with the laying of rules. 45 Seventy-First Report (R.S.), 37 (1987). 46 Fourth Rep. (II L.S.), 4 (1958). Also see, supra, Chapter V. 47 Fourth Rep. (III L.S.), 7 (1965); Sixth Report (V L.S.), 12 (1973); Eleventh Report (V L.S.), 40 (1974). 48 Twenty Sixth Report (VII L.S.), para 29. 49 First Rep. (II L.S.), 3 (1957); Second Rep. (II L.S.), 2 (1957); Third Rep. (III. L.S.), 6 (1964); Thirteenth Rep. (R.S.), 10 (1972); Sixth Rep. (VI L.S.), 26 (1978). 50 Supra, Chapter V. 51 Fourth Rep. (R.S.), 1 (1968). Again, the Committee of Lok Sabha has emphasized that the language used in the rules "should be clear and unambiguous". The Committee has also objected to legislation by reference in some rules. Rules should be "self contained": Twenty-third Report (VIII L.S.), 16 (1988-89). 52 See, for instance, Twelfth Report (V L.S.), 13 (1974); Fifteenth Report (R.S.), 46-47 (1973); Eleventh Report (VI L.S.), 28 (1978); First Report (VII L.S.), 8 (1980). 53 Ninth Report (V L.S.) 34 (1973). 54 Ninth Rep. (R.S.) 1 (1971); ibid.

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55 Sixth Rep. (VII L.S.) 10 (1981). Also Eleventh Rep. (VI L.S.) 9-10 (1978). 56 Twentieth Report (V L.S.) 10 (1976). 57 Eleventh Rep. (VI L.S.) 9-10 (1978); Fourth Rep. (VII L.S.) 7 (1980); Forty-fifth Rep. (R.S.) 19 (1981). 58 In 1973, the House of Commons set up a Standing Committee to consider the merits of any statutory instrument and draft statutory instrument which may be referred to it. This committee is in addition to the Joint Scrutiny Committee mentioned above, supra, note 32. According to Yardley: "In recent years this new committee has done more and more work, serving a valuable function in debating issues of policy which have always been outside the purview of the various scrutiny committees." This new committee has a majority of government members. "What is achieved is that merits as well as form are ventilated in a committee of Commons, thus guarding against unforeseen errors and blunders." See YARDLEY, Principles of Administrative Law, 24 (1981). 59 Seventy First Report (Rajya Sabha), 16. 60 Twelfth Report (VI L.S.), 6-7 (1978). 61 First Report (IV L.S.), 13 (1968). 62 For instance, see, First Report (IV L.S.), 5 (1968); Seventh Report (V LS.), Nineteenth Report (V L.S.), 21 (1976); Twelfth Report (R.S.), 9 (1976); Thirty-first Report (R.S.), 16 (1979). 63 Sixth Report (V L.S.), 2-3 (1973). 64 Third Report (III L.S.), 2 (1964); Eighth Report (V L.S.), 2 (1973). 65 Thirteenth Report (VI L.S.), 11 (1978); Eighth Report (VII L.S.), 31 (1981). 66 Third Report (III L.S.), 2 (1964); Seventh Report (V L.S.), 11 (1973); Eleventh Report (VLS.), 17 (1974); Seventeenth Report (RS.), 9 (1974). 67 Second Report (III L.S.) (1964). 68 This has generally happened in case of rules imposing fees or some other charges. See, supra, Chapter V; M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Pub Law at 158. An example in the non-financial area is R. 22 of the Minerals Conservation and Development Rules, 1958, requiring every owner, agent or manager of a mine to permit students of approved mining and geological institutions to acquire practical training in mines operated by them: Fourth Rep. (II L.S.), 2 (1958). 69 For instance, Cl. 22 of the Fertilizer Control Order authorising the State Governments to fix different fees for different classes of dealers for the grant of a duplicate licence or certificate of registration: Fourth Rep, (II L.S.), 3 (1958). 70 Apart from the rules being unfair on account of procedural grounds, the Committees have at times found them unfair on substantive grounds as well. See M.P. JAIN, supra, note 62 at 155-57. An example of substantive unfairness is the rule of a Cantonment Board which required water meters supplied by consumers at their cost to become the property of the board: Second Rep. (II L.S.), 3 (1957). 71 Fifteenth Rep. (VI L.S.), 16 (1978). 72 First Rep. (IV L.S.), 15 (1968); Ninth Rep. (R.S.), 13 (1971); Tenth Rep. (R.S.), 14 (1971). Also see, supra, Chapter V. 73 See Eighteenth Report (V L.S.), 33 (1976); Fourteenth Report (R.S.), 40 (1973): Thirty-first Report (R.S.), 37 (1979). 74 Fifty-seventh Report (Rajya Sabha), para 116. 75 Para 5. 10, p. 31 (1987). 76 Infra, under Publication. 77 First Rep. (R.S.), 5 (1966); Seventh Rep. (IV L.S.), 4 (1970); Eleventh Rep. (VI L.S.), 5 (1978). 78 Twenty-Third Report (VIII L.S.), 4 (1988-89); see, infra, under consultation. 79 First Rep. (IV L.S.), 8 (1968); Eighteenth Rep. (VI L.S.), 3 (1979); Fifth Rep. (VI L.S.), 15 (1978). See also, infra, under Consultation of Interests. 80 For relevant extracts from this Act, see, JAIN, Cases, 331. 81 A statutory instrument is a document by which power of delegated legislation is exercised by Her Majesty in Council by an order in Council, or a minister by a statutory instrument. Each enabling Act now lays down whether the power of delegated legislation under it is to be exercised through a statutory instrument or otherwise. When the power is to be exercised through a

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statutory instrument then the provisions of the Statutory Instruments Act apply. See, ALLEN, Statutory Instruments Today, ALLEN, Statutory Instruments Today, (1955) 71 LQR. 490. 82 S. 2(1) of the S.I.A.; also see, infra. 83 S. 3(2). See, Regina v. Sheer Metatcraft Ltd., (1954) 1 QB 586. 84 However, in Johnson v. Sargant & Sons (1918) 1 KB 101, a pre SIA case, an order was not given any operation (it was a case of civil liability) as it was not known to any one in the trade. Perhaps, this rule of common law may apply still to delegated legislation falling outside the coverage of SIA. 85 Panama Refining Co. v. Ryan, 293 US 388, 434 (1935). 86 GRISWOLD, Government in Ignorance of Law, 48 Harv LR, 198 (1934); SCHWARTZ, Casebook, 267. 87 For relevant extracts from this Act, see, JAIN, Cases, 337. 88 Of course, there appears to be some scope for improvement in the publication of the Federal Register as suggested by some writers. Newman, Government and Ignorance--A Progress Report on Publication of Federal Regulations, 63 Harv LR, 929 (1950); Futor, Modernising Federal Regulation Publications, 21 Fed. BJ., 219 (1961). The situation, however, is much better in the U.S.A. than what prevails in India. 89 SCHWARTZ, Administrative Law--A Casebook, 267 (1988). 90 S. 552(a)(1) of the APA says: "Except to the extent that a person hag actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published." See, HUTTON, Public Information and Rule-making Provisions of the APA., 33 Temp. L.Q. 58 (1959-60); HAWKINS, A Note in 28 Wash. L.Q., 434 (1963). 91 See, for example, S. 63 of the Water (Prevention and Control of Pollution) Act, 1974. Also, S. Section 42 of the Industrial Finance Corporation Act, 1948, as originally enacted; S. 42 was later modified to provide for notification of the rules in the Official Gazette. 92 AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 Crlj 54: 1952 SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]. Also see, JAIN, Cases, Chapter V, Sec. D., 317. 93 AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: (1965) 1 Crlj 641: (1965) 35 Comp Cas 557. Also, JAIN, Cases, Chapter V, Sec. D., 319. 94 Narendra Kumar v. Union of India, AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375; Joint Chief Controller of Imports and Exports v. Aminchand, AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176]; State of U.P. v. Kishori Lal, AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500]: (1980) 2 SCC 8. Also infra. 95 In re Pesala Subramanyam, AIR 1950 Mad 308 [LNIND 1949 MAD 175] [LNIND 1949 MAD 175] [LNIND 1949 MAD 175]. 96 AIR 1962 SC 562 [LNIND 1961 SC 44] [LNIND 1961 SC 44] [LNIND 1961 SC 44]: 1961 (3) SCR 707. 97 On pre-publication, see, infra, in this chapter. 98 Govindlal v. Agricultural Produce Marketing Committee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: (1975) 2 SCC 482: 1975 Crlj 1993. 1 Shakoor Hasan v. Emperor, AIR 1944 Nag 40; Leslie Gwilt v. Emperor, AIR 1945 Bom 368; Baboolal Rajulal v. Emperor, AIR 1945 Nag 218. 2 State of M.P. v. Ram Raghubir Prasad, AIR 1979 SC 888 [LNIND 1979 SC 102] [LNIND 1979 SC 102] [LNIND 1979 SC 102]: (1979) 4 SCC 686. 3 See, Harla v. State of Rajasthan, AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 SCR 110: 1952 Crlj 54 and State of Maharashtra v. M.G. George, AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: (1965) 1 SCR 123: 1965 (1) Crlj 641. 4 Govindlal v. Agricultural Produce Marketing Coimmittee, AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]: 1975 Crlj 1993: (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300]. Also see, JAIN, Cases, Chapter V, Sec. D., 322. 5 See, infra, on 'Pre-publication', in this chapter. 6 In another context, the Supreme Court has said of publication in the official Gazette that its "publicity value is by no means great": V.G. Row v. Madras, AIR 1962 SC 201 [LNIND 1961 SC 284] [LNIND 1961 SC 284] [LNIND 1961 SC 284].

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7 Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 [LNIND 2002 SC 396] [LNIND 2002 SC 396] [LNIND 2002 SC 396], 150 (para 39): AIR 2002 SC 2322 [LNIND 2002 SC 396] [LNIND 2002 SC 396] [LNIND 2002 SC 396]. 8 CIT v. Pearl Mech. Engg. & Foundry Works (P.) Ltd., (2004) 4 SCC 597 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506], 603 (para 6): AIR 2004 SC 2345 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506]. 9 K. Dayanandalal v. State of Kerala, (1996) 9 SCC 728 [LNIND 1996 SC 1187] [LNIND 1996 SC 1187] [LNIND 1996 SC 1187], 733 (para 10). 10 AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]: (1987) 1 SCC 658. Also see, JAIN, cases, Chapter V, Sec. D., 327. 11 (1998) 9 SCC 693, 695 (para 5). 12 On 'conclusive evidence' clasue, see, supra, Chapter V. 13 According to the Hindu tradition, the waters of the Ganga purify, cleanse the sins and remedy all insufficiencies. Therefore, the analogy is that like the Ganga, this clause would cure and remedy all deviances from the prescribed procedure. But, as the discussion on the clause would show, this is taking too broad a view of such a clause which has not been propounded earlier. 14 Sonik Industries, Rajkot v. Rajkot Municipality, AIR 1986 SC 1518 [LNIND 1986 SC 101] [LNIND 1986 SC 101] [LNIND 1986 SC 101]: (1986) 2 SCC 608. Also see, JAIN, Cases, Chapter V, Sec. D., 325. 15 State of Maharashtra v. M.G. George, AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: 1965 (1) Crlj 641: (1965) 1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]. See also Union of India v. Ganesh Das Bhojraj, (2000) 9 SCC 461 [LNIND 2000 SC 357] [LNIND 2000 SC 357] [LNIND 2000 SC 357], 469 (para 14): AIR 2000 SC 1102 [LNIND 2000 SC 357] [LNIND 2000 SC 357] [LNIND 2000 SC 357]. 16 See under heading: Publication, supra in this chapter; see S. 307 of the Federal Register Act and S. 552(a) of the Administrative Procedure Act. 17 See also, D.B. Raju v. H.J. Kantharaj, (1990) 4 SCC 178 [LNIND 1990 SC 337] [LNIND 1990 SC 337] [LNIND 1990 SC 337]: JT 1990 (3) SC 148 [LNIND 1990 SC 337] [LNIND 1990 SC 337] [LNIND 1990 SC 337], where the principle of publication of delegated legislation was applied to the rectification of electoral roll. The rectified list was not at all publicized. "If the roll as it stood earlier, was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day, the same cannot be considered to have been prepared according to law." The Court ruled out all modifications made in the list. Reference was made to Harla, Srinivasan and George. 18 See also Ramjilal v. Municipal Committee. Piparia, AIR 1959 MP 82, where it was held that the tax in question would take effect from the date of the publication of the notification directing its imposition. A contrary decision of the Allahabad High Court, in State of U.P. v. Bansidhar, AIR 1969 All. 184 [LNIND 1967 ALL 73] [LNIND 1967 ALL 73] [LNIND 1967 ALL 73], that in the absence of the notification mentioning the date on which the delegated legislation was to come into force, it did not come into effect on publication, does not seem to be good law. 19 Banarsi Das v. U.P. Government, AIR 1959 All. 393 [LNIND 1958 ALL 183] [LNIND 1958 ALL 183] [LNIND 1958 ALL 183]. 20 Banarsi Das v. U.P. Government, AIR 1959 All 393 [LNIND 1958 ALL 183] [LNIND 1958 ALL 183] [LNIND 1958 ALL 183]at 398. 21 (1975) 35 STC 319 (AP). 22 To the same effect is R.K.V. Motor & Timbers (P) Ltd. v. R.T.O., 1982 Ker. 156; Asia Tobacco Co. v. Union of India, (1984) 18 ELT 152. 23 (1988) 33 ELT 83 [LNIND 1987 BOM 485] [LNIND 1987 BOM 485] [LNIND 1987 BOM 485]; JAIN Cases, Chapter V, Sec. D., 333. 24 To the same effect is the ruling in Universal Cans Containers Ltd. v. Union of India, (1993) 64 ELT 23. 25 Collector of Central Excise v. New Tobacco Co., (1998) 8 SCC 256, 258 (para 12), followed in Garware Nylons Ltd. v. Collector of Customs & Central Excise, (1998) 8 SCC 282, 284 (para 4): AIR 1999 1999 SC 844which reversed Garware Nylons Ltd. v. CCE, (1992) 59 ELT 647. See also State of A.P. v. Twin City Jewellers' Association, (2005) 13 SCC 552, 554 (para 8). 26 S.K. Shukla v. State of U.P., (2006) 1 SCC 314 [LNIND 2005 SC 891] [LNIND 2005 SC 891] [LNIND 2005 SC 891], 327-28 (para 18), relying on State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] [LNIND 2005 SC 580] [LNIND 2005 SC 580]. 27 Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149], 658 (para 19): AIR 2000 SC 594 [LNIND 1999 SC 1149] [LNIND 1999 SC 1149] [LNIND 1999 SC 1149]. 28 Govindlal v. Agricultural Produce Marketing Committee, 1976 SC 263: (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND

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1975 SC 300] [LNIND 1975 SC 300]. 29 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 646 (para 13). See also Pankaj Jain Agencies v. U.O.I., (1994) 5 SCC 198 [LNIND 1994 SC 595] [LNIND 1994 SC 595] [LNIND 1994 SC 595]: AIR 1995 SC 360 [LNIND 1994 SC 595] [LNIND 1994 SC 595] [LNIND 1994 SC 595]. 30 (1972) 1 SCC 573 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53], 578 (para 17): AIR 1972 SC 1515 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]. 31 B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], 672-73 (para 15): AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62]. 32 Khattar Enterprises (P.) Ltd. v. Collector of Customs, (1997) 11 SCC 654, 656 (para 3). 33 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 647 (para 15). 34 (2005) 9 SCC 1 [LNIND 2004 SC 1201] [LNIND 2004 SC 1201] [LNIND 2004 SC 1201], 10-11 (paras 10 and 11). 35 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 647 (para 16). 36 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 648 (para 16). 37 (1955) 2 SCR 1196 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]: AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116]. 38 I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], 656 (para 28). 39 See under heading: Parliamentary Scrutiny Committees, Chapter VI. 40 For a reference to the reports of the Committee on the subject, see M.P. JAIN, Parliamentary Control of Delegated Legislatoin, 1964 Public Law 33, 152 (1964). 41 The distinctive prefix will help in finding out the part of the gazette and the central number will help in locating the particular notification. 42 Ordinary issues of this part of the gazette are published every Saturday, extraordinary parts are published as and when the need arises. 43 Orders issued under the Constitution are serially numbered as C.O.1, C.O.2, etc. 44 The various recommendations of the Committee noted here are largely based on the provisions of the Statutory Instruments Act, 1946, and the regulations made thereunder. For provisions of this Act, see, JAIN, Cases, Chapter V, Sec. D. 45 This recommendation was reiterated by the Committee in 1978: Eleventh Rep. (VI L.S.), 16 (1978). 46 At present, it may happen that the order may fail to bear the same serial number in the same sequence as is assigned to the amendment. Thus, the seventh amendment may be printed as S.O, 419 of 1961, while the sixth may be printed as S.O. 546 and the eighth may bear the inscription S.O. 645. This practice is defective. 47 This is necessary because often the rules, like Acts of Parliament, are expressed in technical language which is not easily understood by the public. 48 See under heading: Publication, supra in this chapter. 49 The official publications on statutory instruments in England are: Annual Volumes of Statutory Instruments containing all instruments made, printed and sold during the year, and arranged according to subject-matter, and a classified list of local instruments at the end of the volume for the year, grouped according to their subject-matter. Two other important publications are: (1) Index to Government Orders (published in alternate years) for easily locating those general instruments which are still in operation. (2) Table of Government Orders which lists general statutory rules and orders and statutory instruments in chronological and numerical order, and shows which of them have been revoked, amended, etc., identifying the revoking Act or instrument. The Table also lists prerogative instruments. When any instrument has been amended, the Table gives particulars of the article, section, rule, etc., affected. All these publications seek to achieve the object of making the law, in its up-to-date form, easily accessible to the public. As compared to this elaborate scheme of publication of delegated legislation in England, India looks primitive. 50 See, Law Commission of India, XIV Report, at 708 (1958).

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51 State of Maharashtra v. M.G. George, 1965 SC 722: 1965 (1) Crlj 641. 52 See also under heading: Publication, supra this chapter. 293 US 388, 434. 53 Sixth Report (VII L.S.), 27-28 (1981). 54 Sanwal Ram v. Add!. District Magistrate, 1982 Raj 139. More will be said about these rules in a later chapter: see, infra, Chapter XXI. 55 Hon'ble Chief Justice, High Court of Bombay v. B.S. Nayak, (2001) 9 SCC 763, 764 (para 2). 56 CMP Report, 44 57 For example, the Central Government consults the Sugarcane Growers and Mill Owners' Association as regards the formulation of policies for development of the sugar industry. 58 The Rules Publication Act, 1893, made provision for antecedent publicity of rules, but the Statutory Instruments Act, 1946, dropped such a provision. The government argued that consultation with affected interests had become a routine administrative practice and so there was no need for a statutory provision requiring antecedent publicity. However, removal of a statutory provision was a retrograde step as it did free the Administration from any legal obligation to consult the affected interests. 59 For example, the Agricultural Act, 1947 requires the minister to consult bodies representative of the interests of landlords and tenants before making certain regulations and orders. A more elaborate procedure has been laid down in the National Insurance Act, 1946 under which a statutory committee has been created to give advice and assistance to the minister in connection with his duties under the Act. A preliminary draft of the proposed rules is submitted to this committee which hears objections and then reports to the minister who finalises the rules after considering the report. The rules and the committee's report are laid before Parliament and the minister has to give reasons for his departing from the report in case he does so. 60 See, R. v. Secretary of State, ex p. AMA, [1986] 1 All ER 164. For a general review of the position in England and the desirability of consultation of interests, see GRIFFITH, Delegated Legislation--Some Recent Developments, 12 Mod LR, 297 (1949); FITZGERALD, Safeguards in Delegated Legislation, 27 Can BR, 550 (1949); GARNER, Consultation in Subordinate Legislation, (1964) Public Law 105; JERGESEN, The Legal Requirement of Consultation, (1978) Pub Law; 290. 61 For text of S. 553 see, JAIN, Cases. Sec. E., Chapter V. 62 SCHWARTZ, Administrative Law--A Casebook, 274-303; SCHWART, Administrative Law, 165-77 (1976); FUCHS, Procedure in Administrative Rule-Making, 52 Harr LR, 259 (1938); DAVIS, Adm. Law, 241-7 (1977). Also see, PEDERSON, Formal, Records and Informal Rule-making, 85 YALE L.J, 38 (1975). 63 Supra, Chapter III; infra, Chapter IX; Tulsipur Sugar Co. v. Notified Area Committee, Tulsipur, 1980 SC 882: (1980) 2 SCC 295 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]. 64 I.E. Newspapers (Bombay) P. Ltd. v. Union of India, 1986 SC 515, 540: (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], also see, JAIN, Cases, Chapter IV, 269. 65 Sundarjas Kanyalal Bhathija v. Collector, Thane, 1991 SC, 1893, 1901: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. Also, infra Chapter IX; JAIN, Cases, 629 66 Sundarjas Kanyalal Bhathija v. Collector, Thane, 1990 SC 261: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: AIR 1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. See also, Sundarjas Kanyalal Bhathiya v. Collector, Thane, 1991 SC 1893, 1901: (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: AIR 1990 SC 261 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]. Tulsipur Sugar Co. v. Notified Area Committee, 1980 SC 882: (1980) 2 SCC 295 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]. 67 See, infra, Chapter IX, AIR 1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: (1989) 3 SCC 396. 68 AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]: 1981 2 SCC 600. Also see, JAIN, Cases, Chapter V, Sec. C. 69 Also see WADE, J.'s decision in New India Industrial Corp. Ltd. v. Unon of India, 1980 Del 277. Holding the Ice Control Order, 1979, issued under the Commodities Act, 1955, as invalid, arbitrary and unreasonable vis-a-vis Art. 19(1)(g), WAD, J. pointed out that the said order contained routine provisions usually found in other control orders but which were impractical in case of a commodity like ice which melts away. The Judge emphasized upon the need of consultation of interests concerned calling it a 'salutary practice' which 'infuses bureaucratic legislation with democratic norms. 'Calling consultation as an 'administrative necessity' he said that the instant case "vividly illustrates the self-defeating consequences of non-consultation". Obviously, if the ic-etrade had been taken into confidence while drafting the order, many of the pitfalls arising from Administration's lack of experience and lack of knowledge concerning the ice trade could have been avoided. In this context, the Judge quoted a passages from JAIN & JAIN, Principles of Adm. Law (ed. 1979) at 90. Also see, Baldev Singh v. State of H.P., 1987 SC 1239: (1987) 2 SCC 510.

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70 See, supra, Chapter III. 71 For a description of the various consultative formulae, see, I.L.I., Delegated Legislation, 42-49 (1964). 72 See, The Punjab General Sales Tax Act, 1948. This type of procedure was involved in Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102] and Lachmi Narain v. Union of India, 1976 SC 714: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. 73 See, The Bihar and Orissa Municipal Act, 1922. See, Rajnarain Singh v. Chairman, Patna Administration Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]. 74 Systopicalabo Ratoribs Pvt. Ltd. v. Dr. Them Gupta, Drugs Controller (India), New Delhi, AIR 1993 P & H. 28. On the other hand, the Bombay High Court declared the order invalid: Unichem Laboratories v. Union of India, 1988 Bom. 134. 75 Supra, Chapter V, under Procedural Ultra Vires. 76 AIR 1961 SC 849 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56]: (1962) 1 SCR 33. 77 See, The Sugarcane (Control) Order. Also see, R. v. Secretary of State, exp. AMA, [1986] 1 All ER 166: JAIN, Cases, Chapter V, 297. 78 For discussion on Natural Justice, see, infra, Chapters IX and X. 79 Union of India v. Cynamide India Ltd., 1987 SC 1802: (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]. Also see, JAIN, Cases, Ch V, 310. 80 For text of S. 23, see, JAIN, Cases Chapter V, Sec. C (ii). 81 It has been stated in the Indian Law Institute's Study on Delegated Legislation in India, 38 (1964) that "not more than sixty central statutes existing until 1960 lay down the condition of giving antecedent publicity to the rules made thereunder." For example, see. S. 133(1) of the Motor Vehicles Act, 1939; S. Section 114 of the Insurance Act, 1938; S. 59(1) of the Mines Act, 1952; S. 17(1) of the Coal Mines (Conservation and Safety) Act, 1952: S. 85(1) of the Estate Duty Act, 1953; S. Section 30 of the Minimum Wages Act, 1948. 82 Indian Law Institute's Study on Delegated Legislation of India, 38, at 47 (1964). 83 Talsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]: (1980) 2 SCC 295; JAIN, Cases, Chapter V, Sec. C., 284. 84 Also see under heading: Legislative Function, Chapter IX, for further discussion on the point. 85 See, The Sugarcane Control Order. 86 See M.P. JAIN, supra, 1964 Pub Law at 170. 87 Allisab Husensab Hulkoti v. State of Karnataka, 1980 NOC 110 (Kant). 88 See, Alisab Husensab Hulkoti v. State of Karnataka, 1980 NOC 110 (Kant). The Lok Sabha Committee on Subordinate Legislation has stated that draft rules should be published without delay. To avoid reduction of the period available to the public due to publication of draft rules in the gazette, it should be indicated in the preamble that draft rules will be taken into consideration 30 days after their publication in the gazette: Ninth Report (V L.S.), 4 (1973). See, Twenty Third Report (VIII) L.S.), 4 (1988-89). 89 See under heading: Conclusive Evidence Clause, Chapter V. 90 See, Fifteenth Report (V L.S.) 6 (1975). 91 See Kali Pada v. Union of India, 1963 SC 134: (1963) 2 SCR 904 [LNIND 1962 SC 217] [LNIND 1962 SC 217] [LNIND 1962 SC 217]: 1963 (1) Crlj 88; JAIN, Cases, 289. For the distinction between mandatory and directory provisions see, supra, Chapter V, 108d-117. 92 Rajnarain Singh v. Chairman, PA. Committee, 1954 SC 569: 1955 (1) SCR 290 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]. 93 Lachmi Narain v. Union of India, 1976 SC 714: (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]. 94 AIR 1962 SC 420 [LNIND 1957 SC 18] [LNIND 1957 SC 18] [LNIND 1957 SC 18]: 1962 (1) SCR 596. 95 Berar Swadeshi Vanaspati v. Shegaon Municipality, 1962 SC 420: (1962) 1 SCR 596. See also under heading: Conclusive Evidence Clause, Chapter V.

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1 AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]: 1965 (1) SCR 970. Also see, JAIN. Cases, Chapter V, 300. 2 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399; JAIN, Cases, Chapter IV, 263. 3 Also see, Municipal Board, Hapur v. Raghuvendra Kripal, 1966 SC 693: 1966 (1) SCR 950; Vallabhdas v. Municipal Committee, Akola, 1967 SC 133: 1961 (2) SCJ 194 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35]. 4 See under heading: Conclusive Evidence Clause, Chapter V. 5 Govindlal v. Agricultural Produce Marketing Committee, 1976 SC 263: (1975) 2 SCR 482: 1975 Crlj 1993. 6 AIR 1982 Bom 284 [LNIND 1981 BOM 184] [LNIND 1981 BOM 184] [LNIND 1981 BOM 184]. 7 AIR 1985 SC 1411 [LNIND 1985 SC 234] [LNIND 1985 SC 234] [LNIND 1985 SC 234]: (1985) 3 SCC 697. Also see, JAIN, Cases. Chapter V, 305. 8 Also see, Bhaskar Textile Mills Ltd. v. Jharsuguda Municipality, 1984 SC 583: (1984) 2 SCC 25 [LNIND 1984 SC 12] [LNIND 1984 SC 12] [LNIND 1984 SC 12]. 9 Jodh Singh v. Jullunder Improvement Trust, AIR 1984 P&H 398. 10 AIR 1991 SC 711 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990 SC 881]: (1991) 1 SCC 401. Also see, JAIN, Cases, Ch V, 308. 11 Re Liverpool Taxi Owners' Association, (1972) 2 All ER 589. 12 In re Westminster City Council, (1986)1 AC at 692; JAIN, Cases, 447, 487; C.C.S.U. v. Civil Service Minister, (1985)1 AC 374 at 415; JAIN, Cases, 491; R. v. Secretary of State for Transport, ex parte G.L.C., (1985) 3 All ER 300 at 316, 320. 13 See, infra, Chapter VIII & IX, for further discussion on the doctrine of legitimate expectation. 14 Regina v. Lord Chancellor, ex parse Alexander, (1986) Times Reports, 128, 129, 134, 144; JAIN, Cases, 288.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VII SUB-DELEGATION OF LEGISLATIVE POWER

CHAPTER VII SUB-DELEGATION OF LEGISLATIVE POWER 1. SUB-DELEGATION In accordance with general principle, and with the few available authorities, it seems safe to presume that unless Parliament expresses or implies a dispensation, legislative power must be exercised by those to whom it is given, and not by further delegates. But this presumption is subject to circumstances, and may be greatly weakened in time of emergency. Power to make regulations was freely delegated in the First World War, although the Defence of the Realm Act did not authorise it expressly. No case came before the Courts to show whether delegation was lawful. But in the Second World War, the Supreme Court of Canada held that the Governor-General's emergency powers entitled him without express authorisation to delegate the power to make regulations.1 In Britain the Emergency Powers (Defence) Act 1939 itself gave express powers to delegate, so that an elaborate pyramid of regulations was constructed, delegated, sub-delegated, sub-sub-delegated and so on.2 Besides delegation, sub-delegation is also used on an elaborate scale as an administrative technique in modern times.3 What happens is that the statute confers legislative power on an agency and then that agency further delegates the rule-making power either to itself, or its officers, or another person or agency, This is sub-delegation. 'Sub-delegation' thus implies a further delegation of the same power which was

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originally delegated by the Legislature. There are times when the process of sub-delegation from one level to another goes on four or five degree removed from the original grantee of power. The process of sub-delegation may be illustrated by referring to the practices which have emerged under the Essential Commodities Act, 1955.4 The Act in S. 3 confers power to make rules on the Central Government for the control of the production, supply and distribution, trade and commerce in certain specified essential commodities. This is the first stage of delegation. Under S. 5 of the Act, the Central Government is empowered to delegate its powers under S. 3 to its own officers, the State Governments and their officers. This provision is frequently made use of and delegation under it may be characterised as the second stage. The third stage is reached when the power is further sub-delegated by the State Governments or the official concerned. The working of the process can be seen in the context of the Cotton Control Order, 1955. The Order is made by the Central Government under Section 3 of the Act. Under the Order, the functions and powers are conferred on the Textile Commissioner. This is the second stage in the process of delegation. Then by Cl. 10, the Textile Commissioner is authorised, with the previous sanction of the Central Government, by general or special written order, to authorise any officer to exercise on his behalf all or any of his functions and powers under the Order, and this constitutes the third stage. Sub-delegation at several stages removed from the source dilutes accountability of the administrative authority and weakens the safeguards granted by the Act. It becomes difficult for the people to know whether the officer is acting within his prescribed sphere of authority. It also transfers power from a higher to a hierachically lower authority. It is, therefore, necessary to limit in some way the degrees to which sub-delegation may proceed. An important point to note is that the governing principle is that the legislative powers must be exercised by the delegate himself and by none else; a delegate cannot further delegate his powers unless the parent law permits him to do so. The doctrine applied here is delegatus non potest delegare, i.e. a delegate cannot further delegate. Thus, if a law confers power on the Central Government to make rules, it cannot further delegate that power to any other officer unless the parent law itself gives authority to the government to that effect.5 Sub-delegation of power of delegated legislation is justified only where the parent statute expressly or impliedly authorises the delegate himself to further sub-delegate that power to anyone else. In the absence of an express provision, whether a statute authorises sub-delegation or not is a question for judicial interpretation.6 In an elaborate decision in A.S. Rao & Co. v. Agricultural Market Committee ,7. the Andhra Pradesh High Court has delved into the question of sub-delegation of legislative power. Under S. 7(1) of the A.P. Markets Act, 1966, no person could within a notified area use any place for the purchase, sale, etc. of any notified agricultural produce except under a license granted to him by the market committee. S. 7(3) provided that the government could prescribe license fee by making rules. Under Rule 48 made under the Act, the government authorised the market committee to fix the license fee, but not exceeding Rs.100. The validity of Rule 48 was challenged on the ground that the government ought to have fixed the license fee itself through rules and it could not sub-delegate that power to the market committee. The argument was based partly on the phraseology of S. 7(3) and partly on the maxim of delegatus non potest delegare. The Court rejected the argument saying that the maxim in question was not a rule of law but only a rule of construction. Even when a statute does not contain any express provision authorising delegation of legislative power, such a power can be spelt out by necessary implication from the provisions of the statute. In the instant case, the Court spelt out such a power from the statutory provisions involved. Usually, the courts interpret sub-delegation rather broadly. The case in point is K. Ramanathan v. State of Tamil Nadu .8 Here, the Central Government sub-delegated its power to the State Government under S.3(2)(d) of the Essential Commodities Act. The Supreme Court interpreted the sub-delegation broadly saying: "... although Cl. (d) of sub-s. (2) of S. 3 of the Act deals only with a specific power, the general power to issue the impugned order flows from the provisions of sub-s. (1) of S. 3 which stands delegated to the State Government..." When there is valid sub-delegation, the sub-delegate exercises the power in his own name. S. Section 37 of the Electricity Act, 1910, empowers the Central Electricity Board (CEB) to make rules for regulating generation, transmission, supply and use of electrical energy. Accordingly, the CEB framed the Indian Electricity Rules, 1956, of which Rule 45(1) empowers the State Government to regulate the grant of licenses, certificates and permits. The Orissa State Government framed regulations inter alia constituting the

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Electrical Licensing Board (ELB) and holding of examinations for supervisors. Pursuant to Rule 45(1), the regulations were published in the State Gazette. The vires of the regulations were challenged on the ground that the power conferred on the CEB under the Act could not be sub-delegated further by it to the State Government which, in its own turn, had sub-delegated the same to the ELB. But the High Court ruled that the exercise of the power by the ELB was not hit by the maxim of delegatus non potest delegate.9 Regulations 12(2) and 13(1) of the Employees' State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959conferred on the Director General of the Employees' State Insurance Corporation to specify, by a general or special order, an authority which could act as a disciplinary authority for the employees and also institute disciplinary proceedings against them. The Supreme Court held that this power of the Director General related to the powers conferred on him under the Regulations made under the provisions specified in Section 97(2)(xxi) or Section 17(2) of the Employees' State Insurance Act, 1948 and not to the powers and functions delegated to him by the corporation on its standing Committee under Section 94-A of the said 1948 Act. Hence, such statutory conferment of power does not suffer from the vice of sub-delegation.10Section 94-A of Employees' State Insurance Act 34 of 1948 has empowered the Employees' State Insurance Corporation to delegate the power to any of its officers and its Regional Director, being one of them, was competent to exercise power on behalf of the Corporation and the same does not suffer from the vice of further delegation.11 Rule 16(2) of the Employees' State Insurance (Central) Rules, 1950 empowers the Director General of the Employees' State Insurance Corporation to delegate any of his powers or duties under the Rules or the Regulations or under any resolution of the Corporation or the Standing Committee, as the case may be, to any person subordinate to him after obtaining approval of the Standing Committee. This power of delegation under Rule 16(2) can be divided into two parts: one is relating to delegation of powers or duties under the Rules and the Regulations and the other is relating to the powers and duties under any resolution of the corporation or the Standing Committee. The Supreme Court held that the former, being independent statutory powers, is not violative of the principle of sub-delegation but the position as to the latter is different as it empowers the Director General to further delegate the said powers or duties which amounts to sub-delegation of powers which is impermissible in law.12 (a) Unguided Legislative Power ought not to be sub-delegated Sub-delegation raises several problems. The first is whether it is necessary for the delegate to lay down lines of guidance for the sub-delegate to follow, or can there be a plain and simple sub-delegation without laying down any policy-guidance for the delegate to observe ? The matter has arisen before the Indian courts on a few occasions. A broad proposition in this connection may be stated thus: the sub-delegate ought not to be given uncanalised and unguided legislative power. However, the judicial attitude regarding the application of this principle to concrete situations remains somewhat equivocal. In Rao,13. mentioned above, the Court also emphasized that in sub-delegation also, like delegation, sufficient guidance must be given to the sub-delegate concerned. The Court ruled that an important feature of the market committee was that it was a body manned by the representatives of traders, growers and government nominees. The fixation of the maximum rate for the license fee was itself guidance for the purpose. The nature of the body, e.g. that it was a representative body, was also a factor in deciding whether there was proper guidance or not. Thus, the rule fixing the maximum license fee and then leaving it to the committee to fix the license fee in specific cases through its bye-laws was held to be valid. Under Section 3 of the Essential Supplies Act, 1946, the Government of India promulgated the Iron and Steel Order, 1941. Cl. 11-B of the Order authorised the Iron and Steel Controller to fix the maximum prices at which any iron and steel might be sold by a producer, stockholder or any other person, and different prices could be fixed for iron and steel obtained from different sources and could include allowances for contribution to and payment from an equalisation fund. One High Court declared Cl. 11-B invalid on the ground that it conferred a "naked and arbitrary" power on the Controller to control prices,14 but another High Court held it valid.15 The Supreme Court, however, held the clause valid16 on the ground that under S. 3 of the Act,17 the Central Government could have itself prescribed a price structure for iron and steel. Instead of doing so itself, the Government authorised the Controller to do so. The control order, taken as a whole, gave him the necessary guidance to exercise his power; it constituted an integrated scheme to enable the Controller to effectuate the policy of Act; and the authority conferred on the Controller was not "uncanalised or unbridled or unguided." A close reading of the

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case leaves the impression that since the Order was made with a view to confer power on the Controller to effectuate the policies laid down in the parent Act, the Court did not think it necessary that the Central Government should lay down any further guidelines for the Controller to follow. The parent Act governed the discretion not only of the Government but of the Controller as well. The Supreme Court adopted a similar approach in Laxmi Khandsari v. State of Uttar Pradesh .18 An order was made under the power delegated by Cl. 8 of the Sugarcane Order passed under S. Section 3 of the Essential Commodities Act, 1955. Cl. 8 of the Sugarcane Order conferred power on the Central Government to make orders, issue directions to various persons' connected with the production of Khandsari sugar or crushers of sugarcane. Powers under the Order were delegated to the Cane Commissioner who made the impugned order. Cl. 8 was challenged as invalid on the ground that it gave no guidance to the delegate. Rejecting the argument, the Court observed that the Sugarcane Control Order was made under S. 3 of the Act, and it contains sufficient guidelines, checks and balances to prevent any misuse or abuse of the power conferred on the authorities under Cl. 8. Also, the power cannot be deemed to be arbitrary or unguided because the impugned notification derives its source from S. 3 which clearly lays down sufficient guidelines. The notifications under the Control Order have to be read in the light of the main Act of 1955.19 At times, the Supreme Court seeks to ward off the challenge to the sub-delegated legislation on the ground of lack of guidelines to the sub-delegate by emphasizing upon the high statuts of the delegate. In Laxmi Khandsari, mentioned above, power sub-delegated to the Central Government was held valid on the ground inter alia that the Central Government being a very high authority, it must be presumed to act in a just and reasonable manner.20 The Lok Sabha Committee on Subordinate Legislation has emphasized21 that sub-delegation should not be made in very wide language, or that it should not be made whereon the parent statutes is silent on the point. S. 5(2) of the Coal Mines (Conservation and Safety) Act, 1952, authorised the Central Government to delegate any of its powers to the Coal Mines Board by a special or general order. By making a rule, the Government left the power of laying down 'principles' for acquisition or disposal of lands and surface rights to the Coal Board. The Committee raised the objection that the 'principles' should be laid down by the Government itself and not by a subordinate authority. As a consequence, the Government amended the rule. The Central Silk Board Rules, 1955, sub-delegated rule-making power to the Silk Board when the parent Act specifically authorised the Central Government to make the rules. The Committee took objection to the sub-delegation and the Government agreed to amend the rules in question. Again, Rule 13 of the Carbide Calcium Rules, 1937, made under the Petroleum Act, 1934, delegated rule-making power to subordinate authorities though such delegation was not authorised by the parent Act. The Committee took objection thereto and the government agreed to delete the said rule. S. 3 of the All-India Services Act, 1951, empowers the Central Government to make service rules. By the rules made by the government, it assumed further power to regulate residuary matters, not covered by the rules by issuing regulations. The Committee objected to this provision. The Committee has also emphasized that there should be some safeguards imposed before a delegate is allowed to sub-delegate its authority to another functionary. It has objected to wide language used in statutes to permit sub-delegation.22 (b) Sub-delegate must act within the Power Delegated There is a well established principle that a sub-delegate cannot act beyond the scope of the power delegated to him.23 This is known as the principle of ultra vires.24 The Supreme Court has recently stated the principle as follows: "A delegate is not entitled to exercise powers in excess or in contravention of the delegated powers. If any order is issued or framed in excess of the powers delegated to the authorities, such order would be illegal and void."25 In order to protect the validity of sub-delegated legislation, the courts often adopt the strategy of liberally interpreting the scope of delegation of power.26 Reference has already been made to S s. 3 and 5 of the Essential Commodities Act, 1955. Usually, while delegating rule-making power on a State Government under S. Section 5 of the Essential Commodities Act,

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the Central Government imposes the condition that the State Government can make rules only with its prior concurrence. In such a case, the rules made by a State Government without the concurrence of the Central Government are invalid.27 This is tantamount to the State Government exercising power in contravention, or, in excess, of the power sub-delegated to it. The Court has also ruled that the Central Government's order of concurrence must be in writing though need not be authenticated under Art. 77(2).28 The Rajasthan High Court considered an interesting question in Foremost Dairies v. State 29. The Central Government sub-delegated its power under S. 3(2)(g), Essential Commodities Act, to the State Government subject to the usual condition that the State Government would take 'prior approval' of the Central Government before making any rules. The State Government promulgated the Milk (Export Control) Order, 1948 banning export of milk outside the State without seeking the Centre's prior consent but obtained its ex post facto consent. The question was whether the Order was valid and the Court ruled that the Centre's consent being merely of a 'formal nature', the ex post facto consent could "fulfil the requirement of the prior concurrence of the Central Government". The ruling seems to be questionable for several weighty reasons. It was wrong of the Court to suggest that the 'prior consent' of the Centre was merely a formality. It was not so because before giving its consent the Centre must weigh carefully the interests of the exporting State as well as of the importing State and the economic dimension of the proposed order. Freedom of trade and commerce is a value inherent in the Constitution and, therefore, restrictions on it could not be regarded as of no consequence. In fact, in the letter giving its ex post facto consent to the order in question, the Central Government emphasized that its prior consent ought to have been taken. Further, from the Administrative Law angle, a sub-delegate cannot exceed the power given to him; his power is subject to the limitation imposed on him by the delegator. Non-observance by him of this limitation will make his order ultra vires and void ab initio. In the instant case, the order made without the Centre's prior consent was void ab initio. Therefore, it could not be validated retrospectively by the ex post facto consent. In any case, there could be no valid order before the ex post facto consent was given by the Central Government. It needs to be emphasized that there is a difference between 'prior consent', 'consent' simpliciter. If the latter term is. used in the order of sub-delegation, then it may be argued that it includes ' ex post facto consent', but not the former expression.30 2. PUBLICATION There arises the question of publication of sub-delegated legislation. It would appear that on the basis of the general principles laid down in Harla,31 sub-delegated legislation should also receive some publicity so that those affected by it may become acquainted with, and acquire some knowledge of, the rules which bind them. At times, the parent statute may contain a stipulation that all orders made under the Act should be published in the official gazette, and the question may then arise whether this stipulation applies to the rules made immediately under the Act, or even to the orders and sub-rules made under the rules, i.e. to the sub-delegated legislation as well. The point may now be regarded to have been settled by the Supreme Court in Narendra Kumar v. Union of India .32 Under S. 3(5) of the Essential Commodities Act, 1955, all orders of a general nature made under S. 3(1) are to be notified in the official gazette. The Non-Ferrous Metals Control Order, issued under the Act, prohibited through Cl. 4 acquisition of copper without a permit issued by the Controller in accordance with the principles "specified" by the Central Government from time to time. The principles for the issue of permits, which may be regarded as sub-delegated legislation, were specified by the Central Government in a communication to the Controller but had not been notified in the gazette. The Supreme Court held that the principles were not legally effective as they were not validly specified due to their non-publication in the gazette as envisaged in S. 3(5) of the Act. The Court insisted that the principles should have been notified in the gazette. Any changes made therein should also be notified in the gazette. These principles could not be effective unless specified by the Central Government through an order notified in accordance with S. 3(5) of the Act and without these principles having been specified in a legal manner, Cl. 4 of the Order could not be activated and no permits could be issued. The question of publication of sub-delegated legislation also figured in State of Maharashtra v. George .33 The Act in question stipulated publication of the rules made under the Act in the official gazette but did not say anything about the publication of sub-delegated legislation issued by an authority under the rules. A notification made by the Reserve Bank under the rules was published in the official gazette. The Supreme

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Court held that the publication of the notification in the gazette, the usual and recognisable way of publication in India, was adequate for its validity. The point to note is that even though the parent Act may not specifically require publication of the sub-delegated legislation, nevertheless, it would be imperative to publish it for its effectiveness and validity. In this connection, the following observation of SCOTT, L.J. Blackpool Corp. v. locker ,34 may be taken note of: "The modern extent of sub-delegated legislation is almost boundless: and it seems to me vital to the whole English theory of the liberty of the subject, that the affected person should be able at any time to ascertain what legislation affecting his rights has been passed under sub-delegated powers".

Criticising the non-publication of certain circulars, having been regarded as sub-delegated legislation, SCOTT, L.J., remarked in Jackson Stansfield & Sons v. Butterworth .35 "At the date material to the present proceedings,... there were no means at all open to the public affected by which a private owner whether an individual or a company, even with the assistance of his lawyer, could, as of right, ascertain what the detailed provisions were which in practice governed and limited his right or effective power to get a licence... The truth is that, as emphasized in the Report of the Committee on Ministers' Powers, while in our modern constitutional practice delegated legislation is both necessary, convenient and desirable. . safeguards are essential, especially that its content should always be within public knowledge. In my view, compulsory publicity is only preventive of many of those evils which most people have in mind when they speak of "bureaucracy" with an accent of censure. And whereas, in my opinion, is, in certain respects, the case as to parts of the official literature now before the court-administration is mixed up with sub-delegated legislation and none of the mixture is made public, it is really unfair and, indeed, unjust to the public."

The Lok Sabha Committee on Subordinate Legislation has also been seized of the problem. Rules made under a statute often confer further powers on administrative officers to issue directives, non-compliance of which by persons is penal, but no procedure is laid down in the rules for publication of such directives. The Committee has, therefore, suggested that the rules should specifically lay down a procedure for bringing such directives to the notice of the persons concerned.36 The Committee has emphasised that all statutory orders, regulations or principles issued under the rules should be published in the same manner as the rules under the parent Act.37 Similarly, when there is a requirement to "pre-publish", the same should be followed as in the case of delegated legislation.38 At times a provision authorising the making of sub-delegated legislation may not prescribe any specific mode of its publication but may merely say that the authority concerned shall publish the same "in such manner as may, in the opinion of such authority be best adopted for informing persons whom the order concerns..." Explaining the purport of this provision, a High Court has stated that publication is a condition precedent for the enforceability of sub-delegated legislation. The provision in question signifies--(i) that the authority concerned has to bring its mind to bear on the question of the best means of publication and prescribe a mode of publication, and (ii) the sub-delegated legislation must have been published accordingly. Mere making of sub-delegated legislation is not enough, its publication is essential. The mode of its publication is to be prescribed by the concerned authority and its publication in any other mode is not sufficient.39 It may not be out of place to mention here that in England there exists no obligation, statutory or common law, on the Administration to publish sub-delegated legislation as the Statutory Instruments Act, 1946 stipulates printing of delegated, and not of sub-delegated, legislation. This is a big lacuna in England.40 In India, however, the obligation to publish sub-delegated legislation has been established by the courts as mentioned above. (a) Laying Another problem in the area of sub-delegated legislation concerns its laying before the Houses of Parliament. The parent statute usually says that the orders made under it shall be laid before the Houses of Parliament. Does such a provision cover the rules made immediately under the Act, or also the sub-rules made under the rules? If it is held that the statutory provision requires the laying of only the rules, then the sub-rules would not be required to be laid and these may thus escape parliamentary scrutiny or control. If the

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view is taken that the statutory provision regarding laying covers both the rules and the sub-rules, then parliamentary scrutiny of all delegated and sub-delegated legislation is provided for, but it may cause inconvenience and difficulty to the Administration in view of the large bulk of sub-delegated legislation. The question has arisen specifically in relation to the Essential Commodities Act, 1955. Under S. 3(6) of the Act, every order made under S. 3(1) by the Central Government or by any officer or authority thereof has to be laid before both Houses of Parliament. Under S. 3(1), the Central Government issued the Cotton Control Order, 1955 and, under this order, the Textile Commissioner made a sub-order. The Government took the view that the sub-order need not be laid before Parliament under S. 3(6) as it had been issued under the control order and not under the Act. The Lok Sabha Committee on Subordinate Legislation, on the other hand, took the view that, as the ultimate authority of the sub-order was to be traced to the Act, it should have been laid. The Committee took a similar view in respect of a sub-order issued under the Fertiliser (Control) Order, 1957 made under S. 3(1) of the same Act. The Central Government, however, pointed out that the acceptance of the Committee's view would create a number of practical and administrative difficulties, e.g., the number of sub-orders ran into thousands; most of these orders were of ad hoc character; the rules of procedure of the Houses required that every document and paper laid on the table of each House should be duly authenticated by the member presenting it and it would be a stupendous task to authenticate thousands of sub-orders, many of them being unimportant and of a temporary nature. The Committee fell in line with the Government's view and dropped its suggestion that the sub-orders be laid before the House.41 Legally speaking, the view of the Committee was correct and its logic was impeccable because the ultimate authority to issue the sub-orders is traceable to the statute itself and, therefore, the statutory provision requiring laying of orders made under the Act should cover even the sub-orders. But, ultimately, practical considerations of administrative convenience prevailed over theoretical considerations. The Committee, however, subsequently stated the necessity to "lay" sub-delegated legislation made under the Coal Mines Conservation and Safety Rules, 1954,42 and statutory orders under the Defence of India Rules, 1971.43 As stated above, a direction of the Speaker requires that the Committee on Subordinate Legislation may examine all legislative orders under the Constitution or a statute whether laid or not. Further, the Committee has also insisted that all regulations framed by the autonomous bodies formed under the Central statues be laid. In view of these factors it now seems necessary to lay sub-delegated legislation before the Legislative. As stated earlier, rule-making power under S. 3(1) of the Essential Commodities Act may be delegated by the Central Government on the State Governments.44 The Supreme Court has ruled that rules made by the State Government in exercise of the delegated power by the Centre are not required to be placed before Parliament under S. 3(6).45 There is a valid reason underlying this proposition. The order in question was made by the State Government which is not responsible to Parliament. However, it could be argued in this situation, that no order is made by a State Government without the consent of the Central Government46, and, therefore, to some extent, the Central Government is responsible for State orders made under the Essential Commodities Act. Therefore, on this basis, it could be argued that S. 3(6) of the Act ought to be held applicable. But, as stated above, sub-delegated legislation made under the Essential Commodities Act, is not laid before the Houses of Parliament. It would seem from this that parliamentary supervision over sub-delegated legislation is, on the whole, weaker than on delegated legislation. (b) Consultation As regards consultation, the position in the area of sub-delegated legislation is the same as in delegated legislation, viz., the authority making sub-delegated legislation is not obligated to consult the affected interests unless a legal provision requires it to do so. Such a provision can be found either in the parent Act or in the delegated legislation under which the sub-delegated legislation arises. In reality, some of the cases cited in the last Chapter under 'consultation', may be ascribed to sub-delegated legislation. For example, in Laxmi Khandsari,47 the Sugar Controller made the impugned order under the Sugar Order issued under the Essential Commodities Act; in Cynamide,48 the order to fix drug prices was issued by the Central Government under the Drug Control Order, 1979 which again was issued under the Essential Commodities

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Act. The requirements of 'inquiry' and 'review' were laid not by the Act but by the Drug Order. As noted above, there is a lacuna in the control mechanism over sub-delegated legislation insofar as parliamentary supervision over it is rather weak. This deficiency can be made good, to some extent, by promoting more consultation between the interested groups and the Administration. This aspect has been emphasized upon by the High Court in New India Industrial Corp. v. Union of India ,49 where the Court has said that the problem is more acute in the area of sub-delegated legislation. Under the Essential Commodities Act, the Central Government has delegated power to the Delhi Administration, and the Administration has delegated the same to the deputy commissioner and assistant commissioner of food and supplies and civil supplies officers. Sub-delegated legislation is not required to be laid before the legislature like other statutory rules and, thus, no scrutiny of the sub-delegated legislation is possible at any stage, and so more consultation should be promoted in this area. It needs to be underlined that there is need for more, and not less, effective control mechanism over sub-delegated legislation as compared to delegated legislation because its bulk is immense and it involves transfer of legislative power from a higher to a lower authority in most cases.50 Like delegated legislation, consultation in the area of sub-delegated legislation can also be claimed on the ground of legitimate expectation.

1 Re Chemicals Regulations, (1943) SCR 1, as cited in WADE & FORSYTH: Administrative Law, 9th Edn., 2005, p. 886. 2 WADE & FORSYTH: Administrative Law, 9th Edn., 2005, pp. 886-87. 3 This Chapter deals specifically with sub-delegation of legislative power. Sub-delegation of other powers is considered in a later Chapter: see, Chapter XXI . 4 See for details, M.P. JAIN, Administrative Process under the Essential Commodities Act, 21-22, 129-30 (I.L.I. 1964). For extracts from this study, see, JAIN, Cases, Chapter I . 5 State of Punjab v. Amir Chand, AIR. 1953 Punj 1; Pritam Bus Ltd. v. Punjab, AIR 1957 Punj 145; Forum, Prevention of Environment & Sound Pollution v. U.O.I., JT 2005 (9) SC 319 [LNIND 2005 SC 870] [LNIND 2005 SC 870] [LNIND 2005 SC 870]: 2005 (9) Scale 69. 6 See, U.P. State Electricity Board v. Abdul Shakoor, AIR 1981 SC 1708; See also Pramod K. Pankaj v. State of Bihar, (2004) 3 SCC 723 [LNIND 2003 SC 1010] [LNIND 2003 SC 1010] [LNIND 2003 SC 1010], 730 (para 16): AIR 2004 SC 746 [LNIND 2003 SC 1010] [LNIND 2003 SC 1010] [LNIND 2003 SC 1010]: (1980) 3 SCC 278 infra, Chapter XXI. 7 AIR 1977 AP 325. 8 AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116. 9 S.N. Sahu v. State of Orissa, AIR 1983 Ori 131 [LNIND 1983 ORI 46] [LNIND 1983 ORI 46] [LNIND 1983 ORI 46]. 10 Director General, E.S.I. v. T. Abdul Razak, (1996) 4 SCC 708 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], 717-718 (paras 15 and 16): AIR 1996 SC 2292 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], relying on Sahni Silk Mills (P.) Ltd. v. ESI Corporation, (1994) 5 SCC 346. 11 Sovrin Knit Works v. Employees' State Insurance Corporation, (1996) 11 SCC 758, 759 (para 2): AIR 1997 SC 1771 [LNIND 1996 SC 2012] [LNIND 1996 SC 2012] [LNIND 1996 SC 2012]. 12 Director General, ESI v. T. Abdul Razak, (1996) 4 SCC 708 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], 718 (para 17): AIR 1996 SC 2292 [LNIND 1996 SC 1002] [LNIND 1996 SC 1002] [LNIND 1996 SC 1002], relying on Sahni Silk Mills (P.) Ltd. v. ESI Corporation, (1994) 5 SCC 346. 13 A.S.Rao & Co. v. Agricultural Market Committee, AIR 1977 AP 325. 14 State of M.P. v. Haidarali, AIR 1957 MP 179 [LNIND 1957 MP 9] [LNIND 1957 MP 9] [LNIND 1957 MP 9]. 15 Bhagwati v. Uttar Pradesh., AIR 1959 All 332 [LNIND 1958 ALL 189] [LNIND 1958 ALL 189] [LNIND 1958 ALL 189]. 16 Union of India v. Bhanamal Gulzarimal, AIR 1960 SC 475 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]: 1960 Crlj 664; JAIN, Cases, Chapter VI, 349. The ruling was reiterated-in Bhagavati Saran v. State of UP., AIR 1961 SC 928 [LNIND 1961 SC 24] [LNIND 1961 SC 24] [LNIND 1961 SC 24]: 1961 (2) Crlj 24.

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17 This provision was held to be valid in Harishankar Bagla v. State of M.P., AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: (1955) 1 SCR 380: 1954 Crlj 1322. 18 AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], 888: (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]; JAIN, Cases, Chapter VI, 354. 19 The following cases were cited in support of the proposition: Chinta Lingam v. Govt. of India, AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464]: (1970) 3 SCC 768; V.C. Shukla v. Delhi Administration, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179]: 1980 Crlj 965. 20 Hans Raj Bhartiys & Co. v. Union of India, AIR 1991 Del 83, JAIN, Cases, Chapter VI, 353. 21 For a detailed discussion of this topic, see M.P. JAIN, Parliamentary Control of Delegated Legislation in India, 1964 Public Law at 160 22 M.P. JAIN, 1964 Public Law, at 160. 23 Blackpool Corporation v. Locker, (1948) 1 KB 349; Allingham v. Minister of Agriculture and Fisheries, (1948) 1 All ER 780; Radhakishan v. State, AIR 1952 Nag 387. 24 Supra, Chapter V. 25 Dist.Collector, Chittoor v. Chittoor Dist. Groundnut Traders' Assn., (1989) 2 SCC 58 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]: AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]; JAIN, Cases, Chapter VI, 344. 26 For an example of this judicial strategy, see, K Ramanathan v. State of Tamil Nadu, AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]: (1985) 2 SCC 116; JAIN, Cases, 339. 27 Shib Shankar Dokania Oil, Rice and Flour Mills v. State, AIR 1981 Pat 355. Also, Dist. Collector; Chittoor, (1989) 2 SCC 58 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690] at p. 60: AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]; D.U.E. Sangh, Jabalpur v. Madhya Pradesh, AIR 1986 MP 9 [LNIND 1985 MP 27] [LNIND 1985 MP 27] [LNIND 1985 MP 27]. 28 On Authentication, see, infra, Chapter XXI . 29 AIR 1986 Raj 116. 30 See, L.I.C. v. Escorts Ltd., AIR 1986 SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], 1375, 1403: (1986) 1 SCC 264 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362]; JAIN, Cases, Chapter XIV. 31 Harla v. State of Rajasthan, AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 SCR 43: 1952 Crlj 54. 32 AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217]: 1960 (2) SCR 375. 33 AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415]: 1965 (1) Crlj 641. 34 [1948] 1 KB 349, 369. 35 [1948] 2 All ER 558. 36 Sixth Rep.(II L.S.), 2 (1959). 37 Tenth Rep.(V L.S.), 11 (1974); Fourteenth Rep. (V L.S.), 9 (1974). 38 Tenth Rep.(V L.S.), 11 (1974); Fourteenth Rep. (V L.S.), 9 (1974). 39 Babulal Rajoolal v. Emperor, AIR 1945 Nag 218, 224. 40 GRIFFITH and STREET Principles of Administative Law, at 58 (1973). 41 M.P. JAIN, 1964 Pub Law at 48-49. 42 Tenth Report (V L.S.), 11 (1974). 43 Seventeenth Report (V LS.), 19 (1976). Also see, Fourteenth Report (V LS.), 9 (1974). 44 Supra. 45 Sarkari Sasta Anaj Vikreta Sangh v. State of M.P., AIR 1981 SC 2030, 2034: (1981) 4 SCC 471. Earlier in Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]: 1979 Crlj 927: (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], supra, Chapter VI, note

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24, the Supreme Court had left the question open whether it was necessary under the Essential Commodities Act to lay sub-delegated legislation before Parliament under S. 3(6). 46 AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC 12]: (1969) 1 SCC 399. 47 Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]: (1981) 2 SCC 600. Also, supra, Chapter VI, 168. 48 Union of India v. Cynamide India Ltd., AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720. 49 AIR 1980 Del 277 [LNIND 1980 DEL 155] [LNIND 1980 DEL 155] [LNIND 1980 DEL 155]. 50 Supra, Chapter VI, 179.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VIII DIRECTIONS

CHAPTER VIII DIRECTIONS 1. DIRECTIONS GENERALLY In addition to the various forms of delegated legislation adverted to in the previous pages, a modern phenomenon in administrative process is the emergence of the institution of directions. Issuing directions has become an essential and normal administrative technique in modern times. This is a kind of informal or quasi-legislation made by the Administration.1 Directions are less formal than rules. Administrative authorities churn out directions for a variety of purposes2 and in a variety of ways, e.g., through letters, circulars, instructions, orders, memoranda, directives, bulletins, guidelines, manuals, pamphlets, public notices, press notes, clarifications, trade notices etc. At times, directions may even be published in the government gazette.3 A direction may be specific, being applicable to a specific person or matter or case; or, it may be general in nature laying down some general norm or principle or policy, practice or procedure to be followed in all similar cases. The theme of this Chapter is directions of a general nature issued by the Administration; discussion on specific directions, which are also known as directions of an administrative nature, is being postponed to a later stage.4 Prima facie,a direction of a general nature may in form resemble a rule, or some form of delegated legislation, as 'both are of general applicability, and both are issued by administrative authorities, and both may seek to regulate the relationship between the State and the citizen. But directions and delegated legislation do differ basically from each other in concept and essence. To underline the difference between the two, directions are at times characterised as 'administrative quasi-law' or 'administrative quasi-legislation'. One basic difference between the two is that while delegated legislation is issued only when the concerned authority has statutory power to do so, as is discussed in the previous pages,5 statutory power is not the sine qua non for issuing directions. Directions are usually issued under general administrative power of the government and not under its legislative power.6 The power to issue directions is now regarded as being inherent in the administrative power. But cases are not wanting where statutory power is also conferred on an authority to issue directions.7 Another difference is that while a rule can override a direction, a direction cannot override a rule. Since a direction cannot amend a rule, a direction, from this point of view, occupies a secondary place in relation to a rule.8 Another basic distinguishing feature between a direction and delegated legislation is that while the latter is binding on both the individual as well as the Administration, and is legally enforceable against each at the instance of either the Administration or the individual, a direction, generally speaking, may not always be regarded as enforceable.9

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On the whole, as the discussion in this Chapter shows, the presentday law concerning directions is extremely uncertain and complex. For an administrative lawyer, the picture existing in the area is very confusing. There are no definite answers to many crucial questions, e.g., how to distinguish between directions and rules? Under what circumstances do directions become enforceable? What we have today is merely a catena of judicial pronouncements depicting an ad hoc judicial approach from case to case from which any general propositions of law are very difficult to draw. The law regarding directions is in a flux and there is a lack of consistency in judicial pronouncements in the area. The fact however remains that because of some judicial pronouncements over time, the status of directions has been very much enhanced so much so that the differentiation between directions and rules has become very blurred, and, at times, it even reaches the vanishing point. In Karnataka SRTC v. KSRTC Staff & Workers' Federations,10 the Supreme Court held that in the exercise of powers conferred by Section 34of the Road Transport Corporation Act, 1950 on the State Govt. to issue directions to the Karnataka State Road Transport Corporation, the Govt. Could not direct the Corporation to commit breach of any binding settlement between the parties under Section 18(1)or to make the Corporation liable for criminal action in this connection under Section 29of Industrial Disputes Act, 1947. In State of T.N. v. L. Krishnan,11 the High Court was of the view that the Government notification GOMS are statutory notifications but the Supreme Court, disagreeing with this view held that they are only administrative instructions as guidelines when if misused could be withdrawn by the Govt. as when it had power to issue guidelines, it has plenary power to withdraw the same. In a case, on the basis of the material before the Collector, he had formed the opinion that the land in question was required for public purpose and the Govt., after protracted litigation and to avoid further litigation, had directed to acquire the land after obtaining permission of the Govt., if the value of the land was more than Rs. 20,000 per acre but that did not mean that the collector had abdicated his power under Section 4(1)of the Land Acquisition Act, 1894. The administrative instructions, no doubt, bind the subordinates but the violation thereof does not constitute an infirmity in the acquisition itself. The Govt. could take appropriate disciplinary action against the officials but it does not constitute infirmity in the valid exercise of power under Section 4(1)of the Act and the declaration under Section 6of the Act.12 (a) Need for directions It is a fact of life that directions are used by the Administration very pervasively in modern administrative process to serve a variety of purposes. Today Administration cannot do without taking recourse to the technique of directions. An index of the growing significance of the system of directions is to be seen in the volume of caselaw coming before the courts in this area. Directions appear in various guises. There has been an exponential growth in this type of administrative 'legislation'. Directions may confer benefits, or impose duties, on persons concerned. The justification for directions is to be found in the following factors: informality; convenience in issuing directions; possibility to use nonlegal and nontechnical language in formulating directions; flexibility; ability to change or modify directions more easily and expeditiously than rules. Directions are also used to explain and interpret the law in ordinary nontechnical language.13 The technique of issuing directions is an integral part of modern administrative process. The directions are used mostly by the Administration to inform the people of the policy decisions which the government takes from time to time in various areas which may affect the concerned persons one way or the other. As we shall see later, it is not always necessary for the government to make a law to implement each and every decision taken by the government. To the extent, a government decision does not affect the vested rights of any person, it can be effectuated without enacting a law by using the technique of directions for the purpose.14 Another use made of directions is to announce concessions that will be made in the application of a statute in individual cases. In this way, without actually changing the wordings of a law, its effect in practice may be changed through the medium of directions. The technique of directions is also used to lay down procedures for various purposes to be followed by the Administration or the public. Directions are also used to fill in the gaps in the area of wide discretionary powers conferred on the Administration. The government may

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announce in advance as to how it seeks to exercise its powers under a particular statutory provision. Thus, directions may be used as a mechanism for structuring wide discretion conferred on officials by the legislature.15 Directions are a part and parcel of the internal administrative procedure of a government department. When a number of officials are engaged in executing a law and taking decisions thereunder, directions may serve the purpose of laying down some criteria to be followed by these officials in discharging their functions so that there may be some uniformity of approach in disposing of similar cases by the various officials. The government may lay down through directions some norms, general principles, practices and policies within the area of operation of a statute for the guidance of officials and convenience of the public. Reference may be made here to S. Section 5B of the Cinematograph Act, 1952. The Act provides for the creation of a Board of Film Censors for sanctioning films for public exhibition. This provision confers a very broad discretion on the Board. Then, under S. 5B(2)the Central Government may issue "such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition." This leads to the flexibility of the system as the directions can be changed by the government from time to time without much ado. In certain situations, Administration may prefer to use directions rather than rules: a principle may not lend itself to, or may not be ripe for, precise articulation;16 the agency may prefer to retain some freedom to modify its views without undergoing much formality; a department may like to confer a benefit on the public but may not like to make it a legal right, or the benefit conferred many be over and above what the statute provides for and this may not be done through a rule for such a rule may be ultra vires the Act being inconsistent with it.17 A department may be faced with a new problem for which no past experience is available to it and may for the time being have to experiment with the method of trial and error until some stable norms are evolved which may be capable of being laid down in the form of rules.18 Until a particular problem has been worked out for a sufficient period, norms and standards may have to be kept somewhat flexible and in such a situation, directions rather than the rules may be regarded as being more expedient from an administrative point of view. Further, directions may be used when the factors for operation of the Administration are fluid and subject to rapid changes.19 Directions provide the Administration with a certain degree of flexibility as it does not have to follow the formalities involved in rulemaking, e.g., publication in the gazette, laying before Parliament, etc. Therefore, the government may change a direction any time without much formality. Directions are less formal than rules. A direction can be amended by issuing another direction,20 but a rule can only be amended by a rule and not a direction.21 2. IDENTIFICATION OF DIRECTIONS The Administration is continuously engaged in the process of legislation in the sense of laying down general norms for public or administrative behaviour. Administrative legislation may be classified as either delegated legislation22 or directions.23 As is discussed below, this differentiation creates some significant problems for an administrative lawyer. Therefore, it becomes very important to identify whether a piece of administrative legislation amounts to delegated legislation or direction. This may, at times, be a complicated exercise. In doing so, an administrative lawyer may be faced at the very threshold with a problem arising from terminological in exactitude. Expressions like code, rules, regulations which are appropriate for use in the area of delegated legislation, are also used haphazardly and indiscriminately in the area of directions as well. Therefore, the label which may be appended to a particular piece of administrative legislation is not always determinative of its true character. The presentday law regarding directions is in a very unsatisfactory condition as no stable principle appears to emerge from the caselaw to distinguish directions from rules. This is thus an area open to judicial legislation. One general proposition may be cited at this stage. What the government issues under the rulemaking power conferred on it by a statutory provision or some specific constitutional provision,24 will generally be characterised as a rule. On the other hand, directions are issued under the government's administrative, and not legislative, power. Arts. 73(1) and 162 confer administrative power on the Central and State governments respectively. For example, Art. 73(1)says that, subject to the provisions of the Constitution, the executive power of the Union extends to matters with respect to which Parliament has power to make laws.25 Similarly, under Art. 162, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. The administrative power of a government is thus coextensive with its

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legislative power. The Centre can make laws with respect to matters enumerated in Lists I and III, and the States can make laws with respect to matters enumerated in Lists II and III of the VII Schedule to the Constitution.26 These constitutional provisions confer administrative, but no legislative, power on the Central or the State Government, as the case may be.27 Accordingly, whatever the government does under any of these constitutional provisions cannot be regarded as a rule. The extent and scope of the executive power of the modern government is not capable of any precise definition.28 The government can carry on general administration, and so long as it does not infringe a constitutional or legal provision, the width and amplitude of administrative power cannot be circumscribed. Accordingly, the scope for issue of directions by the Administration becomes extremely broad. As a general proposition it may be stated that the government can issue directions on any matter falling within the range of its administrative power so long as the field is not occupied by any statutory provision or a rule. Thus, in Nivedita,29 upholding a State directive on admission of Scheduled Casts and Scheduled Tribes candidates to medical Colleges, the Supreme Court said that as there was no legislation covering the field of selection of candidates for admission to medical colleges, and as the matter fell within its administrative power, the State would be competent to pass executive orders in this regard. In Balaji,30 Supreme Court rejected an argument that under Art. 15(4), reservation of seats in medical colleges for backward classes could be made only by legislation and not by an executive order. In Fernandez v. State of Mysore,31 the Supreme Court characterised the Mysore P.W.D. Code as containing only directions as the said code had been issued by the Government not under any statutory authority but under its general administrative power. In Sadhu Singh v. State of Punjab,32 paragraph 516-B of the Punjab Jail Manual laying down provisions for commutation of sentences has been held to constitute a direction and not a rule. The Manual is based on a resolution of the Government of India which in itself does not have any statutory force. Besides, several other socalled 'codes' and manuals have been held by the courts only amounting to directions and not rules, e.g., provisions of the Education Grantinaid Code of Maharashtra;33 Assessment and Collection Manual, 1917 of the Calcutta Corporation;34 the Orissa Forest Code;35 the Store Purchase Manual of the Kerala Government;36 the West Bengal Government Estates Manual.37 The Exchange Control Manual has been characterised as "a sort of a guidebook for authorised dealers, moneychangers etc." and it is "a compendium of collection, various statutory directions, administrative instructions, advisory opinions, comments, notes, explanations, suggestions etc." Accordingly, the Supreme Court has ruled that it cannot be held that "any and every provision contained in the Exchange Control Manual whether of significance or otherwise is liable to be proceeded against under S. 64of the FERA."38. Issuing certain norms under the designation of 'rules' is not determinative of their true character; these may still be identified by the courts as directions. There are a number of court cases in which provisions though called 'rules' have been held to be in effect only directions and not rules, e.g., the Madhya Pradesh Pre-Medical Examination Rules, 1972, regulating admission to medical colleges in the State;39 the Medical Colleges (Selection for Admission) Rules, 1978, in the State of Karnataka;40 Conduct and Discipline of the Employees of Aided Educational Institutions Rules.41 In State of U.P. v. Kishori Lal,42 the U.P. Excise Rules were characterised as only directions on the basis that they were never published in the gazette as was required by the relevant statute. It was published only in the Excise Manual. Though called a rule, it could not really be regarded as a rule having legal force in the absence of publication in the official gazette, and it could only be regarded as giving some sort of guidance to the concerned officials. under Art. 148(5), the President may, after consultation with the Comptroller and Auditor-General frame rules laying down conditions of service for the persons serving in the Indian Audit and Accounts Service. Accordingly, in Doraiswamy,43 a provision made by the CAG giving weightage to length of service in fixing seniority and contained in the manual of standing orders, was held to be only a direction and not a rule having statutory force. On the other hand, in Virendra Kurnar v. Union of India,44 the Supreme Court characterised an army instruction regarding release of commissioned officers as a rule having statutory force. In Kumari Regina v. St. A.H.E. School45,the socalled 'rules' laying down certain norms for recognition of schools were held to be merely administrative instructions for the following reasons: the rules under the relevant statute could be made for carrying out the purposes of the Act; that was the condition precedent, but the socalled 'rules' in question could be related to no purpose or provision of the concerned statute; the government did not claim to have made them under its statutory power; under the Act, prepublication of the rules was necessary but the socalled 'rules' in question had not been prepublished.46 The socalled 'rules', therefore, could not be related to the statutory authority as these were ultra vires the Act. The 'rules' were treated as having been issued under the general administrative power and so these were characterised as

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directions. The Punjab Government issued certain 'rules' for enforcing a uniform practice in the method of allowing extra supply of canal waters for gardens and orchards. The High Court held that the socalled 'rules' were directions and not rules in the real sense of the term as these were not framed under any statutory power and had not been published in the official gazette.47 Difficulties in identifying of directions are further enhanced at times by the fact that one and the same pronouncement or document issued by the government may be a mixture of rules as well as directions; partly it may be held as constituting directions and partly as delegated legislation. Thus, while Chapter XXIII of the U.P. Police Regulations dealing with disciplinary proceedings in the police force has been held to constitute rules,48 its Chapter XX empowering the police to interfere with the personal liberty of a person,49 and Chapter XI laying down the mode of investigation by the police into criminal charges, have been held to be merely directions,50 as these are based on no statutory foundation, and contain injunctions merely for the guidance of police officers in the discharge of their work. The confusion in the area becomes worse confounded when it is seen that while the provisions of the U.P. Police Regulations interfering with personal liberty were regarded as merely directions,51 in a later pronouncement,52 the Supreme Court held similar provisions in the Madhya Pradesh Police Regulations as rules. The Court explained away its earlier ruling by saying that that decision was based on a concession made by the counsel of the State. The Punjab Jail Manual contains both executive instructions as well as statutory rules, the latter being specifically marked with black line.53 The Foreign Exchange Manual incorporates various statutory and administrative instructions, advisory opinions, comments, notes, explanations, suggestions etc. issued from time to time.54 Directions are not always issued under general administrative power. At times, a statute may contain a provision authorising issue of directions. To take a few examples, under S. 119(1)of the Income Tax Act, the Central Board of Direct Taxes issues directions in the form of circulars.55 Under this provision, circulars have been issued, inter alia,for giving exemptions or concessions to taxpayers when not expressly provided for in the statute;56 for clarifying doubtful points of law by the Board's own interpretation so as to achieve uniformity in the application of the law by different tax authorities;57 for dealing with a new problem,58 or with an ad hoc problem which is not likely to recur again;59 and for providing for procedural matters.60 There are statutes which have provisions enabling the Administration to issue both rules as well as directions, e.g., the Indian Income tax Act. The Medical Council of India is a statutory body which has been created by the Indian Medical Council Act, 1956. It is an expert body constituted to control the minimum standards of medical education. The Council issued certain regulations laying down the eligibility for admission to the M.B.B.S. course in medical colleges. The Government of Madhya Pradesh issued a direction lowering the eligibility in respect of scheduled castes candidates. The question was whether the State Government's direction could prevail over the Council made regulations. Answering in the affirmative, the Supreme Court ruled in State of M.P. v. Km. Nivedita Jain61 that the regulations were only directions and were merely of an advisory nature and, consequently, the State Government could depart therefrom as regards admission of candidates in government medical colleges.62 Then again a question arose regarding the status of regulations issued by the Council laying down qualifications for appointment of academic staff in medical colleges. The Supreme Court characterised these regulations as only directions. The Court stated that the Council could only lay down broad guidelines for prescribing qualifications for appointment of academic staff in medical colleges and such a regulation could not override a rule made by the State Government under Art. 309.63 If rules are made under statutory power, and they cannot he given effect to because of some lacuna, they could still be treated as directions. Non-publication of rules denudes them of any legal force.64 In such an eventuality, such 'rules' can still be treated as directions, or as guiding norms. For example, certain rules were published in the Excise Manual but not in the official gazette. Although called 'rules', they could only be treated to be merely as administrative directions and not rules.65 The courts have propounded this view in order to control discretionary decisions; in the absence of any rules or directions, there may arise the danger of arbitrary decisions being taken by the concerned body. In Indian Airlines Corporation v. Sukhdev Rai,66 the Supreme Court ruled that the regulations made by a statutory body under statutory regulationmaking powers dealing with service matters did not have the force of law and thus were not binding. In this case, the regulations in question were service regulations which had

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been approved by the Central Government and were published in the official gazette as required by the statute establishing the body in question. Still the court held them not binding. The reason advanced for this view was that service or employment was basically a contract which is a matter of private law. This was an extremely debatable pronouncement as there appeared to be no valid reason to declare the regulations as not binding, implying that the regulations were mere directions. The Supreme Court however overruled this view in Sukhdev Singh v. Bhagatram.67 The Court took the view that "Rules, regulations, schemes, by laws, orders made under statutory powers are all comprised in delegated legislation". There is no substantial difference between 'rules' and 'regulations' inasmuch as both are made under powers conferred by the statute and therefore regulations are imperative and have the force of law. under Art. 324, the "superintendence, direction and control" of the conduct of elections to Legislatures in India is vested in the Election Commission. Under this power, the Commission has issued the Election Symbols (Reservation and Allotment) Order, 1966. In APHL Conference v. W.A. Sangama,68 the Supreme Court was not ready to commit whether this order is "a piece of legislative activity" or not. The Court characterised the order as "a compendium of directions in the shape of general provisions to meet various kinds of situations appertaining to elections with particular reference to symbols." The Court did however say that the Commission is empowered to issue directions in general in widest terms necessary to facilitate a free and fair election with promptitude. The Symbols Order is of a general nature and has been given legal effect. The only plausible explanation for the hesitancy of the Court to treat it as delegated legislation may be attributed to the wordings of Art. 324which does not specifically confer a rulemaking power on the Election Commission. The Supreme Court has specifically ruled in A. C. Jose v. Sivan Pillai69 that Art 324 confers only executive, but no legislative, power on the Election Commission. The Court has ruled that legislative power in respect of elections vest in Parliament and State Legislatures. The Commission can issue directions only when no statutory provision exists in that respect. If a valid statutory provision has been made, the Commission must act in conformity with, not in violation of, such a provision. However, where law is silent, the Commission has plenary power under Art. 324(1)to give any direction regarding conduct of elections. In Krishna Mohini v. Mohinder Nath Sofat70 the Supreme Court held that the Circular dated 9.8.1996 and the guidelines issued by the Election Commission of India are consistent with the statutory provisions and correctly bring out the position of law. An authority, statutory or nonstatutory, can also issue directions under its own administrative power.71 (a) Nature of Import Policy A statute may confer a general power to make orders. Such a power may authorise the making of orders of both administrative and legislative in character and, at times, the courts may be hard put to delineating the nature of an order. Further confusion is caused because the government often issues public notices or circulars, outside the statutory provision, under its general administrative power. The problems arising here may be best illustrated by reference to the Imports and Exports (Control) Act, 1947. S. 31(1)of the Act authorises the Central Government, by an order published in the official gazette, to make provisions for prohibiting, restricting or otherwise controlling import or export of any goods. The provision prima facie authorises the making of rules as well as issue of administrative orders. The Imports (Control) Order, 1955 issued under the Act has been held to be legislative in character, i.e. amounting to delegated legislation. The order prohibits import of goods without an import licence. Difficulties have arisen as regards many other public notices, schemes and orders issued from time to time concerning imports or exports, where the government has not indicated the source of authority under which these are being issued, but which are nevertheless published in the gazette. For example, the government periodically announces its imports control policy. This policy is regarded as having no statutory force. The Supreme Court has dilated upon the nature of the Import Policy in Union of India v. Anglo Afghan Agencies72 as follows: It cannot be assumed that merely because the Import Trade Policy is general in terms and deals with the grant of import licences for import of goods and related matters, it is statutory in character. The Policy was evolved to facilitate the mechanism of the Act and the orders issued thereunder. It is not the form of the order, the method of its publication or source of its authority, but its substance, which determines its true character. A large majority of the paragraphs of the scheme are in the form of instructions to

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departmental officers and advice to persons engaged in the export and import business with their foreign counterparts. It may be possible to pick out paragraphs which appear in isolation to be addressed generally and have direct impact upon the rights and liberties of the citizens, but a large number of paragraphs of the scheme refer to matters of procedure of departmental officers and heterogeneous materials. The Policy sets out forms of applications, application fee, designation of licensing officers, classification of importers etc. "There is no pattern of orders or logical sequence in the policy statement: it is a jumble of executive instructions and matters which impose several restrictions upon the rights of the citizens." But the Supreme Court also observed: "Granting that it is executive in character, this Court has held that the courts have the power in appropriate cases to compel performance of the obligations imposed by the scheme upon the departmental authorities." Thus, the policy has been held by the Supreme Court as administrative and not statutory in nature, i.e., only a direction. It can be changed, rescinded or altered by mere administrative instructions issued at any time by the government. The judicial view is that the import policy published from time to time is only a guidance to the concerned administrative officers and the principles contained therein have no statutory force whatsoever, and no person can, merely on the basis of the policy, claim an enforceable right to the grant of an import licence.73 This judicial view is based on the premise that imports require foreign exchange and so they need to be constantly controlled. In granting import licences for an item, the concerned authorities have to keep in view various flexible factors which may have an impact on imports of other more important items and overall economy of the country has to be the supreme consideration in the area.74 A significant result of the proposition that the Policy is administrative in nature is that the Central Government has a right to change, rescind and alter the Policy from time to time through merely administrative directions. Another very important result of this proposition is that the principles stated in the Policy cannot be held binding on the government, and, ordinarily, no person can claim a right to the grant of an import licence enforceable at law merely on the basis of the Policy statement. As the Supreme Court has asserted: "On the basis of an Import Trade Policy, an applicant has no absolute right, much less a fundamental right, to the grant of an import licence."75 But then there are also cases where the courts have enforced some of the provisions of the Import Policy in favour of the importers against the import control authorities. One such case is Oswal.76 The petitioners were a 'trading house' recognised under para 195(4) of the Import Policy, 1981-82. The petitioners acquired by transfer the Replenishment (REP) licence from a manufacturerexporter and sought enforcement thereon in their favour from the Deputy Chief Controller of Imports and Exports. He refused to make the necessary enforcement because of a circular issued by the Joint Chief Controller of Imports and Exports. Para 138 of the Import Policy provided for transfer of REP licences, under which the said licence was enforceable. But the J.C.C.'s circular added one more condition for enforcement which was not there in the Policy. The Supreme Court directed the concerned authorities to enforce the said REP licence. The Supreme Court ruled that the circular in question added a condition which was not to be found in the Import Policy as such. The JCCIE had claimed that the said circular did not modify or amend the relevant para in the Policy but was only clarificatory in nature. Basing itself on this assertion, the Court said: "In view of the respondents' contention that the circular dated 31-8-1981 is only clarificatory of paragraph 138(1) of the Import Policy, 1981-82, and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the circular issued by the Joint Chief Controller of Imports and Exports can validly amend the Import Policy, 1981-82."

The Court ruled that the petitioners' request should have been complied with by the concerned authorities, as the circular was invalid and the rejection of the petitioner's request was unwarranted. In this way, the Court enforced a provision of the Import Policy in favour of the Importers. Apart from the Import Policy, the Central Government issues from time to time other notices concerning imports and exports, and the question arises as to the nature of these notices. The Central Government issued a public notice laying down the principles governing the issue of import licences. It was published in the official gazette. Nevertheless, in East India Commercial Co. v. Collector of Customs,77 the Supreme Court held it not to be statutory in nature for the following reasons: a perusal of the public notice showed that it was intended to give information to the public as regards the procedure to be followed in the matter of filing of applications by different categories of applicants;78 it not only did not on its face purport to be a statutory

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order issued under S. 3of the said Act, but also the internal evidence furnished by it clearly showed that it could not be issued under that section; statutory orders issued under S. 3did state that they were issued under S. 3, the public notice in question did not state so; notifications issued under S. 3were described as orders, but the present communication was described as "Public Notice" and not an order; the statutory orders regulated the rights of the parties, the public notice in question did not do any such thing but only gave information to the public regarding principles governing the issue of licences. The Court thus ruled that the public notice in question was a policy statement administratively made by the government for public information. In this case, the Court heavily relief on the form of the public notice to hold it to be nonstatutory in nature. It needs to be noted that S. 3of the Act in question requires publication of orders made under it in the official gazette; the public notice in question was published in the official gazette but still the Court held that it had been issued under the government's general administrative power and not under S. 3. The Court regarded the said notice as informational and procedural rather than regulatory.79 It was held that such a public notice could not amend the open general license which was issued under the Import Trade Control Order, a statutory Order issued under S. 3of the Act. OGL conferred a valuable right of importing goods from abroad. An unstated consideration which appears to have weighed with the court was that on the character of the public notice in question depended the enforceability of a condition in the import licence authorising the Administration to confiscate imported goods disposed of in breach of the condition. By holding the notice to be a direction, the appellants were saved from incurring the penalty of confiscation of the goods. In this series of cases, Anglo Afghan Agencies80 constitutes a significant pronouncement. The Supreme Court was called upon to decide the nature of an export scheme giving inducements to exporters and published in the gazette. The Central Government's contention was that the scheme had been issued under its executive power; that it was merely an instruction issued by the government to the Textile Commissioner and thus created no right in anyone to get an import licence nor it obligated the government to issue any such licence. On the other hand, the respondent argued that since the scheme was published in the gazette, contained general provisions relating to the grant of import licences and imposed restrictions upon the right of the people, it must be held to have been issued under S. 3of the Imports and Exports (Control) Act and was statutory in nature. The Court did not specifically decide this question, although its preference appears to have been in favour of holding the scheme as nonstatutory in nature, and it decided the controversy on that assumption.81 The Court stated that merely because the scheme was of a general nature, was published in the gazette, and was issued under S. 3of the Imports and Exports (Control) Act, 1947, it could not be assumed that it would be of statutory character. Both "legislative" and "executive" (or administrative) orders could be issued under the section, and the Court felt that the import trade control policy containing the scheme constituted "executive or administrative instructions" and was not legislative in character. It may be commented that it is true that under S. 3of the Act both "legislative" order or an "administrative" order (e.g., a licence issued by the government to an individual) could be issued but an order made under the section, whatever be its character, has to be treated as binding. If the scheme is treated to have been issued under the section, it has to be regarded as binding on the government and hence enforceable. It is only when the government acts under its nonstatutory general administrative power, that an instrument made by it can be regarded as a direction. The Court also stated: "It is not the form of the order, the method of its publication or the source of its authority, but its substance, which determines its true character." It is suggested that this statement may create confusion in so far as it may create the impression that "the source of power" of an order is not a material consideration in determining whether it is a direction or not. The truth is that "the source of authority" under which an order is issued is the crucial and determining factor to decide whether it is a direction or not. It is suggested that an instrument issued under a statutory power and fulfilling all the required formalities such as publication may not be characterised as directions. Similarly, directions issued under nonstatutory general administrative power cannot be given the status of rules whether they are published in the gazette or not. That the source of power is crucial in determining the nature of a government order finds support from another pronouncement of the Supreme Court, viz., Jayantilal Amratlal v. F.N. Rana.82 A notification issued by the President under Art. 258(1)of the Constitution83 entrusting to the commissioners in a State, the powers of the Central Government under the Land Acquisition Act, 1894, concerning acquisition of land for the Centre, was held to have the force of law to the extent of pro tanto amending the Act in question so that instead of the word 'appropriate government' in the Act, the words 'appropriate government or commissioners' were to be read. The Court clarified the position in the following words:84

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This is not to say that every order issued by the executive authority has the force of law. If the order is purely administrative or is not issued in exercise of any statutory authority it may not have force of law. But where a general order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute such conferment of powers must be regarded as having the force of law.

(b) Directions in lieu of rules The Supreme Court has pointed out again and again that when a statute confers rule-making power on the government or an authority, the Government, or the authority concerned, is not immobilised in the absence of rules from functioning under the statute. The Government or the authority can issue directions pending the issue of rules. S. 46(1)of the Electricity (Supply) Act says that Grid Tariff "shall, in accordance with any regulations made in this behalf, be fixed from time to time . . ." S. 79(h)authorises the Electricity Board to make regulations laying down the principles governing the Grid Tariff. In UPSE Board v. City Board, Mussoorie,85 the Supreme Court rejected the argument that the Electricity Board could not fix Grid Tariff till the regulations were made. The Court interpreted S. 46(1)as not envisaging that no Grid Tariff could be fixed until such regulations were made. " S. 46(1)only means", said the Court, that "if there were any regulations, the Grand Tariff should be fixed in accordance with such regulations and nothing more." Framing of regulations is not a condition precedent for fixing the Grid Tariff. The Administration can take recourse to directions in lieu of making rules. S. 40(2)(j) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 empowering the Central Government to frame rules laying down procedure for transfer of property out of the compensation pool and the manner of realisation of the sale proceeds of the property. S. 14 authorises the Government to take such measures as it considers necessary or expedient for disposal of the compensation pool. The Central Government issued directions authorising urban agricultural property to be disposed of by auction. In Surinder Singh v. Central Government,86 the Supreme Court rejected the argument that property could not be auctioned till the rules were made under the Act. The Court observed:87 "Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of Rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the Statute."

(c) The Court explained "The expression 'subject to the Rules' only means, in accordance with the rules, if any. If rules are framed, the powers so confirmed (conferred) on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute."88

The Court ruled that under the Act the Central Government had ample powers to dispose of pool property by auction sale and for that purpose had authority to issue administrative directions. This judicial view lessens the urgency for the government to frame rules under an Act because most of the time it can take recourse to directions instead of the rules and its work is not hampered in any way. Thus, directions take the place of the rules. The reason for the judicial view that when a statute confers rule-making power on the Administration, it may continue to function by issuing directions pending the making of rules, may be the desire on the part of the judiciary to smoothen the administrative process, as it may take some time to frame the rules, and in the meantime, the Administration should not stand still. While this judicial view lends flexibility to the administrative process, it has one negative aspect as well, viz., the urgency to frame rules is minimized; the Administration may take its own time to frame the rules under a statute because the absence of the rules does not hamper it in any way.89

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When the Administration having rule-making power, issues certain norms, it may become difficult at times to identify the nature of the norms in question whether these are directions or rules, especially when the source of power under which the norms have been issued is not indicated. If it is said that the norms have been issued under the statutory power to make rules, then the norms can be characterised as rules without much difficulty. But when the source of power is not indicated, then the norms may amount to either rules or directions. The problem of identification of the nature of the norms becomes complicated as there are no definitive indices to apply to solve the problem. This can be illustrated by reference to service matters. Art. 309 of the Constitution empowers the President, or the Governor, as the case may be, to make rules to regulate the recruitment and conditions of service of persons appointed to the public services and posts in connection with the affairs of the Union or the State.90 The Judicial attitude is that it is not always necessary for the government to make rules under Art. 309to regulate service matters.91 In the absence of the rules, the government can, under its administrative powers, issue directions regarding service matters. The courts have argued that the executive power of a government is co-extensive with the legislative power of the legislature and, therefore, in the absence of a statute, or the rules made under Art. 309, directions can be issued to regulate service matters. Even when service rules exist, directions can still be issued to fill the gaps in the rules. Thus, the Supreme Court has observed in Sant Ram Sharma92 that in the absence of service rules made under Art. 309, there is no bar in the way of the Administration issuing directions as long as such directions are not inconsistent with any rule on the subject. While the Government cannot amend or supersede statutory rules by directions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue directions not inconsistent with the rules already framed.93 Service conditions can be altered by issuing executive instructions where the field is not occupied by statutory rules.94 The Government has the power to issue an administrative order in the absence of any statutory provision governing the field.1 However, in Shish Ram v. State of H.P.,2 the Apex Court held that executive instructions must yield to subsequent statutory rules i.e., statutory rules prevail over executive instructions. Once the statutory rules come into force, the administrative instructions are not to be adhered to.3 A non-statutory order cannot replace a statutory notification even if it purports to do so specifically, though a statutory notification can substitute a non-statutory notification/order.4 The Government cannot amend or substitute statutory rules by administrative instructions, but if the rules are silent on any particular point, the government can fill the gaps and supplement the rules by issuing instructions not inconsistent with the administrative order. The Government also can confer certain benefits on its employees by an administrative order.5 The executive orders/instructions should fill the gaps in the statutory rules and not be inconsistent with them.6 The Registry (PIL Branch) of the Supreme Court was directed not to accept any application or affidavit unless permitted by the Supreme Court. The Apex Court observed that the said direction was not consistent with the Supreme Court rules and could not be treated as a judicial order, rather it was only an administrative order and hence, the Court recalled the same.7 Administrative instructions/ circulars/orders cannot change the principle contained in the statutory rules.8 When power is given to the Government to issue notification, there is inherent in the same power to amend the same.9 A statutory notification may not be extended so as to meet a casus omissus.10 This judicial approach has given rise to a good deal of confusion and uncertainty as, in a number of cases, the courts have been called upon to decide whether the norms laid down by the government regarding a particular service matter amount to rules under Art. 309, or only to directions under its general administrative power.11 In a few cases, the norms laid down for promoting officers from a lower to a higher grade have been held to amount to only directions and not rules under Art. 309.12 It has been held that the government can issue instructions for reservation of posts for scheduled castes and backward classes under Art. 16(4).13 But, the Railway Establishment Code,14 and the portion of the U.P. Police Regulations dealing with police disciplinary matters,15 have been held to be rules and not directions. An idea of uncertainty prevailing in the area of service matters can be had by the way the Supreme Court has treated government memoranda fixing the age of retirement of civil servants. In I.N. Saksena v. State of M.P.,16 the question arose whether a memorandum issued by the Government of Madhya Pradesh fixing the age of retirement of civil servants should be characterised as a rule as having been issued under Art. 309, or only a direction as having been issued under the administrative power of the government. The Supreme Court ruled that it was merely an executive direction and not a rule on the following considerations: the memorandum in question had not been published in the gazette; it was in the form of a letter issued by the

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government to the collectors; its form (it began with the words that "The Government have decided") showed that the government was conveying an executive decision to the collectors to be followed by them. This view was reiterated in State of Assam v. Premadhar.17 Again, in State of Assam v. B.K. Das,18 the Court held an office memorandum issued by the Assam Government on the subject of age of retirement to be merely a direction and not a rule under Art. 309. After some time, a similar question arose in relation to central services. To begin with, Rule 56of the Fundamental Rules fixed the age of retirement at 55. Then an office memorandum was issued by the Central Government raising the age of retirement to 58 subject to certain exceptions. The date from which the memorandum was to be effective was mentioned therein. Thereafter Rule 56 was amended to incorporate the substance of the office memorandum. The Supreme Court ruled in Naidu19 that the memorandum must be held to have been issued under Art. 309and to have become effective on the date mentioned therein. There was nothing in the memorandum to suggest that it was not to be effective until Fundamental Rule 56 was consequently amended. In Naidu,the Supreme Court made no reference to the earlier Saxena case. The Naidu pronouncement was made on 9-1-73, i.e. a few days after Das which judgment was delivered on 22-12-72. Naidu took no notice of Das nor did it explain as to why it took a view different from that in Das.20 The only explanation for the Naidu ruling may be that the purport of the office memorandum in question was incorporated later into the relevant rule, and so the Court may have thought it fit and expedient to treat the memorandum as a rule from the very beginning to avoid any confusion. Another possible explanation may also be that originally the age of retirement was prescribed through a rule; this age was extended through an office memorandum. As a rule cannot be amended through a direction, the only way in which the advantage could be given to the employees was to treat the memorandum as a rule and not a direction. A very significant judicial pronouncement on directions is V.T. Khanzode v. Reserve Bank of India.21 The question was regarding the status of regulations concerning staff seniority laid down by the Bank in Administrative Circular and office order and which had been acted upon by the Bank in drawing seniority list. The decision of the Bank was challenged by some staff members. The Reserve Bank is a statutory corporation's set up by the Central Government. S. 58(1)of the Reserve Bank Act, 1934 confers power on the Central Board of Directors to make regulations in order to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act. under S. 58(1), the Bank can make regulations providing for service conditions of the Bank's staff. This regulation-making power is subject to two conditions: (i) prior sanction of the Central Government; (ii) laying of the regulations before each House of Parliament. Nevertheless, the Court ruled that the 'regulations' in question were merely directions as they had not been made under S. 58(1), but under the administrative power of the Bank given to it by S. 7(2) of the Act. According to S. 7(2), the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors. On this point, the Court observed: "Matters relating to the service conditions of the staff are, preeminently, matters which relate to the affairs of the Bank. It would therefore be wrong to deny to the Central Board the power to issue administrative directions and circulars regulating the conditions of service of the Bank's staff."

Thus, S. 58(1) is not the sole repository of the power of the Bank to provide for conditions of service of the Bank staff. S. 58(1) does not prohibit issuance of such directions or circulars. To do so would be "patently to ignore the scope of wholesome powers" conferred on the Bank by S. 7(2). The Court accepted the proposition that a statutory corporation can perform only such acts as are authorised by the statute creating it. It cannot exceed the powers beyond what a statute provides expressly or by necessary implication. If an act is neither expressly nor impliedly authorised by the parent statute, it must be taken to be prohibited. Power to regulate conditions of service of the staff lies with the Bank under S. 58(1), but that is only an enabling provision and it "does not justify the argument that staff regulations must be framed under it or not at all." The Bank can regulate conditions of the service of the staff either under S. 58(1) or administratively under S. 7(2). So long as staff regulations are not framed under S. 58(1), the Bank may issue administrative circulars for the purpose or providing for service condition of its staff under S. 7(2). The Court observed: "... the power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subjectmatter on which a rule or regulation can be framed, until it is so framed. The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter. Its express provisions and necessary implications must at all events be observed scrupulously."

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The next question was to ascertain whether the staff regulations in question had been issued under S. 7(2) or S. 58(1), and the Court ruled that they had been issued under S. 7(2). The Court advanced the following reasons for this view: First, the regulations had not been made with the previous sanction of the government as is required by S. 58(1). Secondly, while issuing the regulations, the source of power under which they were made was not mentioned. The Court conceded that failure to do so was not by itself conclusive of the matter, if otherwise the concerned authority has necessary power to do so. But if the common course of manner in which the power has been exercised establishes that while exercising power under the section, the practice has been to mention the source, that would be a relevant factor in determining whether the regulations have statutory force or not. The Court noted that various other regulations promulgated by the Bank did mention the source of power in the recitals. In such a context, the absence of such a recital in case of the regulations in question led to the inference that they were not made under S. 58(1). The staff 'regulations' being in the nature of directions, they could be altered or amended by administrative circulars. The Court also upheld the retrospective operation of the seniority scheme on the ground that it was necessary to rectify imbalances and anomalies created by the previous method to determine seniority. The choice of the date to give effect to the scheme seemed to be "the best solution in the peculiar circumstances of the case."22 The case blurs the distinction between rules and directions. One can understand as to why the Bank would prefer to make service regulations under S. 7(2)rather than under S. 58(1). That way the Bank enjoys more flexibility, but that precisely is the reason to discountenance resort to directions rather than to rules. The basic question is: should the courts countenance use by a body of its administrative power in preference to its legislative power? Should the courts accept making of directions instead of rules when the body concerned has rulemaking power ? From the point of view of the affected person, it is preferable to have rules rather than the directions. There are several reasons for this: making of rules is a more formal affair; it is subject to the greater discipline of Administrative Law, e.g. publication, laying before Parliament, previous sanction of the Central Government. Any change made in the rules will also be subject to the same conditions. The parent statute may hedge the rule-making power with some procedural formalities. But all these safeguards are bypassed when resort is had to directions rather than to rules. Changes can be made in the directions frequently without any such formalities. The administrative power of the Bank under S. 7(2)is subject to governmental directions, if any issued. On the other hand, the regulationmaking power of the Bank under S. 58(1) is subject to the 'previous sanction' of the Central Government. Minimising the difference between S. 58(1) and S. 7(2), the Court said, "In either case, the Central Board has to abide by the decision or directions of the Central Government." "The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act". This, however, does not seem to be a correct approach. It is one thing to seek prior approval of the Government (as is necessary in case of regulations), but quite another to make directions and let the Government raise any objections thereto later if it so wants. That way the government control is weakened, and the freedom of the Bank enhanced. The decision of the Supreme Court in Khanzode will have the following undesirable effects: (i) (ii) (iii)

Statutory bodies will be encouraged to resort more and more to directions instead of rules or regulations because this way they have more manoeuvrability and are subject to less controls; The courts will have to hold, to avoid the staff being adversely affected, that the directions are binding; and, thus, it will confound the separation and distinction between rules and directions.

The only one justification in favour of the Court's decision in the instant case is that since 1948, the Reserve Bank has been resorting to the technique of directions to regulate staff matters and to hold the directions now as unauthorized would have been to throw away everything in confusion. But, after Khanzode,it remains doubtful whether the Reserve Bank, or any other statutory body for that matter, will ever resort to making regulations for the purpose. The better course seems to be for the Central Government administratively to encourage the statutory bodies to resort as far as possible to their statutory power to make regulations and rules rather than use their administrative power to issue directions so that the ultimate government control can be made effective over these bodies.

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The Khanzode ruling has been applied by the Supreme Court recently in V. Balasubramaniam v. T.N. Housing Board.23 A statutory body had power to make service regulations with the previous approval of the State Government. The corporation made regulations laying down norms for the promotion of the staff members and got the approval of the government. The regulations were not however published in the official gazette as required by the T.N. General Clauses Act. The Court held that the corporation could appoint staff members without making any regulations in the exercise of its administrative power, and can also issue directions. The 'regulations' were not enforceable as such in the absence of publication in the official gazette, but could be treated as directions. Later, the corporation sought to modify these 'regulations' by making fresh regulations but did not obtain the sanction of the State Government thereto. The Court ruled that the norms for promotion laid down in the earlier 'regulations' could only be relaxed by the corporation passing a resolution and obtaining the government's approval. The earlier norms having been laid down with the government's approval could not be changed without obtaining government's approval. Any such action would be arbitrary in character. The circulars issued by the Union of India, being administrative in nature, could not override the constitutional provision.24 In State of Assam v. Radha Kanoo,25 the Supreme Court held that the administrative instructions cannot override the statutory operation of the Regulations and Rules nor do they give legitimacy to illegal acts done in compliance of them; they cannot override the law of the land as laid down by the Supreme Court either.26 Rules and regulations or administrative instructions can neither be supplemented nor substituted under any provision of the Act or the rules and regulations framed thereunder. The administrative instructions issued or the notes attached to the rules, which are not referable to any statutory authority, cannot be permitted to bring about a result which may take away the rights vested in a person governed by the Act. The Govt. however, has the power to fill up the gaps in supplementing the rules by issuing instructions, if the rules are silent on the subject provided the instructions issued are not inconsistent with the rules already framed.27 Subordinate legislation, here rules, cannot be supplemented by executive order unless the parent Act expressly empowers the Government for it.28 In Prabhash Chand Jain v. State of Haryana,29 the Apex Court held that a circular issued in pursuance of a policy decision of the Govt. cannot be overridden by a letter/advice of the Chief Secretary which does not even indicate that it was issued under the instructions of the Govt. The Handbook for Returning Officers contains instructions which have been issued by the Election Commission for the smooth holding of the election and being merely instructions cannot override the provisions of the statute, rules or the order.30 Similarly, the Apex Court held that a memorandum issued by the Govt., being an administrative instruction, cannot override a scheme which is published under a statutory provision and is itself a law and can be duly and legally modified only under the provisions of the statute31 and in case of inconsistency or conflict, the statutory provisions will prevail over the executive instructions,32 in spite of their prior existence.33 Specific instructions prevail over general instructions34 and an office memorandum (OM) would not apply in the face of specific provision in the rules.35 So also under the guise of clarificatory instructions the right of the employee which has already accrued under the Regulations, cannot be taken away with retrospective effect.36 Provisions of statutory rules cannot be taken away by a suggestion of the executive until and unless they are appropriately amended.37 Administrative instructions do not have any flavour of statutory rules38 and could not be issued in derogation of the statutory regulations.39 The Legal Remembrancer's Manual is merely a compilation of executive orders and is not a "law" within the meaning of Art. 13 of the Constitution.40 A bus conductor was charged for not issuing tickets to the passengers and on enquiry, having been found guilty of the charge, was removed from service, the appeal against which was dismissed by the Services Tribunal and the High Court. It was contended before the Apex Court that there was flagrant violation of departmental instructions in conducting the inquiry against the employee. The employer U.P. Road Transport Corporation had issued instructions to transfer the inquiry to the independent agencies, like retired judicial officers but, while such an inquiry was pending contrary to the instructions issued, it was transferred to a departmental officer. Therefore, it was in violation of the departmental rules, natural justice and fair play. The Apex Court held that the instructions were only proper guidelines for the authorities. It was observed that it was an appropriate case where the power to entrust the inquiry to an officer of their own department was exercised. Therefore, it was held that conduct of such an inquiry was not vitiated by any error of law not it is violative of the principle of fair play.41

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(d) Tests for Identification of Directions No clear principles seem to emerge from the caselaw so as to distinguish a direction from a rule. However, on the basis of the above discussion, following propositions may be stated for the purpose of identifying a government pronouncement as a direction or a rule: (1)

(2) (3)

When it mentions the statutory provision under which it has been issued, it should be treated as a rule if the specific statutory provision authorises the making of rules, and it should be treated as a direction, if the specific statutory provision authorises the issue of directions. The source of power under which the said instrument is issued is the crux of the matter. When the government issues some norm (howsoever designated, i.e. notification, public notice etc. ) under its rule-making power, and all the prescribed formalities have been complied with, these should invariably be treated as rules and not directions. Difficulties in identification arise when a government instrument is silent as regards the source of power under which it has been issued, and it can possibly be related either to statutory or general administrative power. In such a case, its identification may be helped by considering the following factors: (i) form of the instrument in question; (ii) compliance or non-compliance with the procedural formalities prescribed for the making of delegated legislation in the parent statute; (iii) publication of the instrument in the gazette may be relevant for the purpose. If a statutory provision envisages making of rules by publication in the gazette, and the instrument in question has been so published, it may provide a strong indication that the instrument may have been issued under the statutory provision; but if it is not so published then it may not be relatable to the statutory provision. (iv) the substance and content of the instrument in question may be a relevant factor to determine the source of power from which the instrument may have emanated which will ultimately determine whether to characterise it as a rule or a direction. For this purpose, it may be helpful to consider the following questions: (a) Does the instrument in question impose obligations on individuals? (b) Is it merely informational or procedural in content or it deals only with the machinery of administration? (c) Does it impose obligations on the Administration? (d) Does it confer rights and privileges on the individuals?

In cases (a) and (b), the instrument may be held to be non-statutory and hence a direction. As happened in the East India case,42 it may be safer to hold an instrument imposing obligations on individuals as a direction so that the interests of the affected individuals may be protected. In situations (c) and (d), it may be safer to treat the instrument as a rule if all other conditions prescribed by the relevant statutory provision for rule-making have been fulfilled so that the concerned individuals may assert their rights or bind the administration to its selfimposed obligations. When government lays down administrative machinery provisions (see (b) above), the indication is that it is a direction and not a rule. Reference may be made here to an English case.43 The Secretary of State under his rule-making power under the relevant statute issued rules of practice for guidance of immigration officers and tribunals entrusted with the administration of the Immigration Act. The Court of Appeal characterised them as "not rules of law" saying: "They are not rules in the nature of delegated legislation so as to amount to strict rules of law", but, nevertheless, to some extent, "the courts must have regard to them." 3. ENFORCEABILITY OF DIRECTIONS The present day law regarding the enforceability of directions is in a flux as some directions may be held non-enforceable while others may be held enforceable. But on what basis is such a distinction made? No

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general or consistent or clear principle seems to emerge from the caselaw in this regard. Since the directions are not deemed to be 'law', the basic rule developed by the courts is that a direction is not enforceable in a court.44 As against this, delegated legislation is legally enforceable.45 Accordingly, a direction does not confer an enforceable right on a person, or impose an obligation on the Administration or any person. Even if the Administration violates, misapplies or refuses to apply or ignores a direction, the affected person may not be able to claim any remedy against the Administration through a court of law.46 On parity of reasoning, the Administration also cannot enforce an adverse direction against a person. Therefore, misconstruction or misapplication of a direction does not amount to an error of law. Even when a direction is couched in mandatory terms, and prima facie seeks to impose an obligation either on an individual or the Administration, the non-compliance of the direction leads to no court action. The validity of an administrative action taken in breach of a direction cannot be challenged and the court will refuse to issue any writ even when there is a patent breach of a direction.47 In S.K. Agarwalla v. State,48 the High Court held that non-compliance by the concerned officers of the Orissa Forest Code did not confer any right on the petitioner, and it was not a justifiable matter as the code was merely administrative in nature and had been issued by the government under its executive power to give instructions to its servants as to how they should act in certain circumstances. Similarly, breach of an executive instruction laying down the procedure to be followed by government officers in the matter of granting leases of forest lands for cultivation confers no right on a person seeking to quash the administrative action allegedly taken in violation of these instructions.49 As the import policy is a direction, no person can claim an enforceable right to the grant of an import licence merely on the basis of the import policy.50 On parity of reasoning, if a right to an import licence has accrued to an individual, it cannot be denied to him merely on the basis of a change in the import policy.51 When conditions of service of the employees are prescribed by a cooperative society in its byelaws, an industrial tribunal can vary the same as the byelaws do not have the force of law.52 Recently, in J.R. Raghupathy v. State of A.P.,53 the Supreme Court has applied the rule of nonenforceability to certain directions issued by the State Government. The State Government had statutory power to decide location of mandal headquarters and the collectors were asked to send proposals for the purpose for government's consideration. The government issued certain guidelines for the collectors to keep in mind while making their proposals. The Court ruled that the guidelines were not enforceable as these were merely departmental instructions meant for the collectors to regulate the manner in which they should formulate their proposals and, thus, had no statutory force. Again in Narendra Kumar v. Union of India,54 the Supreme Court has stated the basic rule that the guidelines being non-statutory are not enforceable. "A policy is not law. A statement of policy is not a prescription of binding criterion," said the Court. And, further, "because guidelines by their very nature, do not fall into the category of legislation direct, subordinate or ancillary", "they have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same". A direction cannot be given retrospective effect55; so can be a notification entitling a benefit.56 In Sikkim Subba Associates v. State of Sikkim,57 the Supreme Court held that subordinate legislation in the form of rule or notification can not be made or unmade retrospectively unless any power in that regard has been specifically conferred upon the rule-making authority. A mere retrospective deletion could not per se have the effect of nullifying or destroying the orders passed or acts already performed when such powers were available. In the instant case Rules 149 and 150 of the Sikkim High Court (Practice and Procedure) Rules, 1991 were deleted with retrospective effect. Amendment in administrative order cannot have retrospective effect. It would be applicable only to those persons who were appointed after the date of amendment.58 Usually, a writ of mandamus is not issued to enforce or not to enforce a direction which has no statutory force.59 An important pronouncement on this point is State of Assam v. Ajit Kumar Sarma.60 The Government made "rules" to regulate giving of grant-in-aid to private colleges. One of the "rules" affected teachers' right to take leave. One teacher asked issue of mandamus to the State through the Director of Education for not giving effect to the said "rule". The Supreme Court held that the said "rules" were really directions having no statutory force and so no mandamus could be issued against its enforcement. Where such conditions of grant-in-aid are laid down by mere executive instructions it is open to a private college to accept those instructions or not to accept them. If it decides not to accept the instructions it will naturally not get the grant-in-aid which is contingent on its accepting the conditions contained in the instructions. On the other hand, if the college accepts the conditions contained in the instructions it receives the grant-in-aid. If however having accepted the instructions containing the conditions and terms, the college does not carry out the instructions, the Government will naturally have the right to withhold the grant-in-aid. That is however a

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matter between the government and the private college concerned. Such conditions and instructions as to grant-in-aid confer no right on the teachers of the private colleges and they cannot ask that either a particular instruction or conditions should be enforced or should not be enforced. The Court went on to say that the instructions confer no right on teachers and they cannot apply for issue of a mandamus seeking enforcement or non-enforcement of the instructions, even if indirectly there may be some effect on them because of the grant-in-aid being withheld in whole or in part. The Government of Andhra Pradesh issued a code of conduct for ministers contained in a government order. The 'code' was issued by the General Administrative Department. The A.P. High Court has ruled that the code of conduct not being statutory in nature only amounts to guidelines for the ministers to follow and observe which cannot be enforced by the courts. The 'code' confers no rights on the citizens and it does not say if the citizens can enforce the same. The court gave a similar treatment to the code of conduct for ministers (Central and State) issued by the Ministry of Home Affairs, Government of India.61 The principle of non-enforceability of directions has been applied even when the same were issued under a statutory provision. S. 43-Aof the Motor Vehicles Act, 1939,62(as applicable to Madras) authorised the State Government to issue such orders and directions of a general nature as it may consider necessary, in respect of any matter relating to road transport, and the transport authority concerned "shall give effect to all such orders and directions." Even so, the Supreme Court held in Raman and Raman v. State of Madras63 that the directions issued under S. 43-A did not have the status of law or rules and could not be enforced at the instance of the affected party, as S. 43-A conferred administrative and not legislative power. The Court pointed out that the statute provided not only for the issue of directions in S. 43-A, but also for the making of rules in S. 133. For rule-making, certain formalities, like prepublication of the draft rules, consultation of interests, laying before the legislature, publication of the rules in the gazette, were required to be observed. But all these salutary safeguards could be ignored when directions were issued under S. 43-A. It would create an incongruity if the government could issue directions in respect of those very matters for which it could make rules subject to some safeguards. Directions need not be published; these could be issued in the form of secret communication to the concerned authorities: Rules and directions could not thus be equated, otherwise the rule-making power would become redundant. The Court also observed that whenever the Act intended to affect the rights of persons, it used the term 'Rules'. Directions, the Court opined, were appropriate to control administrative functions, but the rules affected private rights. The declaration in S. 43-A that directions would be binding on the concerned authorities also indicated that these were not law, for if the directions were law, no such declaration would have been necessary.64 It may be that, to begin with, the courts applied the principle of non-enforceability of directions somewhat strictly with a view to protect the individual in so far as directions are usually issued secretly and without much formality. But then, a realisation dawned on the courts that to treat directions as unenforceable rigidly in all situations may cause injustice to individuals, for, some directions may confer benefits and some may control broad discretionary power vested in the Administration. Accordingly, the courts have relented somewhat in this regard. It also needs to be pointed out that while a direction may not be binding in a formal sense, it does not follow that an administrator may disregard it with impunity. The sanction underlying directions is administrative discipline. Administrative authorities are expected to follow the directions issued by their superiors, and breach thereof by subordinate officers may lead to disciplinary or other appropriate action against them. The point is that even when breach of a direction by an officer may not give rise to a court case, it may still raise a question between him and his superiors. An administrative remedy may be available to a person interested in the enforcement of a direction, e.g., he may go to a higher authority in the administrative hierarchy and plead for enforcement of the direction in question in his favour already issued by the concerned department. The moral is that in most cases, the remedy available to a person for breach of a direction favourable to him may be intra-department and administrative in nature rather than through a court. But then, what happens when the department itself may be unwilling to enforce a direction it has issued? Therefore, as said above, the courts have started adopting a flexible attitude on the question of enforcing directions. Today a stage seems to have been reached when it is not possible to say that the statement that directions are not enforceable is universally true in each and every situation. A bland statement that directions are not enforceable is rather wide off the mark at present. One reason for the change in judicial view may be that in certain situations, departments avoid making rules (see Khanzode)65,and continue to take recourse to directions because, from the point of view of the Administration, directions are flexible, convenient to make, easy to amend, less formal and timesaving. If courts adopt a rigid stand and treat

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directions as non-enforceable always, there may arise cases and situations when persons are adversely affected, or may be deprived of some benefit, without having any remedy. To avoid such a contingency, the courts have taken cognisance of certain directions and treated them as having legal effect and enforced them. This has, no doubt, blurred the distinction between rules and directions, and, at times, such distinction reaches the vanishing point. It is becoming more and more difficult to draw a neat distinction between rules and directions. But, while the principle of non-enforceability of directions has not remained immutable any longer, it is not possible to draw from the case-law any general and definitive proposition as to when, and in what circumstances, will the courts treat a direction as enforceable. There is a lot of ad hocism in judicial approach in this area as the courts prefer to deal with each case on its merits rather than develop some general norms for the purpose, and this is introducing complexity in the law relating to directions. The whole law concerning directions is yet in an evolutionary stage and is open to judicial legislation. It appears that, in service matters, directions are now enforced. Perhaps, as a general proposition, it may also be stated that a direction conferring a benefit on a person may be enforced.66 it seems to be clear that directions cannot impose liability on any one, only rules can do so. But directions may confer benefits. First, there are cases where, and especially in the area of service matters, in the absence of rules, directions prescribing service conditions have been held enforceable. As for example, in U.O.I. v. KP. Joseph67,an office memorandum issued by the Government provided for fixing of salary of re-employed ex-military personnel. The respondent wanted the memorandum enforced as it was favourable to him, but the government contended that the memorandum being an administrative direction conferred no justiciable and enforceable right on the respondent. The government argued that the very foundation for the issue of mandamus is the existence of a legal right, and as an office order confers no justiciable or enforceable right on the respondent, no writ could be issued directing fixation of pay in accordance with the memorandum.68 Rejecting the argument, the Supreme Court ruled otherwise observing:69 Generally speaking, an administrative order confers no justiciable right, but this rule, like all other general rules is subject to exceptions... To say that an administrative order can never confer any right would he too wide a proposition. There are administrative orders which confer rights and impose duties.

Accordingly, the Court ruled that in the instant case the memorandum conferred on the respondent the right to have his pay fixed in the manner specified therein and that it formed a part of the service conditions. The Court saw no reason why it should not enforce that right of the respondent by issuing mandamus. The Court did however take precaution to say that it was not laying down any general proposition on this question. It may be noted that in this case, the direction was enforced as it conferred a benefit on the respondent.70 In Doraiswamy,71 the writ petition of the petitioners was dismissed as their case did not fall within the direction as amended. In Baleshwar;72 an office memorandum regulating seniority in certain government posts was held binding as the government had been following the same for nearly two decades. The Government issued a direction requiring 8 years' experience for promoting Income Tax Officers to the posts of Assistant Commissioners of Income Tax. No such requirement was laid down in any rule .issued under Art. 309. The Supreme Court emphasized that directions were followed as guidelines on the basis of executive policy.73 In Union of India v. Somasundaram,74 the Supreme Court had to consider the question whether the office memorandum issued by the Government of India in 1976 consolidating all the previous instructions governing functioning of, and the procedure to be followed by, departmental promotion committees should be regarded as binding or not. The Court pointed out that the norms regarding recruitment and promotion of officers can be laid down either by a law made by the legislature or by rules made by the government under Art. 309, or by means of executive instructions issued under Art. 73 or Art. 162 of the Constitution. The office memorandum in question was characterised as a complete code with regard to the matters dealt with by it. There was nothing in the rules repugnant to the instructions contained in the memorandum issued under Art. 73. Therefore, held the Court, the memorandum "is entitled to be treated as valid and binding on all concerned."75 In Juthika,76 a provision in the memorandum issued by the government as regards the qualifications of the staff of higher secondary schools run by the government was held to be binding. The Court did not go into the question whether the said memorandum was to be treated as a direction or a rule. The Supreme Court has ruled recently that the matter of making appointments to

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state services is an executive matter. When valid service rules have been made, the government must act according to these rules"..... any order, instruction, direction or notification issued in the exercise of the executive power of the State which is contrary to any statutory provisions is without jurisdiction and is a nullity." But when no such rules exist, or the existing rules are inoperable for some reason, the government can act in the exercise of its executive power and make appointments: when valid rules exist, the government must act according to the rules. But, "it is the operative statutory provisions which have the effect of ousting executive power of the State from the same field." In the instant case, service rules made by the State Government were inoperable owing to the non-appointment of the State Public Service Commission. Accordingly, the State Government made some appointments by-passing the rules after issuing some directions and the Court held these appointments valid.77 In. V. Balasubramanian v. T.N. Housing Board,78 promotions of staff members made by the board not in accordance with the directions issued by it were invalidated by the Supreme Court.79 Directions have been enforced in some other areas as well. For example, in J.C.C. Imports and Exports v. Aminchand,80 the Supreme Court enforced the import policy in favour of the petitioner and directed the grant of import licence in accordance with this policy.81 But reference may also be made to Andhra Industrial Works v. Chief Controller of Imports.82 In Bant Singh v. Man Singh,83 certain directions issued by the Government laying down a uniform practice to allow extra canal waters for gardens and orchards were held enforceable because of the following reasons: (1) the directions only supplement, but do not infringe, any rules issued under the relevant Act; (2) the directions prescribe "a complete and detailed procedure" for supply of water; (3) In the absence of these directions, the concerned authorities may make arbitrary decisions regarding allocation of water; (4) the directions have been followed for over three decades. Accordingly, the Court quashed the order of the authorities sanctioning water to one and not the other applicant saying that the procedure laid down in the said directions was mandatory and that the authorities must strictly follow the same and that the order in question was arbitrary.84 In some cases, directions issued under statutory power have been enforced. under S. Section 47of the Motor Vehicles Act, 1939, a regional transport authority, while considering an application for a stage carriage permit, is enjoined to have regard, inter alia,to the "interests of public generally". The State Government issued a direction under S. 43-Aprescribing "place of business" on the route for which a permit was applied for as one of the considerations for issuing the permit. In KM. Shanmugam v. S.R.V.S. Ltd.,85 the Supreme Court reiterated the position, as laid down in Raman,86 that directions could not add to, or subtract from, the considerations prescribed under S. 47but could only afford a reasonable guidance for exercising the jurisdiction by the authority. The existence of a "branch office" (place of business) in the case of an applicant was a relevant fact under S. 47for deciding the issue of "interests of public generally." Government's direction may or may not mention this fact to be taken into consideration by the licensing authority. The issue of such a direction only emphasizes a "relevant fact" which an authority is bound to take into consideration even if such an instruction was not issued. If the concerned authority ignores the said relevant consideration, it transgresses the provisions of S. 47and commits an error of law which could be remedied by the court by issuing certiorari. It is true that in Shanlnugam the Court took pains to emphasize that it was seeking to enforce not a direction as such, but the statutory law itself, nevertheless, there appears to be little doubt that the said direction did play a significant role in conditioning judicial thinking. The so-called "relevant fact", that of having a branch office on the route in question, was derived by the court (and thus made a part of the law) from nowhere else but from the direction in question. One can only wonder whether the Court would have imported the so-called "relevant fact" under S. 47without the same having been laid down in the direction in question.87 The reason for the Court's cautious attitude was that the concerned body was exercising a quasi-judicial function and so the Court did not want to say that the direction was binding on such a body.88 under S. 5(8) of the Income tax Act, 1922, the Central Board of Revenue could issue instructions and directions to all officers employed in the implementation of the Act. Under the second limb of S. 5(8), "all officers and persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Central Board of Revenue." This provision is now reproduced in S. 119 of the Income Tax Act, 1961. Going back to S. 5(8), the Supreme Court ruled in Navnit89 that a circular issued by the Board of Revenue under S. 5(8) was binding on all officers engaged in the implementation of the Income Tax Act.

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The circular in question was beneficial to the assesses. Income Tax Rule 33gave an option to the income tax officer to tax income of foreign concerns accruing in India "in such other manner as the income tax officer may deem suitable." The Board issued a notification laying down the basis which an income tax officer could apply for the purpose. The assesses claimed benefit of the said instruction but the I.T.O. denied it to him. The matter ultimately came before the Supreme Court in Ellerman Lines v. Commissioner of Income Tax,90 West Bengal. The Court ruled that though the circular deviated from the Act yet, because of S. 5(8), it was binding on all officers employed in the execution of the Income Tax Act, and, therefore, the Court accepted the assessee's contention. Except invoking the phraseology of S. 5(8), the Court gave no other reasons for its view nor did it take notice of the previous cases holding the directions non-enforceable.91 The Court merely quoted its earlier observation in Navnit. It is difficult to reconcile Ellerman with Raman. Ellerman deviated from, and threw a doubt upon the principle of nonenforceability of directions. It needs to be emphasized however that the Court's view was favourable to the assessee.92 To the same effect was Varghese93 where the court accepted a direction as regards the interpretation of a provision in the Income-tax Act. The Court said in Varghese that circulars issued under S. 119were binding on all officers "even if they deviate from the provisions of the Act." In M/s Keshavji Ravji & Co. v. I.T. Commr,94 the Supreme Court stated that the circulars issued by the Central Board of Direct Taxes "beneficial to the assesses and which tone down the rigour of the law issued in the exercise of the statutory power under S. 119" were binding on the authorities in the administration of the Act. However, a circular could not pre-empt judicial interpretation of a statutory provision or impose on the tax-payer a burden higher than that imposed by the Act itself.95 S. 13(1) of the Wealth Tax Act is pari passu with this provision in the Income-tax Act. In the context of S. 13(1), the Gujarat High Court has observed: "Thus the legal position is that benevolent circulars are binding on all income-tax officers and wealth-tax officers, as the case may be, and on all persons employed in the execution of the Wealth-tax Act."96 The judicial view regarding enforceability of income tax circulars has now undergone a change. In Kerala Financial Corp. v. CIT,97 the Supreme Court has now ruled that circulars "cannot detract from the Act." The Court has ruled emphatically that circulars cannot override any provisions of the Act or detract from the Act. According to the Court: "... What S. 119has empowered is to issue orders, instructions or directions for the 'proper administration' of the Act or for such other purposes specified in sub-section (2) of the section. Such an order, instruction or direction cannot override the provisions of the Act; that would be destructive of all the known principles of law as the same would really amount to giving power to a delegated authority to even amend the provision of law enacted by Parliament. Such a contention cannot seriously be even raised."

Theoretically, the ruling of the Supreme Court is in accord with the concept of non-enforceability of directions. But, from a practical point of view, it' will now become practically impossible for Central Board of Direct Taxes to confer concessions on the tax payers outside the Income-tax Act through the medium of directions. The Revenue will lose a flexible instrument to relax the language of the law to mitigate genuine hardships of the tax-payers. If this position is to be maintained then the only way out is to suitably amend S. 119 of the Income-tax Act. However, in South India Viscose Ltd. v. Commissioner of Incometax,98 the Supreme Court did not consider it necessary to go into the question whether the circulars/instructions issued by the Central Board of Direct Taxes could be taken into consideration for the purpose of construing the provisions of Rule 5 of the Income-tax Rules, 1962 and Appendix I to the Rules because the circulars/instructions concerned are in consonance with the construction placed by the Supreme Court on the said provisions. The University issued certain guidelines to the colleges regarding admission to the B.Ed. course. The High Court ruled in Kurukshetra University v. Rural College of Ludhiana99 that the guidelines were squarely within the ambit of the ordinance duly framed under the University Act, and therefore, the colleges would be bound to observe these guidelines. The court did not clarify whether it regarded the guidelines in question as rules or directions. Rules of admission to medical colleges in the State framed by the government in exercise of its executive power were held to be enforceable in Potdar.1 The High Court ruled that the students were entitled to have these 'rules' enforced if the authorities failed to implement them for any erroneous and irrelevant reasons. In Nivedita,2 a directive relaxing minimum qualification for admission to medical colleges in the State in favour of Scheduled Castes end Scheduled Tribes candidates was held enforceable.

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The courts have generally recognised the power of the State Government to lay down criteria for admission to such courses as post-graduate course in Medicine in educational institutions run by it by issuing directions in the exercise of its administrative power.3 As has already been stated, there ere cases where some aspects of the import policy, which is regarded as administrative and non-statutory, have been enforced.4 In British Machinery Supplies Co. v. Union of India,5 the Supreme Court held that the customs administrative circular classifying items was at least binding the department as they had made it known to all concerned. In K.P. Varghese v. ITO,6 the Supreme Court held that the circulars issued by Central Board of Direct Taxes (CBDT) in exercise of its powers under Section 119 of the Income-tax Act, 1961 are legally binding on the Revenue and this binding character attaches to the circulars "even if they be found not in accordance with the correct interpretation of sub-section 2 of Section 52 of the I.T. Act, 1961 (since omitted) and they depart or deviate from such construction." They are binding, even if they deviate from the provisions of the I.T. Act, 1961.7 In UCO Bank v. CIT,8 dealing with the legal status of such circular, the Apex Court observed: "Such instructions may be by way of relaxation of any of the provisions of the sections specified there or otherwise. The Board thus has power inter alia to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under Section 119 of the Income Tax Act which are binding on the authorities in the administration of the Act. under Section 119(2)(a),however, the circulars as contemplated therein cannot be adverse to the assessee. Thus the authority which wields the power for its own advantage under the Act is given the right to forego the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manner as laid down in Section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws maybe correctly applied. Hard cases which can be properly categorised as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities."

In CIT v. Anjum M.H. Ghaswala,9 it was pointed out that the circulars issued by CBDT under Section 119 of the Act have statutory force and would be binding on every Income-tax Authority although such may not be the case with regard to press releases issued by CBDT for information of the public. In CCE v. Dhiren Chemical Industries (1),10 this Court, interpreting the phrase "appropriate", observed: "11. We need to make it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue."

The Central Board of Revenue had issued certain instructions under Rule 33 of the Income Tax Rules, 1922, specifically laying down the method and the manner in which depreciation had to be worked out on ships owned by a foreign shipping line carrying on business in British India. The said instructions merely elucidated and elaborated the manner in which the business income of such foreign shipping lines were to be ascertained and they did not run counter to Rule 33 or for that matter to Section 10(2)(vi) of the Income-tax Act, 1922. They were issued in view of the problems faced and experience gained by the Department and to meet situations not expressly provided for by the Act or the rules and are in the nature of guidance to the assessing officers. The Apex Court agreed with the High Court that the instructions were clear and unambiguous and the Income Tax Officer was bound to follow them.11 Besides, under Section 5(8) of the Income-tax Act, 1922 empowered the Central Board of Revenue to issue orders, instructions and directions which were binding upon all the officers and persons employed in the execution of the Act;12 but not on the appellate authority, the Income-tax Appellate Tribunal (ITAT) or the Court or even the assessee.13 The instructions of National Bank for Agricultural and Rural Development (NABARD), being in nature of guidelines for the selection of candidates and not being arbitrary and unfair, were held be binding.14 The Delhi Development Authority is a creature of statute, hence policy decisions or guidelines formulated by it have a finding effect on its transferees of land and their assignees, in the absence of rules to the contrary.15 Section 73 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 23 of 1973 shows that there exists power of control with the State Govt. over all the authorities constituted under the Act and it is empowered to issue directions which have to be carried out by them. However, if any order passed by the State Govt. is contrary to law or otherwise invalid, it can be challenged in the Court of law. In the instant case, the order passed by

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the Govt. was an innocuous one and was in the nature of advice that directions issued by the Govt. were to the complied with.16 The competent authority, appointed under Section 40 of the Maharashtra Rent Control Act, 1999 is not a Court but a statutory authority with no power to condone delay in filing of an affidavit with grounds of defence and in application for leave to contest under Section 43(4)(a) of the Act.17 Though the Memo of the Govt. of A.P. fixing price of rice was not notified still rice was procured from rice-mills and its price was paid by the Food Corporation of India under the said Memo, hence it was held that the State Govt. could no longer treat the said Memo as ineffective and it was binding on the Govt. as the Govt. could not take advantage of its failure.18 Instructions in the form of 'Dos and Don'ts' issued by the Army Headquarters from time to time to the forces while providing aid to the civil authorities have to be treated as binding instructions which must be followed by the members of the armed forces while exercising powers under the Armed Forces (Special Provision) Act, 1958. A serious note should be taken of the violation of the instructions and the persons found responsible for such violation should be suitably punished under the Army Act, 1950.19 The circulars issued to the Public Service Commission provided that in case the selected candidates did not join, the candidates in the waiting list should be considered against the vacancies so arising, depending upon the ranking obtained by these candidates in the competitive examination. Also the vacancies, which arise within six months from the receipt of the recommendation of the Commission, could be filled from amongst such candidates. The High Court, ignoring the circulars, took the view that such candidates had no claim against such vacancies. The Supreme Court held that the High Court had taken that view from a narrow and wrong angle. It observed that, when a policy has been declared by the State as to the manner of filling up the post and the policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time, and so long as the instructions are not contrary to rules, they ought to be followed.20 In Delhi Administration v. Gurdip Singh Uban,21 certain land owners filed objections against the operation of a notification issued under Section 4(1) of the Land Acquisition Act 1 of 1894 and the notification was quashed. The Supreme Court held that the said notification must be treated in force against those land owners who did not object to it in respect of their property as quashing the notification in the cases of individual writ petitions cannot be treated as quashing the whole of it. Administrative instructions, when not permitted by the parent Act to supplement the statutory rules and intend to do the same, they being non-statutory, would not invalidate an act fully covered by the Act and the Rules.22 In State of U.P. v. Chandra Mohan Nigam,23 the Supreme Court, while considering the validity of Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, which empowered the Central Government to compulsorily retire a member of the All India Service, took note of the instructions issued by the Government and observed: "Since Rule 16(3)itself does not contain any guidelines, directions or criteria, the instructions issued by the Government furnish an essential and salutary procedure for the purpose of securing uniformity in application of the rule. These instructions really fill up the yawning gaps in the provisions and are embedded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government servant."

A State Govt. circular contrary to the constitutional provisions, the Central Govt. instructions and the Supreme Court directions, was held to be not binding even on the State Govt..24 The preamble or the statement of background facts in a G.O. cannot be treated to be a part of the rules framed and notified under Article 309 of the Constitution.25 State Govt's attempt to get its own GO declared illegal as violated of the Article 177 of J&K Civil Service Regulations was deprecated by the Apex Court.26 If the Government has framed any rule or made a scheme for early release of life convicts, then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution which it had failed to do in the instant case.27 Govt. order/memorandum which was never communicated to the person concerned, has no legal force, effect or authority.28 Where under a certain memorandum, the right of appointment accrued to the ex-casual labourers and the later memorandum limited the said right of appointment to 50% of vacancies, it was held that the later one could not be enforced, particularly so when the matter had attained finality by an order of the High Court.29 Where a certain Govt. circular regarding benefit of reservation for SCS/STs/OBCs continued to be in force, a later circular issued to clarify an earlier circular, cannot affect is its continuing in force, though it was in conflict with the same.30 Both the State Govt. and the A.P. State Electricity Board are statutory functionaries under the Electricity (Supply) Act, 1948and they have to perform their obligations

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within the statutory limits. Section 78-A of the Act empowers the Govt. to issue directions to the Board on the question of policy, on the other hand the Board has to perform its statutory obligations under the Act. The policy direction by the Govt. is not unlimited and it cannot push the Board to perform its obligations beyond the statutory limits. If so, such a direction would not be binding on the Board. However, statutorily the directions are simply guidelines.31 An order exists unless it is quashed or it ceases to operate for any other reason.32 The notification of the A.P. Govt. dated 16.9.1963, in view of the provisions of Section 8 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and the object of the said notification was held to be applicable to the entire State of A.P. and not to any part of it. The said notification was issued in furtherance of the Act.33 Directives issued by the Administrative Ministry or by the Department of Pubic Enterprises are only advisory as per OMS dated 25-1-1991 and 8-4-1991 and the Board of Directors of the public sector undertakings concerned may in their discretion adopt them or not, for the reasons to be recorded in writing.34 Where there existed neither any post, nor were there any administrative instruction or statutory rules, the direction of the High Court to regularise the daily wagers appointed in connection to contingent establishment, was held to be illegal.35 Mere change of elected Govt. does not justify dishonouring the decisions of the previous elected Govt.. If at all the decisions contained in the orders were not acceptable to the newly elected Govt., it is open to it to withdraw or rescind the same formally. Otherwise it is not open to Govt. to contend that those decisions do not bind it.36 The requirement of law for the purpose of Article 19(6) of the Constitution can by no stretch of imagination be achieved by issuing a circular or policy decision in terms of Article 162 of the Constitution or otherwise.37 The circulars issued by the Government are not law within the meaning of Article 13 of the Constitution. Besides, they cannot operate, if they are contrary to the constitutional provisions.38 A Govt. company within the meaning of Section 617 of the Companies Act, 1956 is a separate juristice entity, hence in absence of any statutory provision or rule, the company was not bound by any direction issued by the Government and any interpretation or classification of any provision by the Govt. would not be binding on the company.39 Administration instructions cannot possibly be a substitute for a notification which stands as a requirement of the statue.40 The administrative order lying in the file and styled as an order is not valid without signatures of the officer concerned.41 A notification, if allowed, was likely to deny the fruits of the judgment rendered in earlier litigation. The Apex Court directed to suitably modify the notification.42 (a) Directions inconsistent with statute or rules are bad In the legal hierarchy, after the Constitution, an Act passed by a legislature occupies the top position; after that come the rules made under the Act end directions come the last. A direction can be emended, altered or even withdrawn from time to time by the concerned authority issuing fresh directions.43 A circular can cancel another circular.44 Directions are subsidiary to the statutes. Directions can never be permitted to interfere with, or prevail over, or impinge upon, or supersede statutory provisions. Provisions of the law can never be circumvented or overridden by directions. A direction inconsistent with, or running counter to, or abridging statutory provisions is invalid.45 Directions conflicting with the parent statute cannot remain operative and must be ignored even though they have been followed for long, have been found to be convenient and have worked fairly in practice. No one is obliged to obey such directions.46 An advertisement cannot override the rules and create a right in favour of a candidate, if otherwise not eligible according to the Rules.47 The role of the directions is to supplement, never to contradict or conflict with rules.48 A direction cannot abridge, or run counter to, statutory provisions. If there is any conflict between the rules and the directions, the rules prevail over the directions.49 Directions cannot emend, supplant or supersede the rules made in pursuance of statutory powers. A rule can be amended only by another rule, not by a direction.50 A direction inconsistent with a rule cannot stand.51 A direction cannot prevail over the rules if the former is inconsistent

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with the latter.52 If there is no inconsistency between the rules and directions then both may be read together.53 A valid rule having some lacuna or gap can be supplemented by directions. But when a rule is constitutionally invalid, it cannot be validated with the support of directions. Directions can only supplement, but not supplant the rules.54. The government cannot restrict the operation of the rules by issuing directions.55 Accordingly, the Supreme Court has ruled in Doraiswamy that the Comptroller and Auditor-General of India has the necessary competence to issue departmental instructions as head of the Indian Audit and Accounts Department to fill in the gaps and lacunae existing in the service rules made by the President under Art. 148(5)for persons serving in the Department. The administrative instructions cannot, of course, prevail over the rules issued by the President in case of any conflict between them. But an administrative instruction can always be amended by another such instruction.56 When rules are silent on any particular point, government can fill up the gaps and supplement the rules by issuing instructions not inconsistent with the rules already framed.57 When there are no rules on the matter of determining seniority in a service, the government can by an executive order make appropriate norms to determine the same.58 The probation rules (Police) prescribed an initial period of two years of probation, but did not provide any optimum period for the purpose. An instruction issued by the Government said that "save for exceptional reasons", the probation period should not be extended by more than one year. Applying the principle that it is open to the government to issue instructions "to cover the gap where there be any vacuum or lacuna," the Supreme Court read the rules and the instruction together as the instruction did not run counter to the rules.59 Thus, when a service rule provides for merit alone as the basis for promotion to a higher post, a direction providing for seniority-cum-merit for the purpose, is bad being inconsistent with the rule.60 When service rules lay down certain conditions and qualifications for promotion, the government is not competent to add to these qualifications through directions as these will be inconsistent with the rules. The government cannot amend the rules by directions.61 In S.L. Sachdev v. Union of India,62 the Court stated: "No one can issue a direction which, in substance and effect, amounts to amendment of the Rules made by the President under Art. 309. This is elementary". In the instant case, a direction sought to amend the recruitment rules made under Art. 309. The direction superimposed a new criterion on the rules. This was held by the Court to be bad as "lacking in jurisdiction". The Court rejected the argument that the said direction was aimed at "further and better" implementation of the recruitment rules.63 A statute empowered a licensing authority to grant cinema licences subject to the "control" of the government. The government issued directions practically ousting the licensing authority and concentrating in its own hands the entire power to grant licences. The court held the directions not justified. The expression "control of government" may justify the issue of general directions to the licensing authority but it cannot justify complete ouster of the licensing authority and usurping its functions for, otherwise, this would amount to allowing the government to change the statutory provision in a substantial manner by its executive powers.64 In Mannalal,65 the Assam Foodgrains (Licensing and Control) Order, 1961 laid down five considerations which a licensing authority was to keep in view in granting or refusing a licence under the Act. One of the considerations was that a co-operative society was to be preferred to anyone else in certain circumstances. The government, however, directed the licensing authorities to grant licences only to the specified co-operative society and to no other person. The purpose of the government was to create a monopoly in favour of the specified society. Apart from violating Art. 14,66 the direction violated the order as well. Under the order, the licensing authority could prefer a co-operative society in granting a licence if it was of the view that it would fulfil the objectives of the statutory provision in question, but to refuse to issue a licence to anyone else in order to create monopoly in favour of one co-operative society alone amounted to the violation of the order. The Supreme Court deprecated the tendency of the administration to issue directions not in consonance with law. "Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administrative law." In Amitabh Shrivastava v. State of M.P.,67 the rules prescribed certain qualifying marks for admission to government medical colleges. As the number of candidates so qualified was less than the seats available in the colleges, the government lowered the minimum qualifying marks through an executive order. When ultimately the matter came before the Supreme Court, it interpreted the order in favour of the petitioner, who was seeking admission under the direction lowering the percentage of qualifying marks for admission and enforced the same in his favour. The Court ruled that the petitioner ought to be admitted because his percentage of marks was higher than that prescribed by the executive

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order for the purpose of admission. This seems to be an odd case where a direction modifying the rule was enforced. It is difficult to support the ruling on any rational basis and this pronouncement cannot be regarded as in any way compromising the basic proposition that a direction contrary to a rule has no force. The case however supports the proposition that a direction favourable to a person is usually enforced by the courts.68 Directions may supplement, or fill the void, or gaps in, the rules. Usually such administrative directions are enforced by the courts in cases where the government is conferring benefits on individuals and does not really need the help of law to back its action. For admission to government medical colleges, the minimum qualifications are prescribed by the university. When the number of qualified candidates is much larger than the total seats available in these colleges, the government may issue directions laying down some further test for admission to its colleges. These instructions issued under Art. 162 of the Constitution are supplementary to, and not contrary to, the university made rules. The Court observed:69 "As the Government runs these colleges, it undoubtedly has a right and a duty to make selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be competent to prescribe a test itself to screen the best candidates."

By administrative directions, the telephone department adopted the practice of categorisation of applications for telephone connections into O.Y.T., special category and general category. The Telegraph Act or the rules made thereunder made no provision to this effect. The directions were therefore challenged as unauthorised. Rejecting the argument, the Court upheld the instructions saying that S. 4 of the Act conferred exclusive privilege of establishing, maintaining and working telegraphs by the Central Government. No doubt, the rules did not provide specifically for any categorization of applications, but when the rules were silent, directions could be issued for carrying out the functions under the Act subject to the rider that the directions should not conflict with or defeat any provisions in the parent Act or the rules. As the directions in question were not inconsistent with the Act or the rules, these were not beyond the power of Administration and were not invalid or inoperative.70 Ultimately, the courts are the judge of the question whether the directions are merely supplementary to, or infringe, the statute or the rules. When a direction is issued under statutory authority, a question may be raised that it is ultra vires. A direction issued by the Reserve Bank to cooperative banks was challenged on the ground that the Reserve Bank could not have issued such a direction. But the Bombay High Court ruled that the Reserve Bank had authority to issue the same under S. Section 35A of the Banking Regulation Act, 1949.71 (b) Directions seeking to overrule court's judgment If the executive or the legislature wants to render a judicial decision ineffective, it can only do so by removing or altering or neutralising the legal basis of the judgment which is sought to be made ineffective and that neither the legislature nor the executive has the power of simply declaring the earlier decisions of the Courts as invalid or not binding. In the instant case the Govt. of Maharashtra passed a resolution merely reiterating its various resolutions passed earlier. The Division Bench of the Bombay High Court had considered and interpreted those resolutions and circulars of the Government and rejected them in a case72 which was affirmed by the Apex Court. The Supreme Court held that the Full Bench of the Bombay High Court, hence, rightly came to conclusion that the later resolution of the Government, read as a whole, showed that it came to be issued to set as naught or to get over the said decision of the Bombay High Court.73 (c) Interpretative Directions Reference has already been made to interpretative rules and their binding effect.74 At times, the Administration also takes recourse to interpretative directions, i.e. directions seeking to lay down Administration's interpretation of a law. Naturally, such a direction cannot be binding on the courts which are free to interpret the law by themselves. The Supreme Court considered the question in Chief Settlement

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Commr., Punjab v. Om Prakash.75 The Court clearly laid stress on the salient principle that a direction in conflict with a statutory provision cannot stand and the statutory provision must prevail over the direction. The Court emphasized that in India the executive has no inherent law-making power; whatever law-making powers it has are derived through delegation by the legislature. In India, where Rule of Law prevails, an administrative action has to be judged by the standard of legality. Therefore, the meaning of a statutory provision can never be overridden by any direction. In effect, it is the function of the courts to interpret the law. In Union of India v. Tulsiram Patel,76,the Court explained the effect of the instructions issued by the Government in relation to Art. 311(2)in these words: "At the highest they contain the opinion of the Government of India on the scope and effect of the second proviso to Article 311(2)and cannot be binding upon the Court with respect to the interpretation it should place upon that proviso. To the extent that they may liberalize the exclusionary effect of the second proviso they can only be taken as directory. Executive instructions stand on a lower footing than a statutory rule for they do not have the force of a statutory rule. If an Act or a rule cannot alter or liberalize the exclusionary effect of the second proviso, executive instructions can do so even much less."

In Rishabh Kumar & Sons v. State of U.P.,77 the court's interpretation of a tax provision differed from the view which the government had taken thereof and which was expressed in the form of a guideline. While a guideline is not binding on the court as regards the interpretation of a statutory provision, the court may take it into consideration while interpreting the statute in question. As the Supreme Court has observed in Varghese:78" The rule of construction by reference to contemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous." Recently, in Bengal Iron Corporation v. Commercial Tax Oficer,79 the Supreme Court has explained the nature of interpretative directions as follows: "So far as clarifications/circulars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. It is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was liveable according to law. There can be no estoppel against the statute. The understanding of the Government, whether in favour or against the assessee, is nothing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi-judicial functioning of the authorities under the Act. While acting in quasi judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court--to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. Of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean."80

However, in Mukhtiar Chand (Dr.) v. State of Punjab,81 the Apex Court took into consideration the notifications issued by the Indian Medicine Central Council while interpreting the parent Act. (d) Administrative Directions inconsistent with judicial order Administrative instructions/circulars/orders (ipse dixit) cannot infiltrate on to an arena which stands covered by judicial orders.82 (1) Judicial direction contrary to administrative direction In Municipal Corporation v. Veer Singh Rajput,83 the State Govt. had issued directions to all Municipal Corporations and Municipalities for reducing the establishment expenditure and for that purpose it prohibited the filling of vacant posts, creation of new posts and regularisation of daily waged employees. The High Court directed the corporation to regularise the services of daily waged employees contrary to the above administrative directions. The Supreme Court held that the such High Court direction was in the teeth of above mentioned administrative directions and could not be sustained. (e) Judicial Direction to fill vacuum

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In Union of India v. Association for Democratic Reforms,84 the Supreme Court held that the Court cannot give any directions for amending the Act or the statutory Rules. It is for Parliament to amend the Act and the Rules. It is also established law that no direction can be given, which would be contrary to the Act and the Rules. However, it is equally settled that in case when the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted. (f) Discretion and Direction In modern times, it is normal to confer discretionary powers on the Administration through statutes.85 The statutes do not usually lay down standards for regulating the exercise of discretionary powers. Therefore, it is a common practice to issue directions for this purpose. But the issue of directions to regulate the exercise of such discretion raises its own problems. The courts have spelled out some norms regarding the extent to which directions can regulate the exercise of discretionary powers. One basic principle developed by the courts in this regard is that directions cannot interfere with the exercise of discretion by an officer on whom the discretion has been conferred by statute. The underlying reason for the rule is that by vesting power in a designated officer or authority, the legislature has expressed trust in the judgment of the concerned body. Therefore, the body concerned should be allowed to exercise its discretion without any dictation from any quarter. But directions may have to be taken into account as laying down relevant considerations in reaching a decision by the decision-making authority. Also, the statute may explicitly confer on some superior authority power to issue directions to officers exercising powers under the Act. The Government of India has promulgated the Imports (Control) Order, 1955, in exercise of the powers conferred on it by Ss. 3and 4(a) of the Imports and Exports (Control) Act, 1947. Clause 10-C of the Order empowers the Chief Controller of Imports and Exports to issue directions regarding the sale of such imported goods as could not be utilised by the licensee for the purpose for which they were imported. Apart from the Import Order, the Government of India also issued some directions under its administrative powers relating to this aspect of the matter. The Allahabad High Court held in N.P. & A. v. Union of India,86 that since the Controller while issuing directions under Rule 10-C of the Import Order was acting under a statutory provision and he was not bound by administrative instructions issued by the Government outside statutory powers, his order would prevail over governmental directions. the Capital Issues (Control) Act, 1947, vested the power of approving issues of capital by companies in the Central Government. The Government sub-delegated the power to the Controller of Capital Issues (CCI). To regulate his discretion, the Government issued some guidelines in the form of a published press-note. Approval given by the CCI to the issue of capital by a company was challenged in Narendra Kumar v. Union of India87 on the ground that the CCI deviated from these guidelines in according sanction to the capital issue in the instant case. The Court rejected the contention with the following observation: "We are unable, however, to accept the criticism that there have been deviations from the guidelines which are substantial... We do not find that there have been any requirements of such guidelines which could be considered to be mandatory which have not been complied with."

The Court did not say whether the guidelines were binding or not or whether the CCI's decision would have been invalid had he failed to observe the guidelines. Certain features of these guidelines, though not articulated by the Court, may however be noted here. The guidelines were designed to structure the discretion of the CCI in the matter of granting approval to capital issues. The directions were issued by the Central Government under its rule-making power in lieu of rules. Further, the directions were issued by the Central Government, a superior authority and delegator of power, to the CCI, a junior authority, a sub-delegatee of power. These features will suggest that the directions could be regarded as binding on the CCI on the ground that the Government sub-delegated power to the CCI subject to the guidelines laid down in the directions.88 Besides the above-mentioned guidelines, there was another level of directions involved in the case, viz., the

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guidelines issued by the CCI himself to denote as to how he would exercise his power in granting approval to capital issues by the companies. A contention raised in the instant case was that the CCI had deviated from these guidelines as well. The Court rejected this argument as well on the ground that the CCI had acted bona fide and in substantial compliance with the principles of these guidelines. The Court did not commit itself that the guidelines issued by the CCI would be binding on him or not, but gave a strong indication that it regarded these guidelines as not enforceable in character as these were not statutory in nature and that the competent authority "might depart from these guidelines where the proper exercise of his discretion so warrants." The Court also said that these guidelines did not affect the rights of any person other than the company applying for the sanction. In the circumstances, "there is only a limited scope for judicial review on the ground that the guidelines have not been followed or deviated from" However, a member of the public could claim that such of the guidelines as safeguarded the interests of the members of the public should be strictly enforced. The Court did not refer specifically to the principle discussed later that an authority having discretion ought not to fetter the same and keep himself free to depart from the self-made norms to exercise his discretion if the merits of the case so warrant.89 The Court however did accept this principle in Narendra Kumar. At times, a statutory provision may confer a broad discretion on administrative officers. But by issuing directions, certain guidelines and procedural safeguards may be laid down for regulating the exercise of discretionary power. In such a context, the directions may be treated as an integral part or the statutory scheme so as to protect the statutory provision or the rule in question from being declared unconstitutional. In such a case, directions will be held binding. This proposition is illustrated by State of U.P. v. Chandra Mohan.90 A rule in the All India Services Rules authorised the Government to compulsorily retire a member of the service in public interest on reaching the age of 50 years. The rule did not contain any guidelines regarding premature retirement and so the Government of India issued -certain directions laying down a procedure and certain criteria for the purpose. The Supreme Court held the directions binding as the retirement rule by itself was harsh and rigorous vis-a-vis a government servant and, therefore, it had to be applied in a fair and reasonable manner. The directions in question did not violate any provision of the Act or the rule in question. On the other hand, the directions filled the gap in the rule in question. To pass the test of constitutionality, the rule must be safeguarded by reasonable procedural guidelines so that there may be no scope for discrimination or arbitrariness. The directions furnished an "essential and salutary procedure for the purpose of securing uniformity in application of the rule." The rule in question being silent, directions "speak and do vitative service in a vacuous field." The Court treated the directions as part and parcel of, and interwoven with, the rule in question and so enforceable and binding on the Government; the directions could not be violated to the prejudice of a government servant. In the instant case, the order of compulsory retirement was held void as the procedure laid down in the directions was not meticulously followed.91 In the same genre falls Virendra Kumar v. Union of India.92 An army instruction laid down procedure for release of commissioned officers. In the instant case, the instruction was held to be a rule having statutory force. The termination of service of the appellant on medical grounds was held to be invalid as the procedural requirements laid down in the said instruction were not complied with. The Court emphasized,_ "In Service Jurisprudence, procedural safeguards are of prime significance."93 A rule of the Indian Police Service Rules provided for a minimum period of probation of two years, but did not prescribe any maximum period for the purpose. However, a direction issued by the Central Government prescribed a maximum period of probation of three years. In State of Gujarat v. Akhilesh,94 an order discharging a probationer after five years was challenged. Voiding the order, the Supreme Court ruled that the combined effect of the rule and the directions was that if an officer appointed initially on probation continued in service beyond three years, it would amount to his confirmation. In the instant case, the petitioner having been in service for five years stood confirmed and he could not then be discharged without having been given an opportunity of being heard. But when a rule is invalid under Art. 14.95 because of its conferring uncontrolled discretionary power on an authority, it cannot be held valid because some direction lays down some guidelines to regulate the exercise of discretionary power under the rule. The Supreme Court held a rule invalid as it gave uncontrolled power to the government to retire any employee after 30 years of qualifying service. The Court refused to accept the contention that the rule should be held valid as guidelines to exercise the power to retire a government servant were laid down in a direction. According to the Court, a direction cannot amend or modify a rule; a

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direction can supplement some lacuna or gap in a valid rule "but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule.1 (g) Directions to quasi-judicial bodies In order to protect and safeguard the impartiality, independence and objectivity of quasi-judicial bodies,2 the courts have evolved the principle that directions ought not to be issued to such bodies so as to restrict or control their discretion and best judgment. The government should not issue directions to such bodies so as to clog the exercise of their independent judgment in matters entrusted to them for adjudication under the statute. This is regarded as "essential to fundamentals of fair play in the administration of law." S. 43-A of the Motor Vehicles Act,3 which conferred power on State Governments to issue directions to transport authorities, if interpreted broadly, could take in not only administrative matters but even matters falling within the purview of quasi-judicial bodies functioning under the Act. But the Supreme Court declared in Rajgopala4 that, as it is of the essence of fair and objective administration of law that quasi-judicial bodies should be left unfettered by any extraneous guidance by the executive, S. 43-Ashould be so interpreted as to take out of its purview the issuing of directions relating to matters of adjudication by quasi-judicial bodies. The Court emphasized that the exercise of judicial powers should be regulated by law and rules and not by administrative directions which were neither required to be published nor were they required to be communicated to the parties whose claims were affected by them. Thus, it was held that directions issued under S. 43-Acould not bind the transport authority while discharging the quasi-judicial function of dealing with applications for permits and evaluating the respective claims of the parties for the issue of permits to them. The principle mentioned above has been reiterated in a number of cases. The exercise of power to sanction the transfer of a permit under S. 59(1) of the Motor Vehicles Act, 1939, has been held to be a quasi-judicial power. Consequently, the Government is not competent to impose any restrictions upon the exercise of this power through directions. Accordingly, in Ravi Roadways,5 a government order issuing directions to a regional transport authority in the matter of a transfer of a permit in respect of a stage carriage was declared invalid. under S. 63-A(2)(c) of the Motor Vehicles Act, 1939, the Inter-State Transport Commission has power to issue directions to the State or Regional Transport Authorities regarding grant and revocation of permits for operation of transport vehicles in respect of any route or area. under S. 63(4), the directions issued by the Commission are to be given effect by these Authorities. Nevertheless, the Supreme Court ruled in Manjunath,6 following Naidu,7 that the power of the Commission to issue directions "is referable only to directions of executive or administrative nature" and the Commission "has no power to entrench upon the quasi judicial functions of the Transport Authorities in the matter of grant of permits." S. 13 of the Wealth Tax Act, 1957, provides that all officers shall observe and follow the directions of the Board of Revenue. The Supreme Court has ruled that directions under this section may control the exercise of power of officers in administrative matters but not in quasi-judicial matters. The Board cannot, therefore, give any directions to the commissioner in discharge of his quasi-judicial function under the Act.8 The standing orders certified under the Industrial Employment (Standing Orders) Act, 1946, though binding between employers and the employees of the industry concerned, do not have the force of law as to be binding on the industrial tribunal. Accordingly, an industrial tribunal which is not merely to administer existing laws and enforce existing contracts, but can even vary contracts of service between an employer and his employees, can alter the conditions of service of the employees prescribed by the bye-laws of a co-operative society.9 A direction as such is not binding on a quasi-judicial body as stated above. But, if a direction lays down a relevant fact, and is not directly addressed to the quasi judicial body itself, and the tribunal takes it into consideration in deciding a matter, then its decision is not questionable. It may be of interest to note that S. 119 of the Income Tax Act, 1961, specifically provides that no instructions can be given by the Central Board of Direct Taxes to the appellate assistant commissioner in the exercise of his appellate functions. Thus, independence and objectivity of this quasi-judicial functionary is sought to be protected. The Income Tax Appellate Tribunal is also exempt from the instructions of the Board.

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(h) Directions cannot affect private rights or fundamental rights The Indian Constitution and the common law jurisprudence which is well entrenched and deep-rooted in India lay emphasis on the freedom of the individual, and emphasize that any restriction prejudicial to his interests can be placed only by law, and not by directions.10 Directions cannot impose any liability on any one; only rules can do so. The government cannot interfere with the rights of the people without a specific rule of law authorising the administrative act in question.11 As directions are administrative in nature, the state cannot adversely affect the fundamental rights of a person merely by issuing directions.12 For instance, Art. 21permits restrictions on personal liberty of an individual through 'procedure established by law'. As directions do not amount to law, no restrictions can validly be put on a person's personal liberty through directions.13 In Bennett Coleman Co. v. Union of India,14 the newsprint policy issued by the Government of India was held invalid under Art. 19(1)(a)as restricting freedom of speech. No restriction can be imposed on a fundamental right guaranted by Art. 19by a direction.15 But this salient principle seems to have been by-passed by the Supreme Court in Bishamber Daval Chandra Mohan v. State of U.P..16 This case seems to be somewhat anomalous as it seeks to strike a discordant note with the general proposition stated above, viz., that individual rights cannot be compromised by directions. Under the U.P. Foodgrains Dealers (Licensing and Restriction of Hoarding) Order, 1976, issued by the Uttar Pradesh Government under the Essential Commodities Act, 1955, no person could carry on the business in foodgrains without a licence. Another control order issued under the same Act in 1978 fixed the maximum quantity of foodgrains which the dealers in foodgrains could have in stock. The Order also made provisions for search and seizure. No control order placed any restraint on movement of foodgrains within or without the State. By an intradepartmental teleprinter message to the regional marketing officers, the Government restricted inter-district movement of foodgrains. Trucks laden with foodgrains belonging to the petitioners were seized by officials acting on the teleprinter message. The petitioners challenged the search and seizure as illegal by arguing that under Arts. 19(1)(g)and 301 of the Constitution,17 restrictions on the right to carry on any trade and business and on the freedom of trade and commerce respectively could only be placed by law and that the teleprinter message was not law. The Supreme Court accepted that the teleprinter message was in the nature of executive instruction by the government to its officers. The Court also accepted that the message could not be regarded as a notified order under S. Section 3 of the Essential Commodities Act. Nevertheless, the Supreme Court rejected the writ petitions on two grounds: (1) the impugned instruction was relatable to the two control orders mentioned above; (2) the instruction introduced a system of verification which could be done "administratively without needing a legal rule for the purpose. The Court observed: "Even assuming that the impugned teleprinter message is not relatable to the two control orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat... and place restrictions on inter-district movement of wheat by traders on private account within the State."

Thus, the Court sought to justify the restrictions in question imposed by the State on the constitutional rights of the petitioners through directions instead of law by saying that the directions imposed no restrictions, but only introduced a system of verification of movement of wheat. It is difficult to accept the position that search and seizure of property do not compromise property rights. If the purport of the pronouncement is to say that a constitutional or legal right of a person can be compromised through administrative directions then such a proposition is untenable according to the first principles of Administrative Law. Legal rights of a person ought not to be adversely affected merely by directions which do not have the status of law. The case shows the extent to which the government can go by merely exercising its administrative powers and issuing directions. The case also shows that the courts are at times willing to adopt an indulgent attitude towards administrative action. The case testifies to the increasing importance of directions in the Indian Administrative Process.18 But the impact of the above ruling has been very much diluted by the recent ruling in Distt. Collector, Chittoor v. Chittoor Distt. Groundnut Traders Assn.19 The State Government issued a circular to its officers not to permit transport of groundnut seeds and oil outside the State by millers and traders unless they agreed to supply certain quantities of these products to the State Government at the price fixed by it. The circular thus placed restrictions on the transport and movement of oil and oil seeds and it further imposed compulsory levy

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on the millers and traders to supply oil to the State Government at the price fixed by it. The Supreme Court declared the directions contained in the circular as illegal and void as the State Government had no power to impose any such restrictions. Those directions had no sanction of law. (i) Art. 14and Directions Art. 14strikes at arbitrariness in administrative action.20 Arbitrariness is regarded as denial of equality. Accordingly, directions either may be held binding because of Art. 14(equality clause) of the Constitution or may be held bad because of the violation of that Article. In A. Periakaruppan v. State of T.N.,21 the Court quashed an order of selection of candidates for admission to medical colleges for not following the criterion laid down by the government (through directions). The government had prescribed 75 marks to be allotted to a candidate for his performance at an interview. The selection committee was to award these marks under five different heads, but the committee did not apportion the marks separately under the various heads. The Court held that the awarding of marks in lump was illegal. The rationale of this decision is that by not adhering to the criterion laid down by the government, the committee acted arbitrarily resulting in discrimination amongst the candidates which was volitive of Art. 14. In Sadhu Singh v. State of Punjab,22 the Supreme Court insisted that a direction in the Punjab Jail Manual regarding commutation of sentences must be "uniformly and invariably" applied by the concerned authority to all cases so as to avoid the charge of discrimination under Art. 14. A person can even challenge an administrative instruction itself if it is discriminatory or based on an illogical or an irrational principle, that is if it has no nexus with the object sought to be achieved. In State of A.P. v. U.S.V. Balaram,23 the instructions relating to admission to state medical colleges provided for a common entrance test for all candidates passing the pre-university and the H.S.C. Examinations, and laid down 40% reservation of seats in favour of the candidates passing H.S.C. This reservation was held to be arbitrary and thus volitive of Art. 14. In Sachdev,24 a direction regarding promotion of upper division clerks to higher grades was quashed by the Supreme Court as being unconstitutional. The Court said: "It is difficult to appreciate the logic or the principle behind the direction." The direction resulted in injustice in specific cases. The classification made for the purpose of determining the promotional opportunities were held to be "unreasonable and arbitrary." Thus, a direction, like a rule, can be quashed as being discriminatory by invoking Art. 14 of the Constitution.25 In District Registrar v. M.B. Koyyakutty,26 executive instructions regulating service conditions were held to be unfair and making an irrational classification. Similarly, in Baleshwar Dass v. State of U.P.,27 the Court stated that the service rules (including directions) must be "reasonable, fair and not grossly unjust if they are to survive the test of Arts. 14and 16."28 In M.L. Jain v. Union of India,29 a direction issued by the Government of India to State Governments regarding pension of High Court Judges was held invalid as being discriminatory under Art. 14because it fixed lower pension for a judge having longer tenure as a High Court Judge than the one having a shorter tenure. A direction permitting release of foreign exchange by the Reserve Bank for studying law only at the Universities of Oxford and Cambridge but no other British University has been quashed as being discriminatory.30 (j) Other grounds for non-enforcement of directions Can a direction be declared invalid on the ground of being vague? The Supreme Court has left the question open.31 In principle, however, there seems to be no doubt on this point. If a rule can be held as invalid on the ground of being vague or ambiguous,32 so can a direction. Like rules, directions cannot be given retrospective effect.33 under S. 36 of the Urban Land (Celling and Regulation) Act, 1976, the Central Government can issue directions to a State Government for carrying into effect the provisions of the Act in the State, and such directions are binding. It has been held that a State Government itself cannot issue directions which are inconsistent with the directions issued by the Central Government.34 Guidelines cannot have the effect of narrowing down the scope of the government's power granted to it under a statutory provision.35 The

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Government cannot impose any punishment without there being any legal provision authorising the same. "Any power to impose penalty must be statutorily warranted and executive government cannot create penal provisions by issuing circulars when there is no authority to impose such penalty from any provision of law."36 S. 73(3) of FERA enables the Reserve Bank to give directions to authorised dealers, money changers etc. for the purpose of securing compliance with the Act, rules, directions etc. made under the Act. Circulars are routinely issued by the Bank under S. 73(3). under S. 6(4), the money changers are required to comply with the directions issued by the Reserve Bank. Without specifically deciding the question, the Supreme Court has treated these circulars as binding and enforceable.37 Non-observance of a direction may lead to adjudication proceedings under the Act. The Supreme Court has ruled that as these proceedings are of a quasi-criminal nature, "it is not each and every infringement of any and every direction and instructions of the Reserve Bank which can attract adjudication proceedings under FERA but only when there is infringement of any provision, direction or instruction of some matter or substance." "Unless the infringement is absolute, it would not be permissible to take resort to such proceedings."38 Since directions are issued in the exercise of administrative power, it may be possible to challenge directions on all those grounds on which a discretionary decision may be challenged.39 For example, in Ashwin Pimpalwar,40 the Bombay High Court has declared some directions as invalid on the ground of non-application of mind by the government in formulating them. (k) Other grounds for Enforcement of Directions In some situations, a direction may be held binding on the Administration on the principle of promissory estoppel.41 This principle has been discussed later in this book.42 But, to mention one case here: in Amratlal v. State,43 directions contained in the Grant-in-Aid Code were held enforceable between the Administration and the school managements on the basis of promissory estoppel. Directions may also be given legal force by making compliance with them a condition for granting or renewal of a licence, or by making award of a government contract conditional on the observance of such directions. In the area of government contracts, sometimes guidelines laid down by the government control the choice of persons competing with one another for the grant of a contract, or some benefit or largess. If the government departs from the guidelines without any rhyme or reason, it may result in arbitrary discrimination which may call for judicial interference. Or else, guidelines may prescribe certain standards or norms for the award of a contract or some benefit. Any departure from these norms or standards may affect people directly or indirectly and this may call for a judicial remedy.44 A direction may become enforceable on the ground of legitimate expectation. So far, the doctrine of legitimate expectation has been invoked in the area of natural justice.45 But the Supreme Court has recently suggested the possibility of directions being held enforceable on this basis, i.e., when a person has been given reason to believe that the state will abide by the directions issued by it.46 The doctrine of legitimate expectation can form the basis of enforcing those directions which confer favour or benefit on the people. This may be regarded as the basis for enforcement of directions issued under the Income Tax Act. In Narendra Kumar,47 the Supreme Court has stated two more propositions when directions may become enforceable . One, where guidelines are intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of persons and a deviation therefrom directly affects the rights so vested, the person whose rights are affected have a right to approach the court for relief. Two, where guidelines are laid down in public interest, and not in the interest of any single person, a member of the public may seek enforcement of the guidelines if the same are deviated from so as to prejudice the interests of the public. Per contra,the court may overlook or ignore such deviations if it becomes justifiable or necessary in public interest. "Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve." The courts may issue certiorari to quash the decision of a body established under a non-statutory scheme if

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its proceedings or decisions are tainted with such defects as would justify the issue of certiorari against a statutory body.48 Statutory recognition of a non-statutory code may make the latter enforceable. Under a statutory provision, the Maharashtra Government made a regulation requiring all secondary schools to follow the provisions of the secondary schools code made by the government. The government-prepared code was held to be non-statutory and "in the nature of executive directions." Nevertheless, as the code had been given statutory recognition, and the school were required to follow the same, it was held binding on all municipal schools. The Supreme Court therefore ruled in M.G. Pandke v. Municipal Council,49 that although a municipal council has power to make bye-laws for the schools run by it, but as the field was already occupied by the code under a statutory mandate, the municipal council could not make a bye-law inconsistent with the code so as to render the statutory mandate nugatory. The Court observed, "It is for the State Government to frame the code in whatever manner it likes but once the code is in operation its provisions have to be fulfilled" by municipal councils. So long as the code occupies the field, it must be applied uniformly to all municipal schools. Municipal Council From what has been said above, it becomes clear that the institution of directions has come to constitute an essential component of the modern administrative process, and, at times, directions are used as a substitute for delegated legislation. But, from the individual's point of view, the weaknesses of the system of directions cannot be minimised. Accordingly, some safeguards against the misuse of the system of directions are called for. One such safeguard may be a system of publication of directions in some convenient and easily accessible form in the same way as that of the rules. Since knowledge of directions is just as vital to the individual as that of delegated legislation, publication of directions assumes as much importance as that of the rules. At present, there exists no legal provision insisting on publication of directions. Therefore, it is possible to issue directions confidentially affecting individuals without their knowledge. The Government of Punjab issued certain directions making reservations in the posts to be filled by promotion of scheduled castes and backward classes persons. These directions were not published in the gazette. Nevertheless, the interests of the candidates other than those belonging to the scheduled castes and backward classes were adversely affected. A question was raised whether these directions could be acted upon in the absence of their publication in the gazette. The High Court answered in the affirmative.50 The Court ruled that it is not necessary that directions be published in the gazette as they constitute 'rules of guidance' and remain in force so long as the executive policy is not changed. The directions may be altered any time. Directions cannot be equated with statutory rules. A rule needs promulgation or publication of some reasonable sort for being brought into being as was laid down in Harla.51 But this principle is not applicable to directions. The Court however did state that "it is highly desirable that important policy decisions of the Government which affect the rights of the public servants should be given due publicity and one such method is to publish them in the official gazette", but "the publication of executive instructions in the official gazette is not the sine qua non of the validity of the action taken under them."52 On the other hand, a contrary view was reached by the Gujarat High Court in KS. Nair v. Oil and Natural Gas Commission,53 where it was held that executive instructions providing for reservation of posts under Art. 16(4) of the Constitution have to be published. Perhaps, this ruling in the Gujarat case is to be confined to directions issued under Art. 16(4). Circulars were issued under an order made under the Essential Commodities Act. The High Court ruled that there was no obligation under the Act to publish the circulars, but suggested that, as the circulars were of general application, it was desirable to publish them in the gazette.54 In R.K. Anand v. Union of India,55 a departmental instruction contained in a letter fixing the age for superannuation of Lt.-Generals at 57 was given effect to. The letter was issued with the concurrence of the Ministry of Defence; it was not merely a departmental communication. The relevant rule made under the Act fixed the age of superannuation of Lt. Generals between 56 and 58 years and, therefore, the direction in question was not counter to the said rule. The advantage of publication of directions to an individual cannot be over-emphasized. He should know the departmental position on various matters affecting him so that he can represent his case better and more

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effectively before the concerned authorities; he could organise his own affairs in the light of the directions applicable to him. Further, publicity of directions would also act as a restraint on the capriciousness of individual officials. Though even a published direction may be legally disregarded by the Administration, it would do so only for a good reason, otherwise it may subject itself to adverse public criticism. It remains a moot point as to why the Harla doctrine cannot be applied to directions as well. It will be a great help to the public if there is a separate publication of official pronouncements and directions on various subjects. Such departments as issue a large number of directions may devise separate publications of their own. In this connection, it is well worth pointing out that income tax circulars are now published in the Direct Taxes Bulletin. This Bulletin is a quarterly publication issued by the Directorate of Inspection, Government of India, New Delhi. It commenced publication in 1962. Before 1962, there was no regular mode of publication of income tax circulars. This publication has proved to be a boon to the taxpayers. (a) Laying Laying down of a subordinate legislation before both the Houses of the legislature is directory in nature.56 In Atlas Cycle Industries Ltd. v. State of Haryand,57 the Supreme Court noticed that there are three different laying clauses which assure different forms depending on the degree of control which the legislature may like to exercise, namely,-"(i) (ii) (iii)

Laying without further procedure, laying subject to negative resolution, laying subject to affirmative resolution."

Upon considering a large number of Indian and English decisions, it was held:58 "32. From the foregoing discussion, it inevitably follows that the legislature never intended that non-compliance with the requirement of laying as envisaged by sub-section (6) of Section 3 of the Act should render the order void. Consequently non-laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification."

27. Yet again in Quarry Owners' Assn. v. State of Bihar,59 a Division Bench of the Supreme Court observed: "48. In a democratic set-up, every State Government is responsible to its State Legislature. When any statute requires mere laying of any notification or rule before the legislature its executive viz. the State Government comes under the scrutiny of the legislature concerned. Every function and every exercise of power, by the State Government is under one or the other Ministry which in turn is accountable to the legislature concerned. Where any document, rule or notification requires placement before any House or when placed, the said House inherently gets the Jurisdiction over the same, each member of the House, subject to its procedure gets the right to discuss the same, they may put questions to the Ministry concerned. Irrespective of the fact that such rules or notifications may not be under the purview of its modification, such Members may seek explanation from such Ministry of their inaction, arbitrariness, transgressing limits of their statutory orbit on any such other matter. Short of modification power, it has a right even to condemn the Ministry. No doubt in the case where the House is entrusted with power to annul, modify or approve any rule, it plays a positive role and has full control over it, but even where the matter placed before any House, its positive control over the executive makes even mere laying to play a very vital and forceful role which keeps a check over the State Government concerned. Even if submission for the appellants is accepted that mere placement before a House is only for information, even then such information, inherently in it makes the legislature to play an important role as aforesaid for keeping a check on the activity of the State Government. Such placement cannot be construed to be non est. No act of Parliament should be construed to be of having no purpose. As we have said, mere discussion and questioning the Ministry concerned or authority in the House in respect of such laying would keep such authority on guard to act with circumspection which is a check on such authority, specially when such authority is even otherwise answerable to such legislature."

It was, inter alia, concluded:60 "61. (d) Requirement of mere placement of the rules or the notifications before the State Legislature is also one of the forms of check on the State Government to exercise its powers as a delegatee."

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Sub-section (3) of Section 72 of the A.P. Excise Act, 17 of 1968 merely provides for laying down the rules before both the Houses of the legislature with the reasons for giving a retrospective effect. The said provision does not speak of the necessity to obtain permission or prior approval therefore by the Houses of the legislature. Only in the event the legislature is not satisfied with the sufficiency or otherwise of the reasons assigned, it may direct that the same would operate prospectively. Sub-sections (3) and (4) of the said Section 72must be read in such a manner that both may be given effect to. Sub-section (3) deals with only a special situation, whereas sub-section (4) is general in nature. In the event, a negative resolution is adopted the rules will cease to have the force of law. Difference between sub-section (3) and (4) of Section 72lies in the fact that whereas in case the rule is given retrospectively, the members of both the Houses of the legislature shall be apprised of the reason therefor, whereas in case of a rule which is prospective in nature, simple laying down before both the Houses would serve the statutory object.61 It was further observed:62 "58. We also find there are few provisions in our Constitution which require mere laying before Parliament. Article 151requires laying of the report of the Comptroller and Auditor General of India before each House of Parliament and with reference to the State, to be laid before the legislature of the State. Article 338(5)requires placing of the report of the Commission before each House of Parliament and with reference to the State Government, under sub-article (7) it is required to be laid before the legislature of the State. Though they are mere provisions for mere laying before Parliament, but it is always open to any Member of the House to discuss and comment on the said report."

In National Hydroelectric Power Corpn.63 the Supreme Court was dealing with a different type of rule-making power viz. Section 16 of the Water (Prevention and Control of Pollution) Cess Act, 1977 under which laying of the rules before both the Houses was held to be subject to affirmative resolution. Interpreting the said provision, it was observed: "Mere perusal of sub-section (2) shows that there has to be a positive act of approval by Parliament to the issuance of the notification before it can be held that Schedule I has been amended. Merely laying the notification before each House of Parliament is not sufficient compliance within the provisions of Section 16(2). There is of course no time-limit within which the Houses of Parliament are required to pass a resolution once the Central Government has sought approval as contemplated by sub-section (2), but in the present case the pleadings disclose that no such approval was in fact sought for."

The said observations, thus, must be held to be confined to the fact of the matter obtaining therein. In that case it was found as of fact that the rule had never been placed before the legislature and, thus, there was even no substantial compliance with the law. The Bench, however, did not consider the effect of the directory nature of such a provision, in the light of the decision of this Court in Atlas Cycle Industries64 and Quarry Owners' Assn.65 The Court further did not notice the difference between the expressions "approval" and "permission". Section 16 of the Water Act, construction whereof was in question did not use the expression "prior approval". The word "approval" indicates an Act which has already been made and is required to be approved whereas in the case of "permission", the situation would be different. This aspect of the matter has been considered by this Court in High Court of Judicature for Rajasthan v. P.P. Singh,66 stating: "40. When an approval is required, an action holds good. Only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.67) In the instant case both the aforementioned requirements have been fulfilled."

Housing Society Ltd. Directions constitute an anomalous institution in Administrative Law. The picture that emerges from the above discussion is rather confused and hazy and not bright. While issuing of directions is an essential and normal administrative technique in the modern times, and the Administration to-day cannot perhaps do without resorting to this technique, the weakness and limitation of the system from the point of view of the Administration should not be lost sight of.68 For example, through directions, any constitutional, fundamental

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or legal right of an individual cannot be curtailed. A benefit conferred on an individual by a statutory provision cannot be diluted by a direction. A direction cannot impose a liability on any one; only a rule can do so. A direction is inferior in status to a rule. While a rule can override an earlier rule or a direction, a direction can only change a direction, but not a rule. Directions cannot be used to control the discretion of quasi-judicial bodies. There are limits to which directions can interfere with the exercise of discretion conferred on an authority through law.69 The validity of a law conferring wide discretion on administrative authorities vis-a-vis Art. 19can be considered only with reference to a provision having statutory force and not directions. And, finally, while a rule is ipso facto enforceable, the same cannot be said of a direction. It is ultimately for the court to decide whether a particular direction is enforceable or not. Thus, there is always an element of doubt about the enforceability of a direction. All the same, the position of an individual vis-a-vis directions is no less inconvenient and confusing. First, in many situations, it is difficult for him to ascertain the true character of notifications and government pronouncements published in the official gazette. As has been seen above, judicial pronouncements on the subject have not always been consistent. At times, an individual may be at a loss to know whether a public notice constitutes a rule or a direction. No clear principle appears to emerge from the case-law on how to distinguish directions from rules. Several times, provisions though called rules, have been characterised as directions.70 To some extent, this approach serves to protect individual's rights from being affected by the issue of directions. But, at times, directions may confer some benefits, privileges and concessions on individuals, or impose some obligations on the Administration. A direction beneficial to the individual is usually enforced by the courts. But, even so, there is no such absolute principle. There is no clear cut principle as to when an affected individual can enforce a direction against the Administration. It may be simpler from an individual's point of view if it were possible to have only the concept of rules and not that of directions. But, it does not appear to be feasible to eliminate directions completely in favour of rules because of the exigencies of modern administration. It, therefore, becomes essential to adopt some safeguards in this area, somewhat on the same lines as advocated in the area of rule-making. First, an indication should be given by the Administration itself whether a press note or public notice being issued by it is a direction or a rule. This will go a long way in avoiding confusion in this area. Second, at present, directions need not be published.71 Directions may be issued secretly and confidentially to administrative officers and, thus, individuals may be affected without their knowledge. As has already been emphasized, a system should be evolved to publish the directions. From every point of view, rules give a better safeguard to on individual's rights than do the directions. There is no parliamentary scrutiny of directions.72 Last, but not of the least importance, is the need to transform directions into rules after the norms laid down in the directions have been stabilised and have ceased to be of transitory significance. The department concerned should constantly endeavour to formalise directions, at least such of them as have stood the test of time, into rules which are more stable, enforceable against the Administration, and provide a better security to the individual and hence are preferable from the individual's point of view. The Lok Sabha Committee on Subordinate Legislation has also emphasized from time to time that certain directions ought to be substituted by rules.73 6. RULES MADE BY PRIVATE BODIES Rules, regulations or bye-laws made by a private association, or any other body incorporated or registered under a statute, are not regarded as 'low' or to have the force of low. Therefore, the bye-laws made by a co-operative society in pursuance of statutory provisions do not have the force of low. Such bye-laws may be binding between the persons affected by them, but they do not have the force of low. These bye-laws govern the internal management, business or administration of a society, lay down conditions of service of the employees of a society. They are similar in nature to the articles of association of a company which do not have the force of low.74 The bye-laws of a society laying down conditions of service of the employees would be binding between the society and the employees just like conditions of service laid down by contract between the parties.75 Therefore, in case of on industrial dispute between to co-operative society and its employees, the industrial tribunal can vary the society's bye-laws laying down the conditions of service for its employees. But there may be some situations when even bye-laws made by private bodies may be treated

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by the courts as having statutory force. For example, the Forward Contracts (Regulation) Act, 1952, provides for regulation of certain matters relating to forward contracts. It empowers a recognised association to make bye-laws for the regulation and control of forward contracts subject to the previous approval of the Central Government. The Act also provides that any forward contract in goods which is in contravention of any of the bye-laws "shall be void". The Supreme Court held in Megna Mills v. Ashoka Marketing76 that the bye-laws made by the East India Jute and Hessian Exchange, an association recognised under the provisions of the Forward Contracts (Regulation) Act, 1952, were mandatory and enforceable and any contract entered into in contravention of these bye-laws would be invalid. The Court depended for this view on the provision in the Act saying that any contract in contravention of the bye-laws would be void and illegal. This result was reached in the instant case because the Act in question itself laid down that any contract in contravention of the bye-laws would be void and illegal. It is not clear whether the bye-laws of the recognised association would have been treated as being similar to those of a co-operative society in the absence of such a statutory declaration. This specific point was not discussed by the Supreme Court in Megna nor did the Court even refer to its earlier pronouncement in Co-op. Credit.77 In Minhas,78 the bye-laws made by the Indian Statistical Institute regarding the appointment of the Director were held to be enforceable. The Institute has been registered as a company under the Indian Companies Act, but is regarded as an 'authority' under Art. 12 of the Constitution.79 Without deciding whether the bye-laws amounted to rules or directions, the Supreme Court ruled that they should be followed as they had been framed for the conduct of the affairs of the Institute so as to avoid arbitrariness and they should be complied with in the name of fair play. In the instant case, appointment of the director was quashed as it was made ignoring the bye laws.80

1 MEGARRY, Administrative Quasi-Legislation, 60 LQR 125 (1944); ALLEN, Law and Orders, 192 (1965); GANZ, Quasi-Legislation, (1987). 2 See, infra, this Chapter under 'Need for Directions.' 3 See, Part I, Section I of the Gazette of India. 4 Infra, Chapters on Administrative Powers and Discretionary Powers. 5 Supra, Chapters IV and V. 6 See, this Chapter, infra, under 'Identification of Directions.' 7 See under heading: 'Identification of Directions', infra, this chapter. 8 Infra, this Chapter. 9 Infra, this Chapter under 'Enforceability of Directions'. 10 (1999) 2 SCC 687 [LNIND 1999 SC 172] [LNIND 1999 SC 172] [LNIND 1999 SC 172], 702 (para 13) : AIR 1999 SC 1059 [LNIND 1999 SC 172] [LNIND 1999 SC 172] [LNIND 1999 SC 172]. 11 (1996) 7 SCC 450 [LNIND 1996 SC 121] [LNIND 1996 SC 121] [LNIND 1996 SC 121], 453 (para 4). 12 Collector, Ongole v. Narra Venkateswarlu, (1996) 7 SCC 150 [LNIND 1995 SC 1203] [LNIND 1995 SC 1203] [LNIND 1995 SC 1203], 152 (para 4). 13 Infra, under Interpretative Directions. 14 Infra, under. Administrative Powers, Chapter XV. 15 Ellerman Lines v. Commissioner of Income Tax, West Bengal, AIR 1972 SC 524 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548]: (1972) 4 SCC 474. 16 FRIENDLY, The Federal Administrative Agencies: The Need for Better Definition of Standards 146-147 (1960). 17 For an example of this in the income tax field, see, Navnit Lal C. Javeri v. K.K. Sen, AIR 1965 SC 1375 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287]: (1965) 1 SCR 909. 18 the Finance Act, 1955, for the first time, made a provision for development rebate allowing additional depreciation on new

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plant. The various problems in implementing this provision could not be visualised in the beginning and attempts were made to solve them through issue of circulars from time to time: Direct Taxes Administration Enquiry Committee Report, 38-42 (1958-59). 19 Thus, in granting import licences, several factors have to be constantly kept in view, e.g., foreign exchange situation, priority of the concerned industry in the context of national - economy, needs of different units in the industry and so on. These factors vary constantly, and, therefore, it may be difficult to lay down stable norms for issuing such licences. Also, numerous licensing authorities deal with applications for such licences, and some uniformity in decisions by them may be achieved by taking recourse to directions. See, infra, under Nature of Import Policy, infra, this chapter. 20 Accountant-General v. S. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93; JAIN, Cases, 201. 21 S.L. Sachdev v. Union of India, AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432]: (1980) 4 SCC 562. Also see, Maharashtra v. Chandrakant, AIR 1981 SC 1990 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]: (1981) 4 SCC 130 : 1981 (2) LLJ 433 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]; Khanzode v. Reserve Bank, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: 1982 (1) LLJ 465: (1982) 2 SCC 7 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]. 22 Supra, Chapter IV. 23 Supra, this Chapter. 24 For example, Art. 309 of the Constitution, see below. 25 JAIN, Indian Constitutional Law, 113, 346. Also see, Union of India v. Majji Jangammaya, AIR 1977 SC 757 [LNIND 1976 SC 424] [LNIND 1976 SC 424] [LNIND 1976 SC 424]; (1977) 1 SCC 606 infra, Chapter XV. 26 Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1, 17 : 1992 Supp (1) SCC 594. 27 B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67]: 1967 (1) LLJ 698; JAIN, Cases, Chapter VII, 387. 28 Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]; Naraindas Indurkhya v. State of M.P., AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]: (1974) 4 SCC 788. Also see, infra, Chapter XV. 29 State of M.P. v. Nivedita Jain, AIR 1981 SC 2045 [LNIND 1981 SC 395] [LNIND 1981 SC 395] [LNIND 1981 SC 395]: (1981) 4 SCC 296; JAIN, Cases,. 361. Also, Aarti Gupta v. State of Punjab, AIR 1988 SC 481 [LNIND 1987 SC 832] [LNIND 1987 SC 832] [LNIND 1987 SC 832]: (1988) 1 SCC 258; JAIN, Cases, Chapter VII, 366. 30 M.R. Balaji v. State of Mysore, AIR 1963 SC 649 [LNIND 1962 SC 320] [LNIND 1962 SC 320] [LNIND 1962 SC 320], 668 : 1963 Supp (1) SCR 439 [LNIND 1962 SC 320] [LNIND 1962 SC 320] [LNIND 1962 SC 320]. 31 AIR 1967 SC 1753 [LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139]: 1967 (3) SCR 636. Also see, JAIN, Cases, Chapter VII, 405. 32 AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]: 1984 Crlj 404 : (1984) 2 SCC 310 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]; JAIN, Cases, Chapter VII, 358. Also, State of Punjab v. Joginder Singh, AIR 1990 SC 1396 [LNIND 1990 SC 181] [LNIND 1990 SC 181] [LNIND 1990 SC 181]: 1990 Crlj 1464 : (1990) 2 SCC 661 [LNIND 1990 SC 181] [LNIND 1990 SC 181] [LNIND 1990 SC 181]. 33 State of Maharashtra v. Lok Shiksan Sanstha, AIR 1973 SC 588 [LNIND 1971 SC 320] [LNIND 1971 SC 320] [LNIND 1971 SC 320]: (1971) 2 SCC 410. 34 K. Properties Ltd. v. Calcutta Municipality, AIR 1973 Cal 488 [LNIND 1973 CAL 117] [LNIND 1973 CAL 117] [LNIND 1973 CAL 117]. 35 S.K. Agarwalla v. State, AIR 1973 Ori. 217. 36 General Electrical & Engineering Co. v. Chief Engineer, AIR 1974 Ker 23 [LNIND 1972 KER 103] [LNIND 1972 KER 103] [LNIND 1972 KER 103]. 37 L.P.F. Co-op. Society v. State of West Bengal, AIR 1974 Cal 217 [LNIND 1973 CAL 197] [LNIND 1973 CAL 197] [LNIND 1973 CAL 197]. 38 Mohibali Roshanali Naser v. Union of India, AIR 1989 Bom 237 [LNIND 1988 BOM 432] [LNIND 1988 BOM 432] [LNIND 1988 BOM 432]. Also, Life Insurance Corp. v. Escorts Ltd., AIR 1986 SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362]: (1986) 59 Comp Cas 548. 39 S.P. Minocha v. State, AIR 1973 MP 84 [LNIND 1972 MP 47] [LNIND 1972 MP 47] [LNIND 1972 MP 47].

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40 A. Prabhakara Reddy v. State, AIR 1980 Kant 207. 41 State of Assam v. Ajit Kumar Sarma, AIR 1965 SC 1196 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284]: 1966 (1) LLJ 451. Also see, JAIN, Cases, Chapter VII, 406. 42 AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500]: (1980) 3 SCC 8. 43 Accountant-General v. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93. Also see, JAIN, Indian Const. Law, 48. 44 AIR 1981 SC 947 : (1981) 1 SCC 485. 45 AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178]: (1972) 4 SCC 188. 46 On pre-publication, see, supra, Chapter VI. 47 Bant Singh v. Man Singh, AIR 1976 P&H 102. 48 State of U.P. v. Babu Ram, AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292]: 1970 (1) LLJ 670 : 1961 (1) Crlj 773. 49 Kharak Singh v. State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436]: 1963 (2) Crlj 329. 50 Niranjan Singh v. State of U.P., AIR 1957 SC 142 [LNIND 1956 SC 73] [LNIND 1956 SC 73] [LNIND 1956 SC 73]. 51 Kharaksingh v. State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436]: 1963(2) Crlj 329 : (1964) 1 SCR 332 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436]. 52 Govind v. State of M.P., AIR 1975 SC 1378 [LNIND 1975 SC 124] [LNIND 1975 SC 124] [LNIND 1975 SC 124]: 1975 Crlj 1111 : (1975) 2 SCC 148 [LNIND 1975 SC 124] [LNIND 1975 SC 124] [LNIND 1975 SC 124]. 53 Sadhu Singh v. State of Punjab, AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]: 1984 Crlj 404 : (1984) 2 SCC 310 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]. 54 Life Insurance Corp. v. Escorts Ltd., AIR 1986 SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], 1379 : (1986) 59 Compcas 548. 55 See, supra, under Directions Generally, in this chapter. 56 Under the Income Tax Act, all perquisites received by an employee are subject to tax but a circular dated 1-8-55 grants certain exemptions. The circular, however, emphasizes that "strictly speaking the value of all benefits can be taxed. "See DAVE, Vires of Executive Action under Fiscal Laws--Income Tax on Salaries, 4 JILI 261 (1962) . 57 For instance, a circular dated 6-8-64 defined the term "salary" for purposes of S. 10(10) of the Income Tax Act, 1961.Thisisanexample of interpretativedirection;seeinfra. 58 See, supra, under Need for Directions, in this chapter. 59 There were two opinions amongst tax payers as regards the date for closing accounts for the samvat year 2019. The board recognised both the dates through a circular dated 4-10 1963. 60 For instance, a circular dated 3-8-1963 provided, on assessees' request, for refund of excess tax paid by money order if the amount did not exceed Rs.250. 61 State of M.P. v. Km. Nivedita Jain AIR 1981 SC 2045 [LNIND 1981 SC 395] [LNIND 1981 SC 395] [LNIND 1981 SC 395]: (1981) 4 SCC 296; JAIN, Cases, Chapter VII, Sec.A; JAIN, Cases.361. 62 Also see, Aarti Gupta v. State of Punjab, AIR 1988 SC 481 [LNIND 1987 SC 832] [LNIND 1987 SC 832] [LNIND 1987 SC 832]: (1988) 1SCC 258; JAIN, Cases, 366. 63 Govt. of A.P. v. R. Murali Babu Rao, AIR 1988 SC 1048 [LNIND 1988 SC 160] [LNIND 1988 SC 160] [LNIND 1988 SC 160]: (1988) 2 SCC 386; JAIN, Cases, .367. 64 Supra, Chapter VI, Underheading: 'Publication'. AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: (1976) 2 SCC 953. 65 State of U.P. v. Kishori Lal, AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500]: (1980) 3 SCC 8. Also see, v. Balasubramaiam v. T.N. Housing Board, AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]: (1987) 4 SCC 738 : 1988 (2) LLJ 435 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]; JAIN, Cases, Chapter VII, 435.

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66 Indian Airlines Corporation v. Sukhdev Rai AIR 1971 SC 1828 [LNIND 1971 SC 658] [LNIND 1971 SC 658] [LNIND 1971 SC 658]: (1971) 2 SCC 192 : 1971 (1) LLJ 496.For comments on the case see, M.P. JAIN. The Legal Status of Public Corporations and their Employees, (1976) 18 JILI 1-34, and VII A.S.I.L. 199 (1971) . For extracts from the article, see, JAIN, Cases, Chapter VII, 369. 67 Sukhdev Singh v. Bhagatram AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]: (1975) 1 SCC 421 : 1975(1) LLJ 399 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]. Also see. JAIN, Cases, Chapter VII, 372. 68 APHL Conference v. W.A. Sangama AIR 1977 SC 2155 [LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264]: (1977) 4 SCC 161; JAIN, Cases, 360. 69 A.C.Jose v. Sivan Pillai AIR 1984 SC 921 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66]: (1984) 2 SCC 656; JAIN, Cases, 391. 70 1999 (6) Scale 616 [LNIND 1999 SC 955] [LNIND 1999 SC 955] [LNIND 1999 SC 955] : JT 1999 (8) SC 379 [LNIND 1999 SC 955] [LNIND 1999 SC 955] [LNIND 1999 SC 955]. 71 v. T.Khanzode v. Reserve Bank of India, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: (1982) 2 SCC 7 : 1982 (1) LLJ 465 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]; v. Balasubramaniam v. T.N. Housing Board, AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]: (1987) 4 SCC 738 : 1988 (2) LLJ 435 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]. 72 Union of India v. Anglo Afghan Agencies AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]:1968 (2) SCR 366. Also see, infra, Chapter XXII, under Promissory Estoppel. 73 Dy. Asst. Iron and Steel Controller v. Manickch and, AIR 1972 SC 935 [LNIND 1972 SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC 624]: (1972) 3 SCC 324; A.I. Works v. Chief Controller of Imports, AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC 169]: (1974) 2 SCC 348. 74 Shapoosafimangilal v. Ministry of Commerce, AIR 1976 Mad 82 [LNIND 1975 MAD 61] [LNIND 1975 MAD 61] [LNIND 1975 MAD 61]. 75 A.I. Works, supra; also, J. Fernandez & Co. v. Dy. Chief Controller of Imports and Exports, AIR 1975 SC 1208 [LNIND 1975 SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104]: (1975) 1 SCC 716. 76 Oswal Woollen Mills Ltd v. U.O.I., AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167]: (1983) 4 SCC 345. Also JAIN, Cases, Chapter VII, 457. Also see, Collector of Customs v. Mansingka Bros., (1988) 38 ELT 105; JAIN, Cases, Chapter VII, 461. 77 East India Commercial Co. v. Collector of Customs AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND 1962 SC 228] [LNIND 1962 SC 228]:1963 (3) SCR 338. 78 The notice in question said in its body "The following decisions made by the Government of India governing the issue of import licences for goods falling under Parts II to V of the Import Trade Control Schedule for the licen sing period July-December are here by published for general information". 79 For further comments on this case and other aspects of import-export control, see S.N. JAIN, Administrative Discretion in the Issue of Import Licences, 10 JILI 121 (1968) . Also see, Kaptan's Enterprise v. Union of India, AIR 1986 Del 212; Raymond Mills v. Jt. Chief Controller, Imports, LXXVI Bom LR 26; American Dry Fruit Stores v. Union of India, AIR 1990 Bom 378. In S.S.International v. Union of India, AIR 1988 Del 196 [LNIND 1987 DEL 287] [LNIND 1987 DEL 287] [LNIND 1987 DEL 287], a press notice amending the Import Policy was held valid. 80 Union of India v. Anglo Afghan Agencies, AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]: 1968 (2) SCR 366. 81 See, infra, Chapter XXII, under Promissory Estoppel. 82 AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC 246]: 1964 (5) SCR 294. 83 See, JAIN, Indian Const. Law, 347-52, 354. 84 AIR 1964 SC at 659. 85 AIR 1985 SC 883 [LNIND 1985 SC 45] [LNIND 1985 SC 45] [LNIND 1985 SC 45]: (1985) 2 SCC 16. Also see, JAIN, Cases, Chapter VII, 386. 86 AIR 1986 SC 2166 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352]: (1986) 4 SCC 667. Also see, JAIN, Cases, Chapter VII, 380. 87 Surindersingh v. Centralgovernment, AIR 1986 SC 2167, 2169 : (1986) 4 SCC 667 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352]. Also see, Prem Prakash v. Union of India, AIR 1984 SC 1831 [LNIND 1984 SC 220] [LNIND 1984

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SC 220] [LNIND 1984 SC 220]: 1985 (2) LLJ 341 : 1984 Supp SCC 687. 88 The Court referred to the following earlier cases to support the view : T.Cajee v. U.Jormanik Siem, AIR 1961 SC 276 [LNIND 1960 SC 211] [LNIND 1960 SC 211] [LNIND 1960 SC 211]: 1961(1) LLJ 652; Mysore State Road Transport Corporation v. Gopinath, AIR 1968 SC 464 [LNIND 1967 SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293]: 1968 (2) LLJ 144. 89 Also see, V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: (1982) 2 SCC 7 : 1982 (1) LLJ 465 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]. Also see, supra, Chapter v. 90 JAIN, Indian Constitutional Law, 766. Also see, supra, Chapter v. 91 Hari Prasad v. State, AIR 1972 Pat 4; Shamkant Narayan Deshp and e v. M.I.D.C., AIR 1993 SC 1173 : 1993 (2) LLJ 686 : 1993 Supp (2) SCC 194. 92 Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222]: 1968 (2) LLJ 830 : 1968 (1) SCR 111 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222]. Also see, Lalit Mohan Deb v. Union of India, AIR 1972 SC 995 [LNIND 1972 SC 99] [LNIND 1972 SC 99] [LNIND 1972 SC 99]: (1973) 3 SCC 862. 93 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]: 1955 (2) SCR 225. Also, Union of India v. H.R.Patankar, AIR 1984 SC 1587 [LNIND 1984 SC 211] [LNIND 1984 SC 211] [LNIND 1984 SC 211]: 1984 Supp SCC 359. 94 National Ex-servicemen Co-ordination Committee v. Controller General of Defence Accounts, (1996) 10 SCC496, 498 (para6). See also Anilkumarsinha(Dr.) v. State of Bihar, (1998) 2 SCC 439 [LNIND 1998 SC 136] [LNIND 1998 SC 136] [LNIND 1998 SC 136], 441 (para3) : AIR 1998 SC 1397 [LNIND 1998 SC 136] [LNIND 1998 SC 136] [LNIND 1998 SC 136]; S.K. Mathur v. Union of India, (1998) 4 SCC 134 [LNIND 1998 SC 37] [LNIND 1998 SC 37] [LNIND 1998 SC 37], 141 (para 16); State of Orissa v. Mamtarani Sahoo, (1998) 8 SCC 753, 758 (para 11) : AIR 1999 SC 3370; Central Organisation of T.N. Electricity Employees v. T.N. Electricity Board, (2005) 8 SCC 729 [LNIND 2005 SC 831] [LNIND 2005 SC 831] [LNIND 2005 SC 831]; L. Ch and rakishore Singh v. State of Manipur, (1999) 8 SCC 287 [LNIND 1999 SC 887] [LNIND 1999 SC 887] [LNIND 1999 SC 887] : AIR 1999 SC 3616 [LNIND 1999 SC 887] [LNIND 1999 SC 887] [LNIND 1999 SC 887]; Abraham Jacob v. U.O.I., (1998) 4 SCC 65 [LNIND 1998 SC 186] [LNIND 1998 SC 186] [LNIND 1998 SC 186] : AIR 1998 SC 1011 [LNIND 1998 SC 186] [LNIND 1998 SC 186] [LNIND 1998 SC 186]; R.S. Ajara v. State of Gujarat, (1997) 3 SCC 641 [LNIND 1997 SC 377] [LNIND 1997 SC 377] [LNIND 1997 SC 377] : JT 1997 (3) SC 573 [LNIND 1997 SC 377] [LNIND 1997 SC 377] [LNIND 1997 SC 377]. 1 M.M. Delichan v. State of Kerala, AIR 2001 SC 216 [LNIND 2000 SC 1527] [LNIND 2000 SC 1527] [LNIND 2000 SC 1527]: (2001) 1 SCC 151; R.K. Goyal (Dr.) v. State of U.P., (1996) 11 SCC 658 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062], 662-3 (paras 8 and 9) : AIR 1997 SC 1567 [LNIND 1996 SC 2062] [LNIND 1996 SC 2062] [LNIND 1996 SC 2062]; R.C. Sahi v. U.O.I., (1999) 1 SCC 482, 487 (para 17); relying on Ravi Paul v. U.O.I., (1995) 3 SCC 300 [LNIND 1995 SC 123] [LNIND 1995 SC 123] [LNIND 1995 SC 123]and affirming U.B.S. Teotia v. U.O.I. (Del-HC), CW No.44 of 1985; Sand hya Jain (Dr.) v. Subhash Garg (Dr.), (1999) 8 SCC 449 [LNIND 1999 SC 947] [LNIND 1999 SC 947] [LNIND 1999 SC 947], 454, (para 8) : AIR 2000 SC 29 [LNIND 1999 SC 947] [LNIND 1999 SC 947] [LNIND 1999 SC 947]; Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, (1999) 8 SCC 99 [LNIND 1999 SC 691] [LNIND 1999 SC 691] [LNIND 1999 SC 691], 104 (para 8) : AIR 1999 SC 3084 [LNIND 1999 SC 691] [LNIND 1999 SC 691] [LNIND 1999 SC 691]; Meghalaya State Electricity Board v. Jagadindra Arjun, AIR 2001 SC 2440 [LNIND 2001 SC 1577] [LNIND 2001 SC 1577]: (2001) 6 SCC 446; Orissa State (Prevention and Control of Pollution) Board v. Orientalpapermills, (2003) 10 SCC 421 [LNIND 2003 SC 308] [LNIND 2003 SC 308] [LNIND 2003 SC 308], 429 (para 13) : AIR 2003 SC 1966 [LNIND 2003 SC 308] [LNIND 2003 SC 308] [LNIND 2003 SC 308]; Seema v. Ashwani Kumar, (2005) 4 SCC 443; Gudur Kishanrao v. Sutirlha Bhattacharya, AIR 1998 SC 1242 [LNIND 1998 SC 239] [LNIND 1998 SC 239] [LNIND 1998 SC 239]: (1998) 4 SCC 189 (para 8); State of Bihar v. Suprabhat Steel Ltd., (1999) 1 SCC 31 [LNIND 1998 SC 1028] [LNIND 1998 SC 1028] [LNIND 1998 SC 1028] (para 7) : AIR 1999 SC 303 [LNIND 1998 SC 1028] [LNIND 1998 SC 1028] [LNIND 1998 SC 1028]. 2 (1996) 10 SCC 166 [LNIND 1996 SC 1074] [LNIND 1996 SC 1074] [LNIND 1996 SC 1074], 168 (para5). See also U.O.I. v. Madras Telephone SC&ST Social Welfare Association, (2000) 9 SCC 71 [LNIND 2000 SC 733] [LNIND 2000 SC 733] [LNIND 2000 SC 733], 80 (para 19) : AIR 2000 SC 1717 [LNIND 2000 SC 733] [LNIND 2000 SC 733] [LNIND 2000 SC 733]; Laxminarayan R. Bhattad v. State of Maharashtra, (2003) 5 SCC 413 [LNIND 2003 SC 401] [LNIND 2003 SC 401] [LNIND 2003 SC 401], 431 (para51) : AIR 2003 SC 3502 [LNIND 2003 SC 401] [LNIND 2003 SC 401] [LNIND 2003 SC 401]. 3 Union of India v. Madras Telephones SC & ST Social Welfare Association, AIR 2000 SC 1717 [LNIND 2000 SC 733] [LNIND 2000 SC 733] [LNIND 2000 SC 733]: (2000) 9 SCC 71. 4 Union of India v. Diljeet Singh, (1999) 2 SCC 672 [LNIND 1999 SC 1355] [LNIND 1999 SC 1355] [LNIND 1999 SC 1355], 677 (para 11) : AIR 1999 SC 1052 [LNIND 1999 SC 1355] [LNIND 1999 SC 1355] [LNIND 1999 SC 1355], approving Rosana Begum v. State of T.N., H.C. Petition No. 775 of 1997 and overruling Li Galina v. U.O.I., (1998) 1 JCC 6 (Del). See also Rajinder Singh v. State of Punjab, AIR 2001 SC 1769 [LNIND 2001 SC 941] [LNIND 2001 SC 941] [LNIND 2001 SC 941]: (2001) 5 SCC 482. 5 Union of India v. Rakesh Kumar, (2001) 4 SCC 309 [LNIND 2001 SC 860] [LNIND 2001 SC 860] [LNIND 2001 SC 860], 319

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(para 19) : AIR 2001 SC 1877 [LNIND 2001 SC 860] [LNIND 2001 SC 860] [LNIND 2001 SC 860]. See also L.Chandrakishore Singh v. State of Manipur, (1999) 8 SCC 287 [LNIND 1999 SC 887] [LNIND 1999 SC 887] [LNIND 1999 SC 887] : AIR 1999 SC 3616 [LNIND 1999 SC 887] [LNIND 1999 SC 887] [LNIND 1999 SC 887]. 6 Laxmandundappa Dhananekar v. Management of Vishwa Bharata Seva Samiti, (2001) 8 SCC 378 [LNIND 2001 SC 2167] [LNIND 2001 SC 2167] [LNIND 2001 SC 2167], 384 (para 9), : AIR 2001 SC 2836 [LNIND 2001 SC 2167] [LNIND 2001 SC 2167] [LNIND 2001 SC 2167]. See also S.K. Kacker v. All India Institute of Medical Sciences, (1996) 10 SCC 734 [LNIND 1996 SC 1394] [LNIND 1996 SC 1394] [LNIND 1996 SC 1394]. 7 M.C.Mehta v. Union of India, (1997) 11 SCC 227. 8 Swapan Kumar Pal v. Samitabhar Chakraborty, (2001) 5 SCC 581, 592-93 (para 12) : AIR 2001 SC 2353. Govt. action plan superseding statutory provisions, can't be sustained, Milk Producers Associations v. State of Orissa, (2006) 3 SCC 229 [LNIND 2006 SC 71] [LNIND 2006 SC 71] [LNIND 2006 SC 71], 241 (para 23). 9 Union of India v. Aflon Engineering Corporation, (2001) 10 SCC 677, 680 (para 11). See also M.P. Gangadharan v. State of Kerala, (2006) 6 SCC 162 [LNIND 2006 SC 398] [LNIND 2006 SC 398] [LNIND 2006 SC 398], 169 (para 14). 10 Parle Biscuits (P.) Ltd. v. State of Bihar, (2005) 9 SCC 669 [LNIND 2004 SC 1245] [LNIND 2004 SC 1245] [LNIND 2004 SC 1245], 680 (para 20), relying on Crawford v. Spooner, (1846) 6 Moo PC 1:4MIA179 and Hansraj Gordhandas v. H.H. Dave, (1969) 2 SCR 253 [LNIND 1968 SC 301] [LNIND 1968 SC 301] [LNIND 1968 SC 301] : AIR 1970 SC 755 [LNIND 1968 SC 301] [LNIND 1968 SC 301] [LNIND 1968 SC 301]. 11 State of Haryana v. Shamsher Jang, AIR 1972 SC 1546 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245]: 1972(2) LLJ 186; District Registrar v. M.B. Koyakutty, AIR 1979 SC 1060 [LNIND 1979 SC 136] [LNIND 1979 SC 136]: 1979(1) LLJ 356 : (1979) 2 SCC 150 [LNIND 1979 SC 136] [LNIND 1979 SC 136]. 12 Hari Prasad v. State, AIR 1972 Pat 4; Lalit Mohandeb v. Union of India, AIR 1972 SC 995 [LNIND 1972 SC 99] [LNIND 1972 SC 99] [LNIND 1972 SC 99]: (1973) 3 SCC 862; Union of India v. Majji Jangammayya, AIR 1977 SC 757 [LNIND 1976 SC 424] [LNIND 1976 SC 424] [LNIND 1976 SC 424]: (1977) 1 SCC 606. 13 Balbir Singh v. State of Punjab, AIR 1975 P&H 83; Indrasawhney v. Union of India, AIR 1992 SC 477 [LNIND 1991 SC 597] [LNIND 1991 SC 597] [LNIND 1991 SC 597]; JAIN, Cases, 389. 14 Southern Railway v. Raghavendrachar, AIR 1966 SC 1529 [LNIND 1965 SC 387] [LNIND 1965 SC 387] [LNIND 1965 SC 387]: 1966(3) SCR 106. 15 State of U.P. v. Babu Ram, AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292]: 1970(1) LLJ 670. 16 AIR 1967 SC 1264 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22]: 1967(2) LLJ 427 : 1967(2) SCR 496 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22]. 17 AIR 1970 SC 1314 [LNIND 1970 SC 254] [LNIND 1970 SC 254] [LNIND 1970 SC 254]: (1970) 2 SCC 211. 18 AIR 1973 SC 1252 [LNIND 1972 SC 593] [LNIND 1972 SC 593] [LNIND 1972 SC 593]: 1973(1) LLJ 119 : (1973) 1 SCC 461 [LNIND 1972 SC 593] [LNIND 1972 SC 593] [LNIND 1972 SC 593]. 19 E. v. Naidu v. U.O.I., AIR 1973 SC 698 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC 2]: (1973) 1 SCC 361. 20 It may be of interest to note that Justice Vaidalingam participated in both cases, Dasaswellas Naidu, and yet no mention was made of Dasin Naidu. 21 AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: 1982(1) LLJ 465 : (1982) 2 SCC 7 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]; JAIN, Cases, Chapter VII, 383. 22 See, in this connection, supra, Chapter V, under 'Retrospectivity'. 23 v. Balasubramaniam v. T.N. Housing Board, AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]: 1988(2) LLJ 435 : (1987) 4 SCC 738 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]; JAIN, Cases, Chapter VII, 435. Also, Jacob M. Puthuparambil v. Kerala Water Authority, AIR 1990 SC 2228 [LNIND 1990 SC 555] [LNIND 1990 SC 555] [LNIND 1990 SC 555]: (1991) 1 SCC 28 : 1991(2) LLJ 65 [LNIND 1990 SC 555] [LNIND 1990 SC 555] [LNIND 1990 SC 555]. The authority had power to make regulations with the previous appoval of the State Government. The State Government made some service rules for its employees under Art. 309. Hence these rules were statutory in character. The authority adopted these rules by are solution without any governmental approval. The Court ruled that the 'rules' in their application to the authority's staff-members had "no statutory flavour or force". 24 Municipal Corporation, Amritsar v. Senior Superintendent of Post of fices, Amritsar Division, (2004) 3 SCC 92 [LNIND 2004 SC 88] [LNIND 2004 SC 88] [LNIND 2004 SC 88] (para 7) : AIR 2004 SC 2912 [LNIND 2004 SC 88] [LNIND 2004 SC 88] [LNIND 2004 SC 88]. 25 (1996) 8 SCC 692, 694 (para5); See also Ratan Lal Bohra v. State of Rajasthan, (1996) 8 SCC 735 [LNIND 1996 SC 615]

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[LNIND 1996 SC 615] [LNIND 1996 SC 615], 737 (para 6-10) : AIR 1996 SC 3076 [LNIND 1996 SC 615] [LNIND 1996 SC 615] [LNIND 1996 SC 615]; Dilip Kumar Ghosh v. Chairman, (2005) 7 SCC 567 [LNIND 2005 SC 689] [LNIND 2005 SC 689] [LNIND 2005 SC 689], 572 (para 7). 26 Ratan Kumar Tandon v. State of U.P., (1997) 2 SCC 161 [LNIND 1996 SC 1147] [LNIND 1996 SC 1147] [LNIND 1996 SC 1147], 167 (para 12) : AIR 1996 SC 2710 [LNIND 1996 SC 1147] [LNIND 1996 SC 1147] [LNIND 1996 SC 1147]. 27 Union of India v. Charanjits.Gill, (2000) 5 SCC 742 [LNIND 2000 SC 702] [LNIND 2000 SC 702] [LNIND 2000 SC 702], 761 (para 25), reliedonin Subhash Ramkumar Bind v. State of Maharashtra, (2003) 1 SCC 506 [LNIND 2002 SC 695] [LNIND 2002 SC 695] [LNIND 2002 SC 695], 522-24 (para 21) : AIR 2003 SC 269 [LNIND 2002 SC 695] [LNIND 2002 SC 695] [LNIND 2002 SC 695]; See also N.K. Pankajakshan Nair v. P. v. Jayraj, JT (2001) (4) SC 406 : 2001(4) Supreme 529 : (2002) 10 SCC 396; K.H. Siraj v. High Court of Kerala, (2006) 6 SCC 395 [LNIND 2006 SC 426] [LNIND 2006 SC 426] [LNIND 2006 SC 426], 422 (para62). 28 Laxmandundappa Dhamanekar v. Management of Vishwa Bharat Seva Samiti, (2001) 8 SCC 378 [LNIND 2001 SC 2167] [LNIND 2001 SC 2167] [LNIND 2001 SC 2167], 384 (para 9) : AIR 2001 SCC 2836; See also Parmeshwar Prasad v. U.O.I., (2002) 1 SCC 145 [LNIND 2001 SC 3130] [LNIND 2001 SC 3130] [LNIND 2001 SC 3130], 148 (para 4) : AIR 2001 SC 2982 [LNIND 2001 SC 3130] [LNIND 2001 SC 3130] [LNIND 2001 SC 3130]. 29 (1996) 8 SCC 105, 107-108 (paras6 and 7). 30 Ram Phal Kundu v. Kamal Sharma, (2004) 2 SCC 759 [LNIND 2004 SC 104] [LNIND 2004 SC 104] [LNIND 2004 SC 104], 776 (para 19) : AIR 2004 SC 1657 [LNIND 2004 SC 104] [LNIND 2004 SC 104] [LNIND 2004 SC 104]. See also Ajay Gandhi v. B.Singh, (2004) 2 SCC 120 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11], 128 (para 19) : AIR 2004 SC 1391 [LNIND 2004 SC 11] [LNIND 2004 SC 11] [LNIND 2004 SC 11]; Amrit Paper v. Commissioner of Central Excise, (2006) 6 SCC 345 [LNIND 2006 SC 553] [LNIND 2006 SC 553] [LNIND 2006 SC 553], 347-48 (paras 8 and 9), relyingon Ichalkaranji Machine Centre (P.) Ltd. v. CCE, (2005) 1 SCC 465 [LNIND 2004 SC 1234] [LNIND 2004 SC 1234] [LNIND 2004 SC 1234] : (2004) 174 ELT 417and held Orissa Extrusions v. CCE, (2000) 2 SCC 179 : (2000) 115ELT30, not good law. 31 C. Kasturi v. Secretary, Regional Transport Authority, (1996) 8 SCCC 314. Contra : Union of India v. P.K. Lambodaran Nair, (2001) 9 SCC 276-77. 32 DDA v. Joginder S. Monga, (2004) 2 SCC 297 [LNIND 2003 SC 1091] [LNIND 2003 SC 1091] [LNIND 2003 SC 1091], 312 (para30) : AIR 2004 SC 3291 [LNIND 2003 SC 1091] [LNIND 2003 SC 1091] [LNIND 2003 SC 1091]. See also T.N. Housing Board v. N. Balasubramanium, (2004) 6 SCC 85, 87 (para6); N.K. Pankajakshan Nair v. P. v. Jayraj, JT 2001 (4) SC 406 : 2001 (4) Supreme 529; Virendra Singh Hooda v. State of Haryana, (2004) 12 SCC 588 [LNIND 2004 SC 1104] [LNIND 2004 SC 1104] [LNIND 2004 SC 1104] (para 24) : AIR 2005 SC 137 [LNIND 2004 SC 1104] [LNIND 2004 SC 1104] [LNIND 2004 SC 1104]. 33 K.P. Sudhakaran v. State of Kerala, (2006) 5 SCC 386 [LNIND 2006 SC 383] [LNIND 2006 SC 383] [LNIND 2006 SC 383], 393 (para 12.4). 34 State of Punjab v. Dalbir Kaur Kalyan, (2000) 6 SCC 516 [LNIND 2000 SC 793] [LNIND 2000 SC 793] [LNIND 2000 SC 793], 518 (para5). See also Govt. of Orissa v. Ashok Transport Agency, (2005) 1 SCC 536 [LNIND 2004 SC 1135] [LNIND 2004 SC 1135] [LNIND 2004 SC 1135], 540-42 (paras9-11). 35 M. Ramachandran v. Govind Ballabh, (1999) 8 SCC 592 [LNIND 1999 SC 849] [LNIND 1999 SC 849] [LNIND 1999 SC 849], 603 (para 12) : AIR 1999 SC 3601 [LNIND 1999 SC 849] [LNIND 1999 SC 849] [LNIND 1999 SC 849]. 36 Director General of Posts v. B. Ravindran, (1997) 1 SCC 641 [LNIND 1996 SC 1874] [LNIND 1996 SC 1874] [LNIND 1996 SC 1874], 648 (paras15 and 16). 37 N.K. Pankajakshan Nair v. P. v. Jayaraj, JT 2001 (4) SC 406 : 2001(4) Supreme529 : (2002) 10 SCC 396. 38 Madanlal Sethi v. State of M.P., (1997) 5 SCC 141 [LNIND 1997 SC 558] [LNIND 1997 SC 558] [LNIND 1997 SC 558], 146 (para 12) : AIR 1997 SC 2264 [LNIND 1997 SC 558] [LNIND 1997 SC 558] [LNIND 1997 SC 558]. 39 P.Sadagopan v. Food Corporation of India, Zonal of fice(SouthZone), AIR 1997 SC 2700 [LNINDORD 1997 SC 154] [LNINDORD 1997 SC 154] [LNINDORD 1997 SC 154]: (1997) 4 SCC 301. 40 State of U.P. v. Johrimal, (2004) 4 SCC 714, 728 (para20) : AIR 2004 SC 3800. 41 Shyam Bahadur Tripathi v. U.P. State Public Services Tribunal, (1997) 2 SCC 251 (para2) : AIR 1997 SC 2270 [LNIND 1996 SC 1897] [LNIND 1996 SC 1897] [LNIND 1996 SC 1897]. 42 East India Commercialco. v. Collector of Customs, AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND 1962 SC 228] [LNIND 1962 SC 228]: (1963) 3 SCC 338. 43 R. v. Secretary of State for Home Affairs, exp. Hosenball, (1977) 3 All ER 452. 44 Fernandez v. State of Mysore, AIR 1967 SC 1753 [LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139]: 1967(3) SCR 636; Also, JAIN, Cases, Chapter VII, Sec. D.K. Properties Ltd. v. Calcutta Municipality, AIR 1971 Cal 488; T.M.

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Peermohamed v. D.F.O., AIR 1974 Ker 192. 45 Supra, Chapter v. 46 General Electrical & Engineering Co., Trichur v. Chief Engineer, AIR 1974 Ker 23 [LNIND 1972 KER 103] [LNIND 1972 KER 103] [LNIND 1972 KER 103]. 47 Abdulla Rowther v. S.T.A. Tribunal AIR 1959 SC 896; S.P. Minocha v. State, AIR 1973 MP 84 [LNIND 1972 MP 47] [LNIND 1972 MP 47] [LNIND 1972 MP 47]; also, See, Fernandez v. State of Mysore, AIR 1967 SC 1753 [LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139]: (1967) 3 SCR 636; D.K. Properties Ltd. v. Calcutta Municipality, AIR 1971 Cal 488; T.M. Peermohemed v. D.F.O., AIR 1974 Ker 192. Also see, infra, under Judicial Control. 48 AIR 1973 Ori. 217. 49 I. Co-op. Society v. K. Service Co-op. Bank, AIR 1975 Ker 4. 50 Dy. Asstt. Iron & Steel Controller v. L.Manikchand, AIR 1972 SC 935 [LNIND 1972 SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC 624]: (1972) 3 SCC 324; andhnra Industrial Works v. Chief Controller, AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC 169]: (1974) 2 SCC348. Also see, supra, this Chapter. 51 J.C.C. Imports & Exports v. Aminchand, AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176]: 1966 (1) SCR 262. 52 Co-op. Credit Bank v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152]: (1969) 2 SCC 43; JAIN, Cases, 368. 53 AIR 1988 SC 1681 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND 1988 SC 692]: (1988) 4 SCC 364. Also see, JAIN, Cases, Chapter VII, Sec. D., 408. 54 AIR 1989 SC, 2138, 2181 : 1990 Supp SCC 440. 55 Shree Ganesh Steel Rolling Mills v. U.O.I, AIR 1989 Cal 230 [LNIND 1988 CAL 301] [LNIND 1988 CAL 301] [LNIND 1988 CAL 301]:See also Distt. Magistrate, Allahabad v. Harminder Pal Singh, (2001) 3 SCC 711 [LNIND 2001 SC 613] [LNIND 2001 SC 613] [LNIND 2001 SC 613], 713-14 (para2) : AIR 2001 SC 1054 [LNIND 2001 SC 613] [LNIND 2001 SC 613] [LNIND 2001 SC 613]. 56 Nizam Sugar Factory Ltd. v. Collector of Central Excise, (2003) 11 SCC 757, 758 (paras 1 and 2); Belapur Sugar & Allied Industries Ltd. v. CCE, (1999) 4 SCC 103 [LNIND 1999 SC 402] [LNIND 1999 SC 402] [LNIND 1999 SC 402]; Neoli Sugar Products Factory Ltd. v. CCE, (1999) 9 SCC 195. 57 AIR 2001 SC 2062 [LNIND 2001 SC 1122] [LNIND 2001 SC 1122] [LNIND 2001 SC 1122]: (2001) 5 SCC 629. 58 Secretary (Estt.) Railway Board v. D. Francis Paul, (1996) 10 SCC 134 [LNIND 1996 SC 1051] [LNIND 1996 SC 1051] [LNIND 1996 SC 1051], 136 (para 4) : AIR 1996 SC 2776 [LNIND 1996 SC 1051] [LNIND 1996 SC 1051] [LNIND 1996 SC 1051]. 59 A. Prabhakara Reddy v. State of Karnataka, AIR 1980 Kant. 207; Also see, infra, under Judicial Control. 60 AIR 1965 SC 1196 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284]: 1966(1) LLJ 451. Also see, JAIN, Cases, Chapter VII, Sec.D. Also see, Kumari Regina v. St. A.H.E. School, AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178]: (1972) 4 SCC 188; S. Sahawala v. Director of Public Instructions, AIR 1977 AP 381 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178]. 61 Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333]; JAIN, Cases, Chapter VII, Sec.D., 424. 62 This Act has now been replaced by the Motor Vehicles Act, 1988 (59 of 1988). 63 AIR 1959 SC 694 [LNIND 1959 SC 20] [LNIND 1959 SC 20] [LNIND 1959 SC 20]: 1959 Supp (2) SCR 227. Also see, JAIN, Cases, Chapter VII, 393. 64 Also see, Abdulla Rowther v. State Transport Appellate Tribunal, Madras, AIR 1959 SC 896.It may be interesting to compare the approach of the Court in Raman from that in V.T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: (1982) 2 SCC 7. In Raman, the Court was looking at directions with some disapproval as compared to rules, even though the directions had a statutory base. In Khanzode, the Court looked at directions with approval and practically equated them with rules even though the directions in that case were issued under the general administrative power of the Reserve Bank, a statutory body, and not under any statutory power. 65 Khanzode v. Reserve Bank of India, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: 1982(1) LLJ 465 : (1982) 2 SCC 7 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64] 66 Amitabh Srivastava v. State of M.P., AIR 1982 SC 827 [LNIND 1982 SC 36] [LNIND 1982 SC 36] [LNIND 1982 SC 36]:

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(1982) 1 SCC 514. 67 AIR 1973 SC 303 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507]: (1973) 1 SCC 194; JAIN, Cases, Chapter VII, 427. Also see, MSRTC v. Gopinath Gundachar Char, AIR 1968 SC 464 [LNIND 1967 SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293]: 1968(2) LLJ 144 : 1968(1) SCR 767 [LNIND 1967 SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293]; Shamkant Narayan deshpande v. MIDC, AIR 1993 SC 1173 : 1993 Supp (2) SCC 194 : 1993 (2) LLJ 686. 68 On Mandamus, see infra, under Judicial Control. 69 AIR 1973 SC 303 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507]at 304-5 : (1973) 1 SCC 194 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507]. 70 in Jacob M. Puthuparambil v. Kerala Water Authority, AIR 1990 SC 2228 [LNIND 1990 SC 555] [LNIND 1990 SC 555] [LNIND 1990 SC 555]: (1991) 1SCC 144, the Supreme Court interpreted a direction liberally and favourably to the staff members. 71 Accountant-General v. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93. Also see, infra, under 'Discretion and Direction'. 72 Baleshwar Dass v. State of U.P., AIR 1981 SC 41 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334]: (1980) 4 SCC 226. 73 U.O.I. v. Majji Jangammayya, AIR 1977 SC 757 [LNIND 1976 SC 424] [LNIND 1976 SC 424] [LNIND 1976 SC 424]: (1977) 1 SCC 606. 74 AIR 1988 SC 2255 [LNIND 1988 SC 477] [LNIND 1988 SC 477] [LNIND 1988 SC 477]: (1989) 1SCC 175; JAIN, Cases, Chapter VII, 433. 75 Also see, Paluru Ramkrishnaiah v. U.O.I, AIR 1990 SC 166 [LNIND 1989 SC 747] [LNIND 1989 SC 747] [LNIND 1989 SC 747]: (1989) 2 SCC 541 : 1989(2) LLJ 47 [LNIND 1989 SC 172] [LNIND 1989 SC 172] [LNIND 1989 SC 172]and supra, under 'Directions in lieu of Rules', supra, this Chapter. 76 Juthika v. State of M.P., AIR 1976 SC 2534 [LNIND 1976 SC 306] [LNIND 1976 SC 306] [LNIND 1976 SC 306]: (1976) 4 SCC 96. 77 State of Sikkim v. Dorjee Tshering Bhutia, AIR 1991 SC 1993 : (1991) 4 SCC 243 : 1993(3) LLJ 47. 78 AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]: (1987) 4 SCC 738. 79 Also see, State of Gujarat v. Akhilesh, AIR 1987 SC 2135 [LNIND 1987 SC 611] [LNIND 1987 SC 611] [LNIND 1987 SC 611]: (1987) 4 SCC 482, State of U.P. v. Chandra Mohan, AIR 1977 SC 2411 : (1977) 4 SCC 345; Brij Mohan Singh v. State of Punjab, AIR 1987 SC 948 [LNIND 1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275]: 1987(1) LLJ 522 : (1987) 2 SCC 188 [LNIND 1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275], infra; Virendra Kumar v. U.O.I., AIR 1981 SC 947 : (1981) 1 SCC 485. 80 AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176]: 1966(1) SCR 262; supra, note 92. Also see, Prem Chand Somchand Shah v. U.O.I., (1991) 2 SCC 48 [LNIND 1991 SC 64] [LNIND 1991 SC 64] [LNIND 1991 SC 64] : (1991) 53 ELT 498; Oswal Woollen Mills Ltd. v. Union of India, AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167]: (1983) 4 SCC 345. 81 Also see, U.O.I. v. Anglo-AfghanAgencies, AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]: 1968(2) SCR 366; Oswal Woollen Mills Ltd. v. Union of India, AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167]: (1983) 4 SCC 345. Also, Prem Chand Somchand Shah v. U.O.I., (1991) 2 SCC 48 [LNIND 1991 SC 64] [LNIND 1991 SC 64] [LNIND 1991 SC 64] : (1991) 53 ELT 498. 82 AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC 169]: (1974) 2 SCC 348. 83 AIR 1976 P&H 102. 84 Also see, M.L.Jain v. U.O.I., AIR 1993 SC 1150 : 1993 Supp (2) SCC 214. 85 AIR 1963 SC 1626 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25]: 1964(1) SCR 809. 86 Raman and Raman v. State of Madras, AIR 1959 SC 694 [LNIND 1959 SC 20] [LNIND 1959 SC 20] [LNIND 1959 SC 20]: 1959Supp (2) SCR 217. 87 Also see, Sri R.K. Rice & Groundnuts Oil Mill v. State of A.P., AIR 1983 AP 383 [LNIND 1983 AP 195] [LNIND 1983 AP 195] [LNIND 1983 AP 195].Directions issued under an order which was issued under the Essential Commodities Act, 1955, were held enforceable. 88 Virendra Kumar v. U.O.I., AIR 1981 SC 947 : (1981) 1 SCC 485

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89 Navnit Lal C. Jhaveri v. K.K.Sen, AIR 1965 SC 1375 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287]: (1965) 56 ITR 198. 90 AIR 1972 SC 524 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548]: (1972) 4 SCC 474. Also see, JAIN, Cases, Chapter VII, 452. 91 In a near lier case, Inre Meera Sahib Tharaganar, 23 ITR 451 (1953), the directions issued under the Act were held to be having no statutory force. 92 For comments on Ellerman Lines v. Commissioner of Income Tax, West Bengal, AIR 1972 SC 524 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548]: (1972) 4 SCC 474, see, S.N. JAIN, Legal Nature of Administrative Instructions under the Income Tax Act, 14 J.I.L.I. 383 (1972); M.P. JAIN, VIIIA. S.I.L., 231 (1972). 93 K.P. Varghese v. L.T. officer, Ernakulam, AIR 1981 SC 1922 [LNIND 1981 SC 373] [LNIND 1981 SC 373] [LNIND 1981 SC 373]: (1981) 4 SCC 173, JAIN, Cases, Chapter VII, 454. 94 AIR 1991 SC 1806 [LNIND 1990 SC 60] [LNIND 1990 SC 60] [LNIND 1990 SC 60]: (1990) 2 SCC 231 : (1990) 183 ITR 1 [LNIND 1990 JNK 2] [LNIND 1990 JNK 2] [LNIND 1990 JNK 2]; See also CIT v. Vasudeo v. Dempo, 1993 Supp (1) SCC 612.JAIN, supra, Chapter VII, 456. 95 Also see, Y.P.Chawla v. M.P.Tiwari, AIR 1992 SC 1360 [LNIND 1992 SC 299] [LNIND 1992 SC 299] [LNIND 1992 SC 299]: (1992) 2 SCC 672. 96 Rajan Ramkrishna v. W.T. Commr., (1981) Tax LR 282. 97 (1994) 4 SCC 375 : AIR 1994 SC 2416 : (1994) 210 ITR 129. See also K. Kuppusamy v. State of T.N., (1998) 8 SCC 469 (para3). 98 (1997) 6 SCC 393, 404 (para21) : AIR 1997 SC 3943. 99 AIR 1980 P&H 103. 1 v. R.Potdar v. State of Maharashtra, AIR 1983 Bom 76 [LNIND 1982 BOM 183] [LNIND 1982 BOM 183] [LNIND 1982 BOM 183]. 2 State of M.P. v. Nivedita Jain, AIR 1981 SC 2045 [LNIND 1981 SC 395] [LNIND 1981 SC 395] [LNIND 1981 SC 395]: (1981) 4SCC 296. 3 Anupam Gupta v. Secy, Medical Health, Lucknow, AIR 1992 All 1 [LNIND 1991 ALL 456] [LNIND 1991 ALL 456] [LNIND 1991 ALL 456]; Ashwin Prafulla Pimpalwar v. State of Maharashtra, (1991) Mhlj 1336 [LNIND 1991 BOM 471] [LNIND 1991 BOM 471] [LNIND 1991 BOM 471], 1345; JAIN, Cases, Chapter VII. Sec.D(iii). 4 Oswal Woollen Mills Ltd. v. U.O.I., AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167]: (1983) 4 SCC 345; Collector of Customs v. Mansingka Bros., (1988) 38 ELT 105, JAIN, Cases, Chapter VII(v) ; Prem Chand Somchand Shah v. U.O.I., (1991) 2 SCC 48 [LNIND 1991 SC 64] [LNIND 1991 SC 64] [LNIND 1991 SC 64] : JT1991(1) SC 340. 5 (1996) 9 SCC 663, 666 (para 11) : AIR 1996 SC 2731. See also Poulose and Mathen v. Collector of Central Excise, (1997) 3 SCC 50, 58 (para 15) : AIR 1997 SC 965; Collector of Central Excise v. Usha Martin Industries, (1997) 7 SCC 47 [LNIND 1997 SC 1882] [LNIND 1997 SC 1882] [LNIND 1997 SC 1882], 55 (para 21) : AIR 1997 SC 3871 [LNIND 1997 SC 1882] [LNIND 1997 SC 1882] [LNIND 1997 SC 1882]; Ranadey Micro nutrients v. CCE, (1996) 10 SCC 387 [LNIND 1996 SC 1432] [LNIND 1996 SC 1432] [LNIND 1996 SC 1432] : AIR 1997 SC 69 [LNIND 1996 SC 1432] [LNIND 1996 SC 1432] [LNIND 1996 SC 1432]; CCE v. Jayant Dalal (P.) Ltd., (1997) 10 SCC 402; Commissioner of Sales Tax v. Indra Industries, (2000) 9 SCC 66, 67 (paras 2 and 3).Instructions issued by Narcotics Control Bureau though have no force of law, but to be followed as a guide, Khet Singh v. U.O.I., (2002) 4 SCC 380 [LNIND 2002 SC 227] [LNIND 2002 SC 227], 385 (para 10) : AIR 2002 SC 1450 [LNIND 2002 SC 227] [LNIND 2002 SC 227]. 6 (1981) 4SCC 173, 188 (para 12) : 1981 SCC (Tax) 293. See also U.O.I. v. Azadi Bachaoandolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 29-30 (paras 36, 37 and 41) : AIR 2004 SC 1107 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853]. 7 Navnit L.C. Javeri v. K.K. Sen, (1965) 56 ITR 198 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287] : AIR 1965 SC 1375 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287]and Ellerman Lines Ltd. v. CIT, (1972) 4 SCC 474 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548] : 1974 SCC (Tax) 304, ascitedin U.O.I. v. Azadi Bachaoandolan, (2004) 10 SCC 1 [LNIND 2003 SC 853] [LNIND 2003 SC 853] [LNIND 2003 SC 853], 30 (para 42). 8 (1999) 4 SCC 599 [LNIND 1999 SC 548] [LNIND 1999 SC 548] [LNIND 1999 SC 548], 605 (para 9) : (1999) 237 ITR 889 [LNIND 1999 SC 548] [LNIND 1999 SC 548] [LNIND 1999 SC 548], 896. 9 (2002) 1 SCC 633 [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] : (2001) 252 ITR 1 [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] : AIR 2001 SC 3868 [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] [LNIND 2001 SC 2389].

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10 (2002) 2 SCC 127 [LNIND 2001 SC 2838] [LNIND 2001 SC 2838] [LNIND 2001 SC 2838], 130 (para 11) : AIR 2002 SC 453 [LNIND 2001 SC 2838] [LNIND 2001 SC 2838] [LNIND 2001 SC 2838], 11 WILH, Wilhelmsen v. Commissioner of Income-tax, (1996) 9 SCC 161 [LNIND 1996 SC 1026] [LNIND 1996 SC 1026] [LNIND 1996 SC 1026], 169-170 (para 14) : AIR 1996 SC 3364 [LNIND 1996 SC 1026] [LNIND 1996 SC 1026] [LNIND 1996 SC 1026]. 12 WILH, Wilhelmsen v. Commissioner of Income-tax, (1996) 9 SCC 161 [LNIND 1996 SC 1026] [LNIND 1996 SC 1026] [LNIND 1996 SC 1026], 167 (para 9) : AIR 1996 SC 3364 [LNIND 1996 SC 1026] [LNIND 1996 SC 1026] [LNIND 1996 SC 1026]. 13 CIT v. Hero Cycles Pvt. Ltd., (1997) 8 SCC 502 [LNIND 1997 SC 1895] [LNIND 1997 SC 1895] [LNIND 1997 SC 1895], 506 (para 14) : AIR 1998 SC 1555 [LNIND 1997 SC 1895] [LNIND 1997 SC 1895] [LNIND 1997 SC 1895]. 14 Jagathigowda C.N. v. Chairman, Cauvery Gramina Bank, (1996) 9 SCC677, 680 (para 8) : AIR 1996 SC 2733 [LNIND 1996 SC 1138] [LNIND 1996 SC 1138] [LNIND 1996 SC 1138]. 15 DDA v. Vijay C. Gurshaney, (2003) 7 SCC 301 [LNIND 2003 SC 706] [LNIND 2003 SC 706] [LNIND 2003 SC 706], 307 (para 10) : AIR 2003 SC 3669 [LNIND 2003 SC 706] [LNIND 2003 SC 706] [LNIND 2003 SC 706]. 16 State of M.P. v. Kewal Yadav, (2004) 11 SCC 317, 319-20 (paras 6 and 7). 17 Prakash H. Jain v. Marie Fernandes, (2003) 8 SCC 431 [LNIND 2003 SC 826] [LNIND 2003 SC 826] [LNIND 2003 SC 826], 438-39 (paras12 and 13) : AIR 2003 SC 431. 18 Bejgam Veeranna Venkata Narasimloo v. State of A.P., (1998) 1 SCC 563 [LNIND 1997 SC 1481] [LNIND 1997 SC 1481] [LNIND 1997 SC 1481], 570 (para 14) : AIR 1998 SC 542 [LNIND 1997 SC 1481] [LNIND 1997 SC 1481] [LNIND 1997 SC 1481]. 19 Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 150 (para 58) : AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. 20 Virender Hooda v. State of Haryana, (1999) 3 SCC 696 [LNIND 1999 SC 243] [LNIND 1999 SC 243] [LNIND 1999 SC 243], 698-99 (paras 3 and 4) : AIR 1999 SC 1701 [LNIND 1999 SC 243] [LNIND 1999 SC 243] [LNIND 1999 SC 243]. 21 (1999) 7 SCC 44 [LNIND 1999 SC 727] [LNIND 1999 SC 727] [LNIND 1999 SC 727], 48-49 (paras 7 and 11) : AIR 1997 SC 3412 [LNIND 1997 SC 1064] [LNIND 1997 SC 1064] [LNIND 1997 SC 1064], following Abhey Ram v. Union of India, (1997) 5 SCC 421 [LNIND 1997 SC 702] [LNIND 1997 SC 702] [LNIND 1997 SC 702] : AIR 1997 SC 2564 [LNIND 1997 SC 702] [LNIND 1997 SC 702] [LNIND 1997 SC 702]. 22 Laxmandundappa Dhamanekar v. Management of Vishwa Bharata Seva Samiti, (2001) 8 SCC 378 [LNIND 2001 SC 2167] [LNIND 2001 SC 2167] [LNIND 2001 SC 2167], 385 (para 11) : AIR 2001 SC 3836. 23 (1977) 4 SCC 345, 355 (para26) : (1978) 1 SCR 521. See also Naga Peoples' Movement of Human Rights v. Union of India, (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 150 (paras 56-58) : AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. 24 State of Maharashtra v. Milind, (2001) 1 SCC 4 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] (paras 31-34) : AIR 2001 SC 393 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC 1675]. 25 State of A.P. v. A.P. Pensioners' Association, (2005) 13 SCC 161 [LNIND 2005 SC 897] [LNIND 2005 SC 897] [LNIND 2005 SC 897], 167 (para25). 26 Dhan Raj v. State of J&K, (1998) 4 SCC 30 [LNIND 1998 SC 344] [LNIND 1998 SC 344] [LNIND 1998 SC 344], 36 (para 13) : AIR 1998 SC 1747 [LNIND 1998 SC 344] [LNIND 1998 SC 344] [LNIND 1998 SC 344]. 27 Laxman Naskar v. Union of India, AIR 2000 SC 986 [LNIND 2000 SC 1917] [LNIND 2000 SC 1917] [LNIND 2000 SC 1917], 987 (para 3) : (2000) 2 SCC 595 [LNIND 2000 SC 1917] [LNIND 2000 SC 1917] [LNIND 2000 SC 1917]. 28 State of W.B. v. M.R. Mondal, (2001) 8 SCC 443 [LNIND 2001 SC 1921] [LNIND 2001 SC 1921] [LNIND 2001 SC 1921], 455 (para 16) : AIR 2001 SC 3471; See also Laxminarayan R. Bhattad v. State of Maharashtra, (2003) 5 SCC 413 [LNIND 2003 SC 401] [LNIND 2003 SC 401] [LNIND 2003 SC 401], 431 (para52). 29 A.P. State Electricity Board v. J. Venkateswara Rao, (2003) 1 SCC 116, 121 (para 10). 30 Chandigarh Administration v. Surinder Kumar, (2004) 1 SCC 530 [LNIND 2003 SC 1034] [LNIND 2003 SC 1034] [LNIND 2003 SC 1034], 538-39 (paras 13, 14 and 15). 31 Chittoor Zilla Vyavasayadarula Sangham v. A.P. State Electricity Board, (2001) 1 SCC 396 [LNIND 2000 SC 1425] [LNIND 2000 SC 1425] [LNIND 2000 SC 1425], 406-7 (para22) : AIR 2001 SC 107 [LNIND 2000 SC 1425] [LNIND 2000 SC 1425] [LNIND 2000 SC 1425].

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32 State of Uttaranchal v. Sidharath Srivastava, (2003) 9 SCC 336 [LNIND 2003 SC 1223] [LNIND 2003 SC 1223] [LNIND 2003 SC 1223], 355 (para 28) : AIR 2003 SC 4062 [LNIND 2003 SC 1223] [LNIND 2003 SC 1223] [LNIND 2003 SC 1223]. 33 Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 [LNIND 2003 SC 856] [LNIND 2003 SC 856] [LNIND 2003 SC 856], 562 (para 8) : AIR 2003 SC 4560 [LNIND 2003 SC 856] [LNIND 2003 SC 856] [LNIND 2003 SC 856]. 34 Sureshchandra Singh v. Fertilizer Corporation of India Ltd., (2004) 1 SCC 592 [LNIND 2003 SC 1098] [LNIND 2003 SC 1098] [LNIND 2003 SC 1098], 594 (para 4). 35 State of U.P. v. Ajay Kumar, (1997) 4 SCC 88 [LNIND 1997 SC 268] [LNIND 1997 SC 268] [LNIND 1997 SC 268] : JT 1997 (3) SC 219 [LNIND 1997 SC 268] [LNIND 1997 SC 268] [LNIND 1997 SC 268]. 36 State of Bihar v. Bihar Rajya M.S.E.S.K.K. Mahasangh, (2005) 9 SCC 129 [LNIND 2004 SC 1067] [LNIND 2004 SC 1067] [LNIND 2004 SC 1067], 153 (para 64). 37 State of Bihar v. Project Uchcha Vidya, Sikshaksangh, (2006) 2 SCC 545 [LNIND 2006 SC 5] [LNIND 2006 SC 5] [LNIND 2006 SC 5], 574 (para 69). 38 Anjan Kumar v. Union of India, (2006) 3 SCC 257 [LNIND 2006 SC 95] [LNIND 2006 SC 95] [LNIND 2006 SC 95], 261 (para 5). 39 HEC Voluntary Retd. Employees Welfare Society v. Heavy Engineering Corporation Ltd., (2006) 3 SCC 708 [LNIND 2006 SC 139] [LNIND 2006 SC 139] [LNIND 2006 SC 139], 720 (paras 31 and 32), relyingon State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667. 40 Subhash Ramkumar Bind v. State of Mahasrashtra, JT2002(9) SC 445 : 2002(8) Scale 410 [LNIND 2002 SC 695] [LNIND 2002 SC 695] [LNIND 2002 SC 695] : AIR 2003 SC 269 [LNIND 2002 SC 695] [LNIND 2002 SC 695] [LNIND 2002 SC 695]. 41 Kilasho Devi Burman v. Commissioner of Income-tax, (1996) 7 SCC 613 [LNIND 1996 SC 304] [LNIND 1996 SC 304] [LNIND 1996 SC 304] : AIR 1996 SC 3114 [LNIND 1996 SC 304] [LNIND 1996 SC 304] [LNIND 1996 SC 304]. 42 State of Kerala v. M.N. Sankara Narayanan, (1996) 10 SCC 353 [LNIND 1996 SC 1205] [LNIND 1996 SC 1205] [LNIND 1996 SC 1205] : JT1996(7) SC 462. 43 v. T. Khanzode v. Reserve Bank of India, AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: (1982) 2 SCC 7; Sadhu Singh v. State of Punjab, AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]: (1984) 2 SC 310 : 1984 Crlj 404; State of Punjab v. Joginder Singh, AIR 1990 SC 1396 [LNIND 1990 SC 181] [LNIND 1990 SC 181] [LNIND 1990 SC 181]: (1990) 2 SCC 661. 44 Palaru Ramkrishnaiah v. U.O.I., AIR 1990 SC 166 [LNIND 1989 SC 747] [LNIND 1989 SC 747] [LNIND 1989 SC 747]: (1989) 2 SCC 541. 45 State of Gujarat v. Lalsingh, AIR 1981 SC 368 [LNIND 1980 SC 329] [LNIND 1980 SC 329] [LNIND 1980 SC 329]: 1980 Crlj 1413; Ashok Industries v. State, AIR 1979 Pat 217; A.C. Jose v. Sivanpillai, AIR 1984 SC 921 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66]: (1984) 3 SCC 656; Kaverico-op.GroupHousingSocietyLtd. v. U.O.I., AIR 1991 Del 217 [LNIND 1991 DEL 303] [LNIND 1991 DEL 303] [LNIND 1991 DEL 303]. 46 Karani Properties Ltd. v. Calcutta Municipality, AIR 1973 Cal 488 [LNIND 1973 CAL 117] [LNIND 1973 CAL 117] [LNIND 1973 CAL 117]; Chamkaur Singh v. State of Punjab, AIR 1991 P&H 26. See also Jhunjhunwala v. State of U.P., (2006) 8 SCC 196 [LNIND 2006 SC 764] [LNIND 2006 SC 764] [LNIND 2006 SC 764], 199-200 (para 11). 47 Malik Mazhar Sultan v. U.P. Public Service Commission, (2006) 9 SCC 507 [LNIND 2006 SC 232] [LNIND 2006 SC 232] [LNIND 2006 SC 232], 512 (para 21). 48 Supra. Also, State of M.P. v. G.S. Dall & flour Mills, AIR 1991 SC 772 [LNIND 1990 SC 563] [LNIND 1990 SC 563] [LNIND 1990 SC 563], 787 : 1992 Supp (1) SCC 150. 49 U.O.I. v. Somasundaram, AIR 1988 SC 2255 [LNIND 1988 SC 477] [LNIND 1988 SC 477] [LNIND 1988 SC 477]: (1989) 1 SCC 175. 50 Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222]: State of Maharashtra v. Chandrakant, 1968(2) LLJ 830 [LNIND 1967 SC 223] [LNIND 1967 SC 223] [LNIND 1967 SC 223]; AIR 1981 SC 1990 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]: (1981) 4 SCC 130 : 1981(2) LLJ 433 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]; East India Commercial Company v. Collector of Customs, AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND 1962 SC 228] [LNIND 1962 SC 228]: (1963) 3 SCR 338. 51 Rohini Dattatraya v. Nagpur University, AIR 1984 Bom 115; Ex Capt.K. Balasubramanian v. State of Tamilnadu, (1991) 2 SCC 708 [LNIND 1991 SC 148] [LNIND 1991 SC 148] [LNIND 1991 SC 148] : 1991(2) LLJ 277 [LNIND 1991 SC 148] [LNIND 1991 SC 148] [LNIND 1991 SC 148] : JT1991(2) SC 562. Executive instructions contrary to rules, ultra vires, K. Dayan and alal v. State of Kerala, (1996) 9 SCC 728 [LNIND 1996 SC 1187] [LNIND 1996 SC 1187] [LNIND 1996 SC 1187], 733 (para 10); Union of India v. Leelamma Jacob, (2003) 12 SCC 280, 284 (para 14); Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498], 622 (para 55) : AIR 2005 SC 2821 [LNIND 2005 SC 498] [LNIND

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2005 SC 498] [LNIND 2005 SC 498]; Pahwa Chemicals (P.) Ltd. v. Commissioner of Central Excise, (2005) 2 SCC 720 [LNIND 2005 SC 193] [LNIND 2005 SC 193] [LNIND 2005 SC 193], 727 (para 13) : AIR 2005 SC 1532 [LNIND 2005 SC 193] [LNIND 2005 SC 193] [LNIND 2005 SC 193]. 52 P.D. Aggarwal v. State of U.P., AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC 475]: (1987) 3 SCC 622. 53 Prem Prakash v. U.O.I., AIR 1984 SC 1831 [LNIND 1984 SC 220] [LNIND 1984 SC 220] [LNIND 1984 SC 220]: 1984 Supp SCC 687 : 1985(2) LLJ 341 [LNIND 1984 SC 220] [LNIND 1984 SC 220] [LNIND 1984 SC 220]. 54 Senior Supdt. of Post of fices v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318 : 1989 Supp (1) SCC 393 : 1989(1) LLJ 441 [LNIND 1989 SC 139] [LNIND 1989 SC 139] [LNIND 1989 SC 139]. 55 State of Maharashtra v. Jagannath, AIR 1989 SC 1133 [LNIND 1989 SC 139] [LNIND 1989 SC 139] [LNIND 1989 SC 139]; Palaru Ramkrishnaiah v. U.O.I., AIR 1990 SC 166 [LNIND 1989 SC 747] [LNIND 1989 SC 747] [LNIND 1989 SC 747]: (1989) 2 SCC 541. 56 Accountant General v. S. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93. Also, U.O.I. v. Amrik Singh, AIR 1994 SC 2316 : (1994) 1 SCC 269. 57 Sitaram v. Ramjibhai, AIR 1987 SC 1293 [LNIND 1987 SC 308] [LNIND 1987 SC 308] [LNIND 1987 SC 308]: (1987) 2 SCC 262; Sitaram v. Sant Ram Sharma, AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222]: (1968):1 SCR 111 : 1968(2) LLJ 830 [LNIND 1967 SC 223] [LNIND 1967 SC 223] [LNIND 1967 SC 223]; Ramchandra Deodhar v. State of Maharashtra, AIR 1974 SC 259 [LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329]: (1974) 1 SCC 317 : 1974(1) LLJ 221 [LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329]. 58 U.O.I. v. Patankar, AIR 1984 SC 1587 [LNIND 1984 SC 211] [LNIND 1984 SC 211] [LNIND 1984 SC 211]: 1984 Supp SCC 359. 59 State of Gujarat v. Akhilesh, AIR 1987 SC 2135 [LNIND 1987 SC 611] [LNIND 1987 SC 611] [LNIND 1987 SC 611]: (1987) 4SCC482. 60 Guman Singh v. State, AIR 1970 Raj 173. 61 State of Haryana v. Shamsher Jang Shukla, AIR 1972 SC 1546 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245]: (1972) 2 SCC 188. Also, District Registrar v. Koyyaktty, AIR 1979 SC 1060 [LNIND 1979 SC 136] [LNIND 1979 SC 136]: 1979 (1) LLJ 356 : (1979) 2 SCC 150 [LNIND 1979 SC 136] [LNIND 1979 SC 136]. 62 AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432]: (1980) 4 SCC 562. 63 Also, State of Maharashtra v. Chandrakant, AIR 1981 SC 1990 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]: 1981 (2) LLJ 433 : (1981) 4 SCC 130 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND 1981 SC 379]; Bindeswari Rare v. State of Bihar, (1989) 4 SCC 465 [LNIND 1989 SC 457] [LNIND 1989 SC 457] [LNIND 1989 SC 457] : JT 1983 (3) SC 712. 64 State of Punjab v. Hari Kishan, AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: 1966 (2) SCR 982. 65 Mannalal Jain v. State of Assam, AIR 1962 SC 386 [LNIND 1961 SC 320] [LNIND 1961 SC 320] [LNIND 1961 SC 320]: 1962 (3) SCR 936; for a comment on the case, see, 4 J.I.L.L. 458 (1962). 66 When a licensing authority acting under government's directions refused licence to a person, there was discrimination against him and Art. 14 was violated. Also see, infra. 67 AIR 1982 SC 827 [LNIND 1982 SC 36] [LNIND 1982 SC 36] [LNIND 1982 SC 36]: (1982) 1 SCC 514. 68 Comptroller & Auditor-General v. K.S. Jagannathan, AIR 1987 SC 537 [LNIND 1986 SC 96] [LNIND 1986 SC 96] [LNIND 1986 SC 96]: (1986) 2 SCC 679. 69 State of andhra Pradesh v. L.Narendra Nath, AIR 1971 SC 2560 [LNIND 1971 SC 120] [LNIND 1971 SC 120] [LNIND 1971 SC 120]at 2563 : (1971) 1 SCC 607 [LNIND 1971 SC 120] [LNIND 1971 SC 120] [LNIND 1971 SC 120]. Also, Anupam Gupta v. Secy. Medical Health, Lucknow, AIR 1992 All 1 [LNIND 1991 ALL 456] [LNIND 1991 ALL 456] [LNIND 1991 ALL 456]. 70 P.M. Mohammaed Ali v. U.O.I., AIR 1974 Ker 157 [LNIND 1973 KER 120] [LNIND 1973 KER 120] [LNIND 1973 KER 120]. 71 Janata Sahakari Bank Ltd. v. Maharashtra, AIR 1993 Bom 252 [LNIND 1993 BOM 199] [LNIND 1993 BOM 199] [LNIND 1993 BOM 199]. 72 Vijay v. State of Maharashtra, (1985) 2 Bom CR 488 [LNIND 1985 BOM 31] [LNIND 1985 BOM 31] [LNIND 1985 BOM 31]. See also Delhi Pradesh Citizen Council v. Union of India, (2006) 6 SCC 305, 310 (para 14).

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73 State of Maharashtra v. Kumari Tanuja, (1999) 2 SCC 462 [LNIND 1999 SC 1496] [LNIND 1999 SC 1496] [LNIND 1999 SC 1496], 469 (para 11) : AIR 1999 SC 791 [LNIND 1999 SC 1496] [LNIND 1999 SC 1496] [LNIND 1999 SC 1496]. See also Municipal Corporation of the City of Ahmedabad v. New Shrock Spg & Wvg. Co. Ltd., (1970) 2 SCC 280 [LNIND 1970 SC 215] [LNIND 1970 SC 215] [LNIND 1970 SC 215] : AIR 1970 SC 1292 [LNIND 1970 SC 215] [LNIND 1970 SC 215] [LNIND 1970 SC 215]; Madan Mohan Pathak v. U.O.I., (1978) 2 SCC 50 [LNIND 1978 SC 64] [LNIND 1978 SC 64] [LNIND 1978 SC 64] : AIR 1978 SC 803 [LNIND 1978 SC 64] [LNIND 1978 SC 64] [LNIND 1978 SC 64]; State of Haryana v. Karnal Co-operative Farmers' Society Ltd., (1993) 2 SCC 363 [LNIND 1993 SC 190] [LNIND 1993 SC 190] [LNIND 1993 SC 190] and State of Haryana v. Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC (II); Indra Sawhney v. U.O.I., AIR 2000 SC 498 : (2000) 1 SCC 168. 74 Supra, Chapter v. 75 AIR 1969 SC 33 : 1968(3) SCR 655. 76 AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]at 1476 : (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219] : 1985(2) LLJ206. Also see, next Chapter under "Exclusion of Natural Justice." 77 AIR 1987 SC 1576 : 1987 Supp SCC 306. 78 K.P. Varghese v. I.T. officer, Emakulam, AIR 1981 SC 1922 [LNIND 1981 SC 373] [LNIND 1981 SC 373] [LNIND 1981 SC 373]: (1981) 4SCC 173. Also, Deshbandhu Gupta & Co. v. Delhi Stock Exchange Ass. Ltd., AIR 1979 SC 1049 [LNIND 1979 SC 151] [LNIND 1979 SC 151] [LNIND 1979 SC 151]: (1979) 4 SCC 565. 79 AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401]at 2420-2421 : 1994 Supp (1) SCC 310. 80 See, Sanjeev Coke Mfg. Co. v. M/s. Bharat Coking Coal Ltd., AIR 1983 SC 239 [LNIND 1982 SC 193] [LNIND 1982 SC 193] [LNIND 1982 SC 193]: (1983) 1 SCC 147. 81 (1998) 7 SCC 579 [LNIND 1998 SC 939] [LNIND 1998 SC 939] [LNIND 1998 SC 939], 600 (para46) : AIR 1999 SC 468 [LNIND 1998 SC 939] [LNIND 1998 SC 939] [LNIND 1998 SC 939]. 82 Anil Ratan Sarkar v. State of W.B., (2001) 5 SCC 327 [LNIND 2001 SC 1018] [LNIND 2001 SC 1018] [LNIND 2001 SC 1018], 337-38 (para24) : AIR 2001 SC 2164 [LNIND 2001 SC 1018] [LNIND 2001 SC 1018] [LNIND 2001 SC 1018]. See also M.C. Mehta v. U.O.I., (2005) 2 SCC 186, 187 (para5); Govt. cannot over rule Court's judgment, State of Haryana v. Ramkumar, (2002) 9 SCC 703 (para5). 83 (1998) 9 SCC 258 [LNIND 1997 SC 1109] [LNIND 1997 SC 1109] [LNIND 1997 SC 1109], para3 : JT 1998 (7) SC 390 [LNIND 1997 SC 1109] [LNIND 1997 SC 1109] [LNIND 1997 SC 1109]. See also U.O.I. v. Association for Democratic Reforms, (2002) 5 SCC 294 [LNIND 2002 SC 362] [LNIND 2002 SC 362] [LNIND 2002 SC 362], 309 (para 19) : AIR 2005 SC 2356 [LNIND 2005 SC 463] [LNIND 2005 SC 463] [LNIND 2005 SC 463]. 84 (2002) 5 SCC 294 [LNIND 2002 SC 362] [LNIND 2002 SC 362] [LNIND 2002 SC 362], 309 (paras 19 and 20) : AIR 2005 SC 2356 [LNIND 2005 SC 463] [LNIND 2005 SC 463] [LNIND 2005 SC 463]. 85 Infra, Chapters XVII, XVIII and XIX. 86 AIR 1973 All 102. Also see, State of Punjab v. Hari Kishan, AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: 1966 (2) SCR 982. 87 AIR 1989 SC 2138 [LNIND 1989 SC 301] [LNIND 1989 SC 301] [LNIND 1989 SC 301]: 1990 Supp SCC 440; JAIN, Cases, 421. 88 See, infra, Chapter XXI on Sub-Delegation. 89 See, infra, Chapterxix, Fettering Discretion. 90 AIR 1977 SC 2411 : (1977) 4 SCC 345; JAIN, Cases, Chapter VII, 428. 91 Also see, Brij Mohan Singh v. State of Punjab, AIR 1987 SC 948 [LNIND 1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275]: 1987(1) LLJ 552 : (1987) 2 SCC 188 [LNIND 1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275]. 92 AIR 1981 SC 947 : (1981) 1 SCC 485; Also see, supra, note 37. 93 Virendra Kumar v. U.O.I., AIR 1981 SC 947 at 948 : (1981) 1 SCC 485. 94 AIR 1987 SC 2135 [LNIND 1987 SC 611] [LNIND 1987 SC 611] [LNIND 1987 SC 611]: (1987) 4 SCC 482; JAIN, Cases, 431. 95 On this topic see, infra, Chapter XVIII; JAIN, Cases, Chapter Xv.

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1 Senior Supdt. of Police v. Izhar Hussain, AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318. 2 For discussion on 'quasi judicial' bodies, see the next five Chapters. 3 See, supra, for S. 43-A, M. v. A., 1939. 4 B. Rajgopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]: 1964(7) SCR 1; JAIN, Cases, 396. Also, Raman & Raman Ltd. v. State of Madras, AIR 1959 SC 694 [LNIND 1959 SC 20] [LNIND 1959 SC 20] [LNIND 1959 SC 20]: 1959 Supp (2) SCR 227, JAIN, Cases, Chapter VII, 393; R. Abdulla Rowdier v. State Transport Appellate Tribunals, Madras, AIR 1959 SC 896. 5 Ravi Roadways v. Asiabi, AIR 1970 SC 1241 : (1970) 2 SCC 259. 6 I. S. T. Commission v. P. Manju Nath, AIR 1972 SC 2250 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341]: 1973(1) SCR 765. Also see, Godika Transport Co. v. T.A.T. Jaipur, AIR 1975 Raj 174. 7 B. Rajgopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]: (1964) 7 SCR 1. 8 Sirpur Paper Mills v. Commr. of Wealth Tax, AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216]: (1970) 1 SCC 795. Also see, Chamkaur Singh v. State of Punjab, AIR 1991 P&H 26; JAIN, Cases, 402. 9 Co-operative Credit Bank v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152]: (1969) 2 SCC 43; JAIN, Cases, 368 : AIR 1993 SC 142 : 1993 Supp (1) SCC 708. 10 State of U.P. v. Kishori Lal, AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500]: (1980) 3 SCC 8. Also see, State of Punjab v. Suraj Parkash, AIR 1963 SC 507 [LNIND 1961 SC 240] [LNIND 1961 SC 240] [LNIND 1961 SC 240]: 1962(2) SCR 711; Shree Ganesh Steel Rolling Mills v. U.O.I., AIR 1989 Cal 230 [LNIND 1988 CAL 301] [LNIND 1988 CAL 301] [LNIND 1988 CAL 301]. 11 State of M.P. v. Thakur Bharat Singh, AIR 1967 SC 1170 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16]: 1967(2) SCR 454; Indira Nehrug and hi v. Raj Narain, AIR 1975 SC 2299 : 1976(2) SCR 347; U.P. Raghavendra Acharya v. State of Karnataka, (2006) 9 SCC 630 [LNIND 2006 SC 411] [LNIND 2006 SC 411] [LNIND 2006 SC 411], 640 (para 28). 12 Shree Ganesh Steel Rolling Mills v. U.O.I., AIR 1989 Cal 230 [LNIND 1988 CAL 301] [LNIND 1988 CAL 301] [LNIND 1988 CAL 301]. 13 Kharak Singh v. State of U.P., AIR 1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436]: 1963(2) Crlj 329. 14 AIR 1973 SC 106 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC 514]: (1972) 2 SCC 788. 15 Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 [LNIND 1986 SC 257] [LNIND 1986 SC 257] [LNIND 1986 SC 257]: (1986) 3 SCC 615. 16 AIR 1982 SC 33 : (1982) 1 SCC 39; JAIN, Cases, 411. 17 Forthese Articles of the Constitution, see, JAIN, Constitutional Law, 547-62, 849.(1987) . 18 for comment sonthiscase, see, A Noteby S.N. JAIN in 24 J.L.L.I, 126(1982) .Also. M.P. JAIN in (1982) XVII A.S.I.L., 375-76. 19 AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690]: (1989) 2 SCC 58; JAIN, Cases, Chapter VI, 344. Also see, supra, Chapter VII. 20 Manmalal Jain v. State of Assam, AIR 1962 SC 384 : 1962(3) SCR 936; supra, Chapter V; infra, Chapter XVIII. 21 AIR 1971 SC 2303 [LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386]: (1971) 1 SCC 38. 22 AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24]: (1984) 2 SCC 310; JAIN, Cases, 358. 23 AIR 1972 SC 1375 [LNIND 1972 SC 67] [LNIND 1972 SC 67] [LNIND 1972 SC 67]: (1972) 1 SCC 660. 24 S.L. Sachdev v. U.O.I., AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432]: (1980) 4 SCC 562. 25 Also see, D.S. Nakara v. U.O.I., AIR 1983 SC 130 [LNIND 1982 SC 208] [LNIND 1982 SC 208] [LNIND 1982 SC 208]: (1983) 1 SCC 305 : 1983(1) LLJ 104 [LNIND 1982 SC 208] [LNIND 1982 SC 208] [LNIND 1982 SC 208]; Mohan Kumar Singhania v. U.O.I., AIR 1992 SC 1, 17 : 1992 Supp (1) SCC 594. 26 AIR 1979 SC 1060 [LNIND 1979 SC 136] [LNIND 1979 SC 136]: (1979) 2 SCC 150 : 1979(1) LLJ 356 [LNIND 1979 SC 136] [LNIND 1979 SC 136].

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27 AIR 1981 SC 41 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334]: (1980) 4 SCC 226 : 1981(1) LLJ 140 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334]. 28 Ushodaya Publications(P) Ltd. v. State of A.P., AIR 1981 AP 109. 29 AIR 1989 SC 669 [LNIND 1988 SC 397] [LNIND 1988 SC 397] [LNIND 1988 SC 397]: (1988) 4 SCC 121. 30 Pranab Kumar Roy v. Reserve Bank of India, AIR 1993 Cal 50 [LNIND 1992 CAL 274] [LNIND 1992 CAL 274] [LNIND 1992 CAL 274]. 31 State of Maharashtra v. Lok Skikshan Sanstha, AIR 1973 SC 588 [LNIND 1971 SC 320] [LNIND 1971 SC 320] [LNIND 1971 SC 320]: (1971) 2 SCC 410. 32 See, Mc Eldowney v. Forde, (1969) 2 Aller 1039. 33 Supra, Chapter V, notes 92-108; Shree Ganeshsteel Rolling Mills v. U.O.I., AIR 1989 Cal 230 [LNIND 1988 CAL 301] [LNIND 1988 CAL 301] [LNIND 1988 CAL 301].Butsee, Khanzode v. R.B.I., AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64]: (1982) 2 SCC 7 : 1982(1) LLJ 465 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64], where a retrospective direction was up held. 34 Delux Land Organizers v. State, AIR 1992 Guj 75 [LNIND 1990 GUJ 123] [LNIND 1990 GUJ 123] [LNIND 1990 GUJ 123]. 35 Delux Land Organizers v. State, AIR 1992 Guj 75 [LNIND 1990 GUJ 123] [LNIND 1990 GUJ 123] [LNIND 1990 GUJ 123]. 36 I. N. Saksena v. State of M.P., AIR 1967 SC 1264 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22]: 1967(2) LLJ 427 : 1967(2) SCR 496 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22]. 37 Life Insurance Corp. v. Escorts Ltd., AIR 1986 SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362]: (1986) 1 SCC 264. 38 Mohibali Roshanali Naser v. U.O.I., AIR 1989 Bom 237 [LNIND 1988 BOM 432] [LNIND 1988 BOM 432] [LNIND 1988 BOM 432]; JAIN, Cases, Chapter VII, 441. 39 See, infra, Chaptersxix, underdiscretionarypowers. 40 Ashwin Pimpalmar v. State of Maharashtra, (1991) Mhlj 1336 [LNIND 1991 BOM 471] [LNIND 1991 BOM 471] [LNIND 1991 BOM 471] : AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]: 1968(2) SCR 366. 41 U.O.I. v. Anglo-Afghan Agencies Ltd., AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]: 1968(2) SCR 366; Ashwin Pimpalwar v. State of Maharashtra, (1991) Mh.L.J. 1336; infra, note 190: JAIN Cases, 443. 42 Infra, Chapterxxii.under Promissory Estoppel. 43 AIR 1972 Guj 261; JAINCASES, 449. 44 Infra, Chapterxxiii 45 See, infra, Chapterxi. 46 Narendra Kumar v. U.O.I., AIR 1989 SC at 2182; JAIN. Cases. Chapter VII. 421. Also see, Ashwin Pimpalwar v. State of Maharashtra, (1991) Mh LJ 1336:JAIN, Cases, Chapter VII, 443. 47 Narendra Kumar v. U.O.I., AIR 1989 SC at 2182. 48 Criminal Injuries Compensation Board, exp. Lain, v. R. (1967) 2 QB 864; R. v. Criminal Injuries Comp. Board, exp. Sch of ield, (1971) 1 WLR 926. Also see, infra, under Judicial Control-Certiorari. 49 AIR 1993 SC 142 : 1993 Supp (1) SCC 708. 50 Balbir Singh v. State of Punjab, AIR 1975 P&H 83. 51 Harla v. State of Rajasthan, AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]: 1952 Crlj 54 : 1952 SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49]. 52 AIR 1975 P&H at 89. 53 (1974) XV Guj LR 7. 54 Sri R. K. Rice & Groundnuts Oil Mill v. State, AIR 1983 AP 383 [LNIND 1983 AP 195] [LNIND 1983 AP 195] [LNIND 1983 AP 195]; Raman and Raman v. State of Madras, AIR 1959 SC 694 [LNIND 1959 SC 20] [LNIND 1959 SC 20] [LNIND 1959 SC 20]: 1959 Supp (2) SCR 227. 55 AIR 1992 SC 763 : 1992 Supp (1) SCC 561.

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56 Prohibition & Excise Supdt. v. Toddy Tappers Co-operativeSociety, (2003) 12 SCC 738, 753 (para 24) : AIR 2004 SC 658 [LNIND 2003 SC 988] [LNIND 2003 SC 988] [LNIND 2003 SC 988], relyingon Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277] : 1979 SCC (Cri) 422 : AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]; Quarry Owners' Association v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] : AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]and High Court of Judicature for Rajasthan v. P.P.Singh, (2003) 4SCC 239 : 2003SCC(L&S) 424. 57 (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], 203 (para 21) : 1979 SCC (Cri) 422 : AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]. 58 (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], 210 (para 32) : 1979 SCC (Cri) 422 : AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]. 59 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], 691-92 (para 48) : AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 60 Quarry Owners' Association v. State of Bihar, (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], 696 (para 61 (d) ) : AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 61 Prohibition & Execise Supdt. v. Toddy Tappers' Cooperative Society, (2003) 12 SCC 738, 755 (para 28) : AIR 2004 SC 658 [LNIND 2003 SC 988] [LNIND 2003 SC 988] [LNIND 2003 SC 988]. 62 Quarry Owners' Association v. State of Bihar, (2000) 8SCC655, 695 (para58) : AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 63 (2001) 6 SCC 307 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459], 310 (para 8) : AIR 2001 SC 2512 [LNIND 2001 SC 1459] [LNIND 2001 SC 1459] [LNIND 2001 SC 1459]. 64 (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277] : 1979 SCC (Cri) 422: AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277]. 65 (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] : AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]. 66 (2003) 4 SCC 239 [LNIND 2003 SC 100] [LNIND 2003 SC 100] [LNIND 2003 SC 100], 255 (para 40) : 2003 SCC (L&S) 424. 67 1995Supp (3) SCC 456 : AIR 1996 SC 114 [LNIND 1995 SC 566] [LNIND 1995 SC 566] [LNIND 1995 SC 566]. 68 See, infra, Ram Jawaya v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]: 1955 (2) SCR 225, under Administrative Powers, Chapter XV. 69 See, Manna Lal v. State of Assam, AIR 1962 SC 386 [LNIND 1961 SC 320] [LNIND 1961 SC 320] [LNIND 1961 SC 320]: 1962(3) SCR 936. 70 A. Prabhakara Reddy v. State, AIR 1980 Kant 207. 71 Supra, Chapter v. 72 Supra, Chapter VI. 73 Supra, Chapter VI. 74 B. K. Garud v. Nasik Merchants Coop.Bank Ltd., AIR 1984 SC 192 [LNIND 1983 SC 323] [LNIND 1983 SC 323] [LNIND 1983 SC 323]: (1984) 2 SCC 50. 75 Co-operative Credit Bank v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152]: (1969) 2 SCC 43; JAIN, Cases, Chapter VII, 368. National I.C.C. Federation v. Delhi Administration, AIR 1971 Del 141 [LNIND 1970 DEL 44] [LNIND 1970 DEL 44] [LNIND 1970 DEL 44]; B. S. Co-op. Bank v. Registrar, Co-operative Societies, AIR 1975 Pat 187; Sri Konaseema Co-operative Central Bank Ltd., Amalapuram v. N. Seetharama Raju, AIR 1990 AP 171 [LNIND 1990 AP 64] [LNIND 1990 AP 64] [LNIND 1990 AP 64]. 76 AIR 1971 SC 166 [LNIND 1970 SC 451] [LNIND 1970 SC 451] [LNIND 1970 SC 451]: (1970) 3 SCC 168. 77 Co-operative Credit Bank v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152]: (1969) 2 SCC 43. 78 B. S. Minhas v. Statistical Institute, AIR 1984 SC 363 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC 421]: 1984 (1) LLJ 67 : (1983) 4 SCC 582 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC 421]. 79 See, infra, under Judicial Control.

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80 See, infra, Chapterxxiii, under Government Contracts.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER VIII-A INTERPRETATION

CHAPTER VIII-A INTERPRETATION A subordinate or delegated legislation must be read in a meaningful manner so as to give effect to the provisions of the statute. In selecting the true meaning of a word regard must be had to the consequences leading thereto. If two constructions are possible to adopt, a meaning which would make the provision workable and in consonance with the statutory scheme should be preferred.1 In case of lack of clarity, administrative instructions/circulars/orders/letters should be interpreted by taking into consideration their object and the intention of the Government.2 (a) Rules The Court is within its authority to make sense of an entry in the rules, manifestly erroneously printed, by ironing out its creases and the argument that the Court cannot presume that the legislature has made a mistake, is not applicable to subordinate legislation framed on delegation of power.3 The rules not only create a legal fiction but also provide the limitations in operation thereof. In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed.4 Reasonable and practical interpretation of the Rule instead of striking it down, should be preferred.5 Harmonious construction was applied to interpret the panchayat election rules.6 The Rules of statutory interpretation or the Rules of a subordinate legislation, including the Rules made under Art. 309 of the Constitution, do not empower any judicial or quasi-judicial body to apply the law to a situation or object which was not contemplated by the legislature while making a law, or by the Government while making the rule.7 (b) Amendment in regulation The amendments in the regulation must be construed in furtherance of the legislative policy and not in derogation thereof. But while doing so, the past experience of the state which paved the necessities for modifying the earlier regulation should not be forgotten.8 (c) Bye-laws In interpreting a bye-law it should be read as a whole and the intent of the rule making authority should be taken into consideration.9 (d) Scheme A scheme must be read and understood in its entirety in the given background and cannot be read as a statute.10

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(e) Title of enactment The words used in the title of enactment cannot be a conclusive fact to ascertain the legislative nature of such enactment.11 (f) G.O. The order of the Government should be construed keeping in view the purpose and substance as well as the object underlying the same, more with a view to promote the same rather than stifle it.12 A Govt. order (G.O.) cannot be interpreted in the light of a rule subsequently framed.13 (g) GOM Two conflicting interpretations were made of a GOM in two cases. Matter was referred to a larger Bench for resolution of the issue.14 (h) Notification A notification is to be interpreted taking into account the relevance of the background in which it was issued.15 Where the wording of a notification is clear, its plain language must be given effect to.16 In Commercial Tax Officer v. Biswanath Jhunjhunwala ,17 plain meaning rule was applied in interpreting a notification. The scope of the power delegated was inferred by the Apex Court from the notification itself.18 The Govt. of Rejasthan exercising the power under Section 4(2) of the Rajasthan Sales Tax Act 29 of 1954 by a notification exempted Papad and Badi, i.e., Mangori from sales tax. When the manufacturing concern applied for exemption of Gole Papad the Additional Commissioner held that Gole Papad was not covered by the notification but in appeal, the Sales Tax Tribunal held otherwise. In revision, the High Court held that it was not entitled for exemption. The Apex Court observed that when the notification mentions Papad and Badi, i.e., Mangori, it would appear that they did not intend to differentiate between gole papad or flat papad and upheld the decision of the Tribunal.19 (1) Date of operation A notification becomes operative and effective from the date of its publication in the Official Gazette. In the instant case, it was announced on radio and released in the press also on the very day of its issuance which confirmed its enforceability.20 (i) Note The note of rule, being a part thereof, has to be construed accordingly.21 (j) Marginal notes The marginal notes in a delegated/subordinate legislation though may not be determinative of the contents of the provision, it may be act as an intrinsic aid to the construction.22 (k) Circulars Where two circulars provided for fixation of seniority of the employees without taking into consideration their

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casual services, another issued to give effect to a judgment providing for the benefit of causal service rendered prior to regularisation, was held to be not to modify the earlier two circulars. In the instant case, denial of benefit of causal service was upheld.23 A circular was issued with retrospective effect giving benefit of revision of pay to those who had "superannuated" but expressly denying the benefit to those who had been discharged prior to the announcement of the revision. However, the circular neither expressly included nor excluded those from the benefit, who had opted the voluntary retirement scheme. The Supreme Court held that, though they were neither "superannuated" nor "discharged" and formed a different class, yet they would be deemed to be automatically excluded as they are bound by the terms of contract of voluntary retirement.24 (l) Circular in pursuance of S.C. decision The circular issued in pursuance of the Supreme Court decision cannot be construed regardless of that decision.25 (m) Government instructions Govt. instructions have to read in conformity with the provisions of the parent Act, here the Factories Act, 1948, Section 59 in connection with computation of bonus.26 (n) Administrative orders/Govt. resolutions Administrative orders/Govt. resolutions had to be interpreted on the basis of its contents and no other external aid (like an affidavit) was permissible for its interpretation.27 (o) Govt. letters Once the Government by its letter clarified that the land in question was to be transferred to its actual occupant, then there arose no question of interpreting the term "occupant" as meaning a de fure occupant. Even otherwise, the term means a person in actual possession.28 (p) Confidential letters A office clerk of the Railways was promoted as a Senior clerk whose services were quarterly reviewed for six times within a period of 18 months through confidential letters of the Railway Board informing him of his unsatisfactory performance. Consequently, he was reverted after officiating for 19 months instead of 18. It was contended that since he was reverted after 19 months, a department inquiry should have been held in absence of which the order of reversion was bad in law. The confidential letters stated that such a reversion without any disciplinary inquiry should be made within a period of 18 months after doing quarterly reviews. The Supreme Court observed that the order of reversion was really in continuation of and as a result of the periodic assessments of the performance of the employee during 18 months of his being appointed to officiate in a higher post and the fact that his performance was unsatisfactory was conveyed to him within that period. The Apex Court held that in the context of these facts, the confidential letters could not be construed as if they laid down a rigid statutory period. They were by way of guidelines to ensure that the power of reversion was exercised within a reasonable period. Hence, the order of reversion in the circumstances of the case was in substantial compliance of the directions. Merely because the actual order was issued late by one month would not vitiate the order.29 (q) Words/phrases The words "such as" occurring in the phrase of a G.O "crimes against woman such as Section 376 and

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354IPC while being sentenced to imprisonment for life" are merely illustrative and not exhaustive and any other interpretation would be causing violence to the language of the G.O.30 It was contended that clause 37 of the Letters Patent establishing the High Court of Bombay, which empowers the High Court to make rules and orders on its original side, is subject to the proviso "that the said High Court shall be guided in making such rules and orders as far as possible, by the provisions of the Code of Civil Procedure... ." It was contended that the words "as far as possible" are words of limitation and must be interpreted to mean that the rules made should be consistent with the provisions of CPC as amended from time to time. The Full Bench of the High Court of Calcutta in Manikchand Durgaprasad v. Pratabmull Rameswar 31 had occasion to consider this very contention with regard to clause 37 of the Letters Patent and observed: "The restriction upon the power of the Court as contained in the proviso to clause 37 of the Letters Patent is that the rules framed under that clause should, 'as far as possible' be in conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase 'as far as possible' indicates is merely directory. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under clause 37 of the Letters Patent. Consequently, if any rule framed by the High Court under clause 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil Procedure, the rule framed under clause 37 will prevail over the corresponding provisions of the Code of Civil Procedure."

The Supreme Court took it to be the correct view to be taken in interpreting the words 'as far as possible" in clause 37 of the Letters Patent. This interpretation would be consistent with the amplitude of the words used in Section 129CPC by which the High Court is empowered to make rules "not inconsistent with the Letters Patent to regulate its own procedure in the exercise of its original jurisdiction as it shall think fit."32 The use of expression "this shall remain in force until further orders", in the notification, only means that it can be changed or revised or amended or even withdrawn even in the middle of the year, before the expiry of the period. It did not mean that, when the period is expressly and specifically mentioned, it could be construed to mean that its life shall extend beyond the external termini mentioned in the order.33 (r) Retrospectivity/retroactivity Rule 80(5)(ii) (as amended in 1974) of the Bengal Sales Tax Rules, 1941 extended the time-limit for suo motu revision of assessment, provided the assessment was not made more than six years previously. The supreme Court held that the said rule was applicable not only to incomplete assessments but also to assessments which had attained finality by reason of the expiry of the original time-limit before the said amendment.34 The Supreme Court upheld the relaxation of rules for promotion of an employee belonging to scheduled caste with retrospective effect under Rule 47 of the A.P. State and Subordinate Services Rules, 1963.35

1 Ramesh Mehta v. Sanwal Chand Singhvi, (2004) 5 SCC 409 [LNIND 2004 SC 529] [LNIND 2004 SC 529] [LNIND 2004 SC 529], 426-27 (paras 31-33), relying on R. v. Secy. of State for the Home Deptt. ex p. Venables, 1998 AC 407 : (1997) 1 All ER 327 (CA); Deepak Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC 385 [LNIND 2004 SC 358] [LNIND 2004 SC 358] [LNIND 2004 SC 358] : (2004) 3 Scale 546 [LNIND 2004 SC 358] [LNIND 2004 SC 358] [LNIND 2004 SC 358]. 2 State of Maharashtra v. Vijay Vasantrao Deshpande, (1998) 7 SCC 81, 83 (para 5). 3 Gujarat Composite Ltd. v. Ranip Nagarpalika, (1999) 8 SCC 675 [LNIND 1999 SC 1791] [LNIND 1999 SC 1791] [LNIND 1999 SC 1791], 678 (para 10). 4 State of A.P. v. A.P. Pensioners' Association, (2005) 13 SCC 161 [LNIND 2005 SC 897] [LNIND 2005 SC 897] [LNIND 2005 SC 897], 169 (para 30), relying on State Govt. Pensioners' Assn. v. State of A.P., (1986) 3 SCC 501 [LNIND 1986 SC 235] [LNIND 1986 SC 235] [LNIND 1986 SC 235]; Union of India v. All India Services Pensioners' Assn., (1988) 2 SCC 580 [LNIND 1988 SC 26] [LNIND 1988 SC 26] [LNIND 1988 SC 26]; State of U.P. v. U.P. University Colleges Pensioners' Assn., (1994) 2 SCC 729; State of Punjab v. Boota Singh, (2000) 3 SCC 733; State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 [LNIND 2005 SC 610] [LNIND 2005 SC 610] [LNIND 2005 SC 610]. 5 Ahmedabad Municipal Corporation v. Nilaybhai R. Thakore, (1999) 8 SCC 139 [LNIND 1999 SC 1525] [LNIND 1999 SC 1525] [LNIND 1999 SC 1525] : JT 1999 (8) SC 244 [LNIND 1999 SC 1525] [LNIND 1999 SC 1525] [LNIND 1999 SC 1525].

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6 Vadivelu v. Sundaram, (2000) 8 SCC 355 [LNIND 2000 SC 1330] [LNIND 2000 SC 1330] [LNIND 2000 SC 1330], 367 (para 25). 7 B.N. Sinha v. Union of India, AIR 1998 SC 2600 : (1998) 3 SCC 157. 8 Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 486-87 (para 10). 9 H.P.M.C. v. Suman Behari Sharma, (1996) 4 SCC 584 [LNIND 1996 SC 706] [LNIND 1996 SC 706] [LNIND 1996 SC 706], 588 (para 8). 10 Siri Ram Batra v. Financial Commissioner, (2004) 12 SCC 52 [LNIND 2004 SC 942] [LNIND 2004 SC 942] [LNIND 2004 SC 942], 57 (para 12), per PATIL J. 11 State of W.B. v. Madan Mohan Ghosh, (2002) 9 SCC 177 [LNIND 2002 SC 351] [LNIND 2002 SC 351] [LNIND 2002 SC 351], 182 (para 9). 12 Gayatri Devi Pansari v. State of Orissa, (2000) 4 SCC 221 [LNIND 2000 SC 645] [LNIND 2000 SC 645] [LNIND 2000 SC 645], 226 (para 10). 13 C. Krishna Gowda v. State of Karnataka, (1998) 2 SCC 615 [LNIND 1998 SC 125] [LNIND 1998 SC 125] [LNIND 1998 SC 125], 623 (para 15). 14 State of A.P v. Obulu Reddy, (1999) 9 SCC 568, 571 (para 6). 15 Southern Agrifurane Industries Ltd. v. Commercial Tax Officer, (2005) 2 SCC 575 [LNIND 2005 SC 122] [LNIND 2005 SC 122] [LNIND 2005 SC 122], 583 (para 23). 16 Excon Building Material Mfg. Co. (P.) Ltd. v. CCE, (2005) 11 SCC 416, 418 (para 7). 17 1996) 5 SCC 626 [LNIND 1996 SC 1343] [LNIND 1996 SC 1343] [LNIND 1996 SC 1343], 632 (para 13). 18 Lakhpat Rai Juneja v. Union of India, (2000) 3 SCC 75 [LNIND 2000 SC 360] [LNIND 2000 SC 360] [LNIND 2000 SC 360], 79 (para 7). 19 Shiv Shakti Gold Finger v. Asstt. Commissioner, Commercial Taxes, (1996) 9 SCC 514, 515 (para 2 and 3). 20 I.T.C. Ltd. v. Collector of Central Excise, (1996) 5 SCC 538 [LNIND 1996 SC 1331] [LNIND 1996 SC 1331] [LNIND 1996 SC 1331] (paras 1 and 2), following Pankaj Jain Agencies v. U.O.I., (1994) 5 SCC 198 [LNIND 1994 SC 595] [LNIND 1994 SC 595] [LNIND 1994 SC 595]. 21 Samurai Electronics Pvt. Ltd. v. Municipal Council, (1998) 2 SCC 707, 708 (para 2). See also Tata Iron & Steel Co. Ltd., v. Commissioner of Central Excise & Customs, (2000) 3 SCC 472 [LNIND 2000 SC 322] [LNIND 2000 SC 322] [LNIND 2000 SC 322], 482 (para 17). 22 Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group, (2006) 3 SCC 434 [LNIND 2006 SC 164] [LNIND 2006 SC 164] [LNIND 2006 SC 164], 498 (para 156), relying on Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 (para 36) : AIR 1978 SC 1025 (para 33). 23 K. Trimurthulu v. M.V.N. Murthy, (1998) 9 SCC 571 [LNIND 1998 SC 187] [LNIND 1998 SC 187] [LNIND 1998 SC 187], 572-3 (paras 6-8). 24 HEC Voluntary Retd. Employees Welfare Society v. Heavy Engineering Corporation Ltd., (2006) 3 SCC 708 [LNIND 2006 SC 139] [LNIND 2006 SC 139] [LNIND 2006 SC 139], 716-17 (paras 18, 19 and 22). 25 Mohd. Ghani v. National Geophysical Research Institute, (1998) 8 SCC 458, 459 (para 8), relying on Surinder Singh v. Engineer-in-Chief, CPWD, (1986) 1 SCC 639 [LNIND 1986 SC 16] [LNIND 1986 SC 16] [LNIND 1986 SC 16]. 26 Union of India v. Suresh C. Baskey, (1996) 11 SCC 701 [LNIND 1995 SC 1105] [LNIND 1995 SC 1105] [LNIND 1995 SC 1105], 705 (paras 10 and 11). 27 Sisir Kumar Mohanty v. State of Orissa, (2002) 9 SCC 219 [LNIND 2002 SC 393] [LNIND 2002 SC 393] [LNIND 2002 SC 393]. 28 Ramesh Kumar Satish Kumar v. Guru Singh Sabha (Regd.), (2001) 9 SCC 61 [LNIND 2001 SC 252] [LNIND 2001 SC 252] [LNIND 2001 SC 252], 63 (para 10), relying on Amba Prasad v. Mahboob Ali Shah, AIR 1965 SC 54 : (1964) 7 SCR 800 and Industrial Supplies (P.) Ltd. v. U.O.I., (1980) 4 SCC 341 [LNIND 1980 SC 320] [LNIND 1980 SC 320] [LNIND 1980 SC 320]. 29 Union of India v. Arjun Singh, (1998) 8 SCC 390, 392 (para 5). 30 Sanaboina Satyanarayana v. Govt. of A.P., (2003) 10 SCC 78 [LNIND 2003 SC 593] [LNIND 2003 SC 593] [LNIND 2003 SC 593], 83 (para 8).

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31 AIR 1961 Cal 483 [LNIND 1961 CAL 26] [LNIND 1961 CAL 26] [LNIND 1961 CAL 26], 489 (FB) (para 13). 32 Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145 [LNIND 2005 SC 15] [LNIND 2005 SC 15] [LNIND 2005 SC 15], 161 (paras 43 and 44). 33 Jayshree Chemicals v. Orissa State Electricity Board, (2004) 3 SCC 674 [LNIND 2004 SC 162] [LNIND 2004 SC 162] [LNIND 2004 SC 162], 679-81 (para 11). 34 Commercial Tax Officer v. Biswanath Jhunjhunwala, (1996) 5 SCC 626 [LNIND 1996 SC 1343] [LNIND 1996 SC 1343] [LNIND 1996 SC 1343], 632 (para 13). 35 M. Venkateswarlu v. Govt. of A.P., (1996) 5 SCC 167 [LNIND 1996 SC 546] [LNIND 1996 SC 546] [LNIND 1996 SC 546], 172 (para 8)following Govt. of A.P. v. D. Janardhana Rao, (1976) 4 SCC 226 [LNIND 1976 SC 354] [LNIND 1976 SC 354] [LNIND 1976 SC 354].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER IX RIGHT TO HEARING: WHEN CAN IT BE CLAIMED

CHAPTER IX RIGHT TO HEARING: WHEN CAN IT BE CLAIMED In its broadest sense natural justice may mean simply 'the natural sense of what is right and wrong' and even in its technical sense it is now often equated with 'fairness'.1 By developing the principles of natural justice the Courts have devised a kind of Code of fair administrative procedure. Just as they can control the substance of what public authorities do by means of the rules relating to reasonableness, improper purposes, and so forth, so through the principles of natural justice they can control the procedure by which they do it. It may seem less obvious that they are entitled to take this further step, thereby imposing a particular procedural technique on Government departments and statutory authorities generally. Yet in doing so they have provided doctrines which are an essential part of any system of administrative justice.2 1. NATURAL JUSTICE: NEED FOR Having considered the legislative powers exercised by the Administration, we now move on to the realm of its non-legislative powers. In this area, an important concept is that of natural justice or right to fair hearing. Natural justice, or fair administrative procedure, as it is presently characterised,3 is regarded as an important procedural safeguard against an undue exercise of such powers by the Administration. The rules of natural justice have assumed so much significance in modern administrative process that the Supreme Court has recently characterised them as "foundational and fundamental concepts" which are "part of the legal and judicial procedures."4 Natural justice comprises of two components. One is hearing, or the doctrine of audi alteram partem, which means 'listen to the other side'. The other is the doctrine of bias. Both are at times included in the term fair hearing. Natural justice is mainly a procedural concept. The whole edifice is built upon the well known adage that no one should be condemned unheard. It is regarded as a fundamental principle of civilized jurisprudence that a person against whom some action is proposed to be taken, or whose right or interest is going to be affected adversely, ought to be given a reasonable opportunity to defend himself. Natural justice is regarded as a very good instrument to promote the interests of the individual. The concept of natural justice is of very old vintage; it traces its ancestry to ancient civilizations and centuries long past. Until about two centuries ago, the term natural justice was often used interchangeably with natural law.5 In its modern version, natural justice is a limited concept, confined as it is to the idea of fair hearing procedure. With a view to provide some procedural safe-guards to such persons as may be affected by adverse actions or decision of the Administration, the courts have adopted

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this concept in Administrative Law. In the modern welfare state era, as already stated,6 the Administration has come to enjoy vast powers, without much substantive safeguards, to interfere with the person and property of people. There is no hope that the powers of the Administration would diminish in the near future. In such a context, it becomes a matter of prime importance to ensure that the Administration exercises its powers properly and after taking into account all relevant factors. It is felt that some protection to the people's rights may be found in making bureaucracy follow due procedures in discharging its functions. The theory is that if administrators are compelled to act in the right manner, they may generally do the right thing and come to right decisions. Procedural fairness is thus regarded as an integral element of administrative process. In such a context, right to be heard of an affected person becomes an important safeguard against any abuse, or arbitrary or wrong use, of its powers by the Administration. The concerned person can place before the decision-maker his version of facts and arguments pertaining to the controversy at hand. In a dispute between a person and an authority, there may be involved certain facts pertaining to the concerned person which may be susceptible of proving or disproving by him alone and it thus becomes necessary to give him a hearing in order to enable him to do so. The chances of an authority reaching a decision in ignorance of the facts and other relevant circumstances are reduced as hearing given to the person concerned will bring out all the relevant facts and issues involved in the dispute. It is believed that if the decision-making authority is apprised of all relevant facts and issues involved in a dispute, it will come to a right decision, for it will be difficult for the authority, unless it is completely perverse, to take a decision ignoring the material on record. Thus, giving hearing to a person before taking a decision affecting him, leads to good decisions by the Administration. This also furthers legitimate state purposes by insuring the government against committing elementary blunders in decision-making due to ignorance which may mar its image as a just government. It is emphasized that it is much more important to reach good and just administrative decisions at the very outset rather than bad decisions be upset later on which injures the reputation of the government and harms the interests of the affected person. Herein lies the significance of natural justice; it helps the Administration reach good decisions. Thus, natural justice is not only a canon of good legal procedure but also a canon of good administration. Natural justice also gives a sense of participation to the concerned persons in administrative decision-making which can by itself be justified as a democratic value. Such a participation may help in making decisions acceptable to the concerned persons. Finally, natural justice also serves as a means of making agencies accountable. When hearing has been given to the affected person, the courts are in a better position to review administrative action.7 As will be explained later, according to the prevailing principles of judicial review of administrative action, courts have far greater control over administrative action involving a hearing than they have otherwise. The procedure of hearing gives an additional dimension to judicial review over administrative action and, thus, a much more effective control-mechanism comes into effect. With such substantial advantages accruing out of giving hearing to the person affected, one would have thought that hearing will be the normal rule in modern administrative process, and non-hearing only an exception. Though progressively such an ideal is being achieved, it has not been achieved fully as yet. While the range of occasions when persons are held entitled to hearing has been expanding during the last twenty-five years, the hearing procedure is not universal yet. There are still functions designated as 'administrative' where no hearing is available.8 Two main questions arise in this area at the present time: (1) the question of entitlement to hearing: what are the kinds of decisions or actions by the Administration for which one can claim hearing? (2) What are the procedural elements of natural justice which a decision-making authority is required to follow, and what procedural rights a person has, before any adverse decision is taken against him?9 A very complicated and perplexing question of modern Administrative Law is that of entitlement to natural justice: when can a person against whom an administrative action is proposed to be taken claim a hearing by the concerned authority ? In what types of actions or decisions is the Administration obligated to give a hearing to the affected person? This is the threshold question: one reaches the second question only after crossing the first hurdle. A large volume of case-law has been generated around this single theme and still cases continue to arise. This question is considered in this Chapter; the second question is considered in the next Chapter. In Courts of law and in statutory tribunals it can be taken for granted that these rules must be observed. But

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so universal are they, so 'natural', that they are not confined to judicial power. They apply equally to administrative power, and sometimes also to powers created by contract.10 Principles of natural justice are required to be observed by a Court or tribunal before a decision is rendered involving civil consequences. They may only in certain situations be read into Article 14 of the Constitution of India when an order is made in violation of the rules of natural justice. Principles of natural justice, however, cannot be stretched too far. Their application may be subject to the provisions of a statute or statutory rule. Before a contemner is punished for contempt, the Court is bound to give an opportunity of hearing to him. Even such an opportunity of hearing is necessary in a proceeding under Section 345 of the Code of Criminal Procedure. But if a law which is otherwise valid provides for the consequences of such a finding, the same by itself would not be violative of Article 14 of the Constitution of India inasmuch as only because another opportunity of hearing to a person, where a penalty is provided for as a logical consequence thereof, has been provided for. Even under the penal laws some offences carry minimum sentence. The gravity of such offences, thus, is recognised by the legislature. The Courts do not have any role to play in such a matter.11 Rule 11 framed by the Kerala High Court is legislative in character. As validity of the said rule has been upheld, it cannot be said that the same by itself, having not provided for a further opportunity of hearing the contemner, would attract the wrath of Article 14 of the Constitution of India.12 In Mohinder Singh Gill v. Chief Election Commr.,13 the Supreme Court observed: " 43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam--and of Kautilya's Arthasastra--the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

In N.K. Prasada v. Govt. of India,14 this Court observed: " 24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta15 of which two of us (V.N. Khare, C.J. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held: ' 29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby.' 25. The principles of natural justice, it is well settled, must not be stretched too far."

In Union of India v. Tulsiram Patel,16 whereupon reliance has been placed by Mr. Reddy, the Supreme Court held: " 97. Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteram partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed."

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The principles of natural justice are applicable to administrative law and public law. They have no place when one is considering the legality of an award made by an arbitrator with the consent of the parties.17 When Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 says the Debts Recovery Tribunal shall not be found by the procedure laid down by the CPC, 1908, it does not mean that it will not have jurisdiction to exercise power of a Court as contained in the CPC. Rather, the Tribunal can travel beyond the CPC and the only fetter that is put on its powers is to observe the principles of natural justice.18 2. BASIS TO CLAIM RIGHT OF HEARING Courts are frequently called upon to decide whether or not, in a particular situation, a person affected by an administrative action deserves a hearing or not. Such a person can claim the right of being heard from one of the four sources as follows: (1)

(2)

(3)

The requirement of hearing may be spelt out of certain fundamental rights guaranteed by the Constitution. For example, Art. 19 guarantees seven freedoms to citizens of India but permits the State to impose reasonable restrictions on these rights. It has been held that such a law has to be reasonable both in its substantive as well as procedural aspects. The Courts insist on varied procedural safeguards in different situations including even a right of hearing in some situations.19 The most significant constitutional provision from this point of view however is Art. 14, reference to which has already been made earlier.20 Art. 14 guarantees equality before law. According to the Supreme Court, in some situations, denial of hearing to an affected person may amount to denial of equality before law which may amount to an infringement of Art. 14. The Supreme Court has observed recently: " Audi alteram partem is a part of Art. 14 of the constitution."21 The syllogism runs thus: "Violation of natural justice results in arbitrariness which is same as discrimination which is violation of Art. 14"; therefore, violation of natural justice is tantamount to violation of Art. 14. But, the real situation is that natural justice is much more general a concept and need not be confined to Art. 14. The Supreme Court has observed in Tulsiram: "The principles of natural justice are not the creation of Art. 14. Art. 14 is not their begetter but their constitutional guardian... Art. 14... is not the sole repository of the principles of natural justice".22 However, Art. 14 has become a kind of a reservoir from which norms of fair procedure can be derived in many situations. The matter has been considered at some length in a later Chapter.23 The parent statute under which the Administration proposes to take an action against a person may itself impose expressly the requirement of hearing. For example, Art. 311 of the Constitution lays down that no civil servant shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the proposed action. The 'reasonable opportunity' ordained here demands a hearing according to the norms of natural justice.24 Similarly, an inquiry into the affairs of a company under S. 15 of the Industries (Development and Regulation) Act, 1951, read with the relevant rules, has been held to be of a quasi-judicial nature.25 Under S. Section 57 of the Motor Vehicles Act, 1939, the transport authority was required to dispose of applications for grant of permits for state carriages at a public hearing.26 S. 60 of the same Act laid down in a mandatory form that no permit would be cancelled unless an opportunity had been given to the holder of the permit to furnish his explanation.27 The statutes use varied formulae for the purpose, e.g., "giving of an opportunity of being heard", "giving reasonable opportunity to show cause", "giving of an opportunity of making representation or filing objections" against the proposed action, or the authority should "make such inquiry as it may deem fit" before taking a decision. In most of these cases, the courts insist that, to the extent possible, the principles of natural justice ought to be applied.28 A statutory provision authorised the concerned tribunal to dismiss or remove a servant of a panchayat samiti after "making such inquiry as it may deem fit" in his conduct. The Supreme Court ruled that the inquiry envisaged by the statutory provision must be held according to the

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(4)

norms of natural justice.29 A statutory provision envisaging hearing is regarded as mandatory in nature. In CATA,30 the power of revision was vested in the government over an order made by the Registrar, Co-operative Societies. A statutory provision stated that the government could pass no order prejudicial to any party unless he had been given an opportunity of making his representation. The Supreme Court invalidated a government order passed without affording to the concerned society an opportunity of making representation. Minimum requirement of natural justice was ingrained in the provision which could on no account be dispensed with. But there may be a case where the court may interpret a statutory provision as not implying natural justice. Under the M.P. Cinemas (Regulation) Act, 1952, and the rules made thereunder, before granting a cinema licence, the licensing authority is to invite objections from the public. The Supreme Court has ruled that if the objections have been invited and taken into consideration by the concerned authority and a cinema licence issued thereafter, the matter ends there. The objectors can claim no further right of being heard.31 A significant but complicated problem arises when the right of hearing is claimed in the residuary area, under the general or common law. This constitutes a very large chunk of modern administrative process because not many statutes specifically impose the requirement of hearing, and the scope of fundamental rights is restricted, for example, a fundamental right does not bind a body which does not fall within the definition of 'state' in Art. 12.32 The following discussion in this Chapter by and large pertains to this important area.

In order to impose some procedural safeguards, the courts imply natural justice in many situations even when the parent status is silent on this point. The courts take the position that omission to impose the hearing requirement in the statute under which the impugned action is being taken by the Administration does not exclude hearing; it may be implied from the nature of the power. The courts justify such an approach by resorting to the fiction that what they are doing is merely to supply the omission of the legislature. Had the legislature thought about the matter, it would have itself provided for the hearing procedure. This point was brought out clearly by Byles, J. in Cooper:33 "...although there are no positive words in statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature." Similarly, in India, the Supreme Court has said: "The silence of a statute has no exclusionary effect except where it flows from necessary implication".34. The truth however remains that the right to natural justice, and now to procedural fairness, has been part of "a judicially-developed, unwritten constitution" which applies except in case of direct legislative negation or abrogation or implied exclusion.35. 3. QUASI-JUDICIAL: NATURAL JUSTICE A judicial decision consists of finding facts and applying law whereas a quasi-judicial decision consists of finding facts and applying administrative policy.36 The term ' quasi-judicial accordingly came into vogue, as an epithet for powers which, though administrative, were required to be exercised as if they were judicial, i.e. in accordance with natural justice.37 A major question before the courts has been as to when can a person claim the right to be heard when the statute is silent on the point. There is no ready made formula to answer this question; each case has to be decided on its merits. Over a period of time, certain judicial trends have emerged which are noted below, but it is ultimately for the court to decide whether in a given situation, the concerned person is entitled to a hearing or not. It needs to be emphasized that in this area, the courts have to display a creative genius for, if they read statutory provisions merely literally, then not many persons would be able to claim natural justice. To begin with, the courts took recourse to the model of a judicial proceeding. Hearing before a decision is the sine qua non of such a proceeding. Therefore, to superimpose the requirement of hearing in an administrative proceeding, the courts would characterise it as quasi-judicial. Quasi-judicial thus came to be linked with natural justice; both of them became concomitant concepts. If a proceeding before an administrator is regarded as quasi-judicial, giving a hearing to the concerned person becomes inevitable. On the other hand, if a function is characterised as administrative, it can be discharged without giving a hearing to the affected person. But this gives rise to another intricate question: what is quasi-judicial ? An answer to this question is not easy as no articulate test has been developed to distinguish quasi-judicial from

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administrative. The adjective ' quasi' before 'judicial' indicates that the proceeding in question is somewhat similar to, but is not exactly, judicial in nature. Many a time, the courts may characterise a function or proceeding as quasi-judicial because of its tendency to affect a person adversely even though no judicial element may be discernible therein.38 A general test sometimes adopted for the purpose is that "any person or body having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially" acts in a quasi-judicial manner.39 But it is not clearly defined as to what is meant by "acting judicially". This proposition is vague in the extreme; it is even a tautology to say that the function is ' quasi-judicial' if it is to be done 'judicially'. How is one to ascertain whether an authority is required to act judicially or not ? The statutes hardly ever say in so many words that the authority acting under it is to act judicially. In the absence of any such explicit indication in a statute, it becomes a matter of implication or inference for the courts to decide, after reading a statute, whether the concerned authority is to act 'judicially' or not. The courts make the necessary inference from "the cumulative effect of the nature of the right affected, the manner of the disposal provided, the objective criteria to be adopted, the phraseology used, the nature of the power conferred, of the duty imposed on the authority and the other indicia afforded by the statute." This prima facie is too broad a generalization which is hardly adequate or articulate to predicate the nature of a function or a body with any certainty. The personality of a judge could make a 'substantial difference in the end-result, for one judge may be more inclined to lean towards a quasi-judicial approach by the Administration in a particular context than another judge. "A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. A typical example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objections and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is therefore an administrative decision which is subject to some measure of judicial procedure."40

Normally, the instructions issued by the superior authorities on the administrative side cannot fetter the exercise of quasi-judicial power and the statutory authority invested with such power has to act independently in arriving at a decision under the Act. However, it is not open to the adjudicating authority to deviate from those orders or instructions which the statute enjoins that it should follow. Any order passed in contravention of them would be liable to be struck down on that very ground.41 Relying on its earlier decisions, the Supreme Court, in Radheshyam Khare v. State of M.P.,42 held: "It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a Court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin, L.J. (in R.V. Electricity Commissioners).43"

The dictionary meaning of the word quasi is "not exactly" and it is just in between a judicial and administrative function. It is true, in many cases, the statutory authorities were held to be quasi-judicial authorities and decisions rendered by them were regarded as quasi-judicial, where there was contest between the two contending parties and the statutory authority was required to adjudicate upon the rights of the parties.44 In Cooper v. Wilson,45 it is stated that "the definition of a quasi-judicial decision clearly suggests that there must be two or more contending parties and an outside authority to decide those disputes." In view of the aforesaid statement of law, where there are two or more parties contesting each other's claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority was held to be quasi-judicial and decision rendered by it as a quasi-judicial order. Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is quasi-judicial authority.

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But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-judicial decision when such a statutory authority is required to act judicially. In R. v. Dublin Corpn.,46 it was held thus: "In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, makes estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequence would be judicial acts."

Atkin, L.J. as he then was, in R. v. Electricity Commrs.47 stated that when any body of persons has legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, such body of persons is a quasi-judicial body and decision given by them is a quasi-judicial decision. In the said decision, there was no contest or lis between the two contending parties before the Commissioner. The Commissioner, after making an enquiry and hearing the objections was required to pass order. In a nutshell, what was held in the aforesaid decision was, where a statutory authority is empowered to take a decision which affects the rights of persons and such an authority is under the relevant law required to make an enquiry and hear the parties, such authority is quasi-judicial and decision rendered by it is a quasi-judicial act. In Province of Bombay v. Khushaldas S. Advani,48 it was held thus: "(i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is a lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially."

The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these: Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial.49

Applying the aforesaid principle, the Supreme Court was of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially.50 In the instant case, from the provisions, of the Section 29-A of the Representation of the People Act, 1951, it is manifest that the Election Commission is required to consider the matter, to give opportunity to the representative of the political party and after making enquiry and further enquiry arrive at the decision whether to register a political party or not. In view of the requirement of law that the Commission is to give decision only after making an enquiry, wherein an opportunity of hearing is to be given to the representatives of the political party, we are of the view that the Election Commission under Section 29-A is required to act judicially and in that view of the matter the act of the Commission is quasi-judicial. The matter of

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deregistration of a political party, in the instant case, may be examined from another angle i.e. if the directions of the High Court for considering the complaint of the respondent that some of the appellant political parties are not functioning in conformity with the provisions of Section 29-A is to be implemented, the result will be that a detailed enquiry has to be conducted where evidence may have to be adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise. Then there would be two contending parties opposed to each other and the Commission has to decide the matter of deregistration of a political party. In such a situation the proceedings before the Commission would partake the character of quasi-judicial proceeding.51 In exercising the power of review under Section 25-0 of the Industrial Disputes Act, 1947 as substituted by Act 46 of 1982, the appropriate Government would have to make an enquiry into all necessary facts, particularly into the genuineness and adequacy of reasons stated by the employer. A opportunity of being heard would have to be given to the employer, workmen and all interested persons. The order on review would have to be in writing giving reasons. Thus, in exercising powers of review, the appropriate Government would be performing quasi-judicial functions.52 Quasi-judicial acts are such acts which mandate an officer the duty of looking into certain facts not in a way which it specially directs but after a discretion, in its nature judicial. The exercise of power by such tribunal or authority contemplates the adjudication of rival claims of the persons by an act of the mind or judgment upon the proposed course of official action as to an object of the corporate power, for the consequences of which the official will not be liable, although his act was not well judged. A quasi-judicial function has been termed to be one which stands midway a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi-judicial one, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in the affirmative, the authority would be deemed to be quasi-judicial, and if the reply is in the negative, it would not be. The dictionary meaning of the word " quasi" is "not exactly." It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all.53 In the instant case54 the order appointing the Pricing Committee which was amended on 26-11-1986 specifically provided: "The aforesaid Pricing Committee was established to determine (not merely to advise on) the price and terms and conditions for the supply of resin, resin blazes, standing trees and other foreign produce to be handed over by the H.P. Forest Department to the H.P. State Forest Corporation Ltd. from time to time."

Apply the tests stated above, it cannot be said by any stretch of imagination that the said Pricing Committee was or intended to be a quasi-judicial tribunal and hence its decisions were applicable to the parties to the said Committee and not to any third person. The Committee being non-statutory, its decisions could not be given effect to.55 A quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter-affidavit or oral arguments before the Court.56 By virtue of Section 9 of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, a scheme came to be framed called "The Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985." As per the Scheme, certain Deputy Commissioners came to be appointed under Section 6 of the Act. Under para 5(3) of the Scheme, if the Dy. Commissioner was of the opinion that the claim fell in a category different from the category mentioned by the claimant, he might decide the appropriate category after giving opportunity to the claimant. This power of the Dy. Commission is quasi-judicial and not administrative.57 An order imposing penalty for failure to carry out the statutory obligation is the result of a quasi-criminal proceeding.58 The custodian under the J&K State Evacuees' (Administration of Property) Act, 2006 does not perform only judicial or quasi-judicial functions but is also entrusted with the administration of the property.59 When the Excise Commissioner exercises power under Section 67-F of the Kerala Abkari Act, 1 of 1077 to decide whether he would exercise his suo motu revisional power or not, no lis between the parties can be said to be pending. At that stage, he would not be exercising any quasi-judicial powers.60 The Appellate Tribunal constituted under Section 5-D of the Cinematograph Act, 1952 is a quasi-judicial body.61 Where one of the parties applied to the Chief Justice for the transfer of a writ petition from Lucknow Bench to Allahabad and the Chief Justice heard the parties and by a detailed and reasoned order directed such transfer. It was

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held that in the circumstances of the case there was no doubt that the order of C.J. was, if not judicial, at least quasi-judicial.62 A quasi- judicial authority must pose into itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer.63 (a) Lis Inter Partes It is usual to characterise a function as quasi-judicial when there is lis interpartes, and an administrative authority is required to adjudicate upon the lis, that is, a situation involving two or more parties putting forth claims inconsistent with each other, and an adjudicatory authority deciding the matter. Prima facie, in such cases the authority will be regarded as acting in a quasi-judicial manner. This is on the analogy of courts whose function is to decide disputes between the litigants. The situation envisaged here is something like a triangle, two contestants claiming against each other and an authority adjudicating upon the dispute. Ordinarily, such disputes are decided by the courts, but due to some reasons, some such disputes are taken out of the judicial purview and handed over to tribunals or other adjudicatory bodies for deciding. The reasons for this development and some of the existing adjudicatory bodies deciding disputes between two or more private parties have been discussed in a later Chapter.64 To mention some examples of the function being held quasi-judicial where lis inter partes is present are: Industrial Tribunals under the Industrial Disputes Act, 1947;65 the licensing tribunals under the Motor Vehicles Act, 1939 or 1988 .66 S. 68-C of the Motor Vehicles Act, 1939, provided that when a state transport undertaking was of the opinion that for providing an "efficient, adequate, economical and properly co-ordinated" road transport service, it was necessary in public interest that road transport should be run by the undertaking to the exclusion wholly or partially of other persons, it could prepare a scheme and publish the same in the official gazette. Any person affected by the scheme could file objections before the State Government which, after considering the same and after giving an opportunity to the objectors as well as the undertaking to be heard in the matter, could approve or modify the scheme. By majority the Supreme Court ruled that the hearing prescribed by the statute was to be of the quasi-judicial type, as there was a contest, a lis, between the undertaking and the objectors insofar as the proposed scheme could affect the proprietary rights of the objectors.67 Thus, there was a triangular type situation- proposal by the undertaking, opposition by the objectors, and decision by the government. Wanchoo, J., in his dissenting opinion, however, denied that there was lis between the objectors and the undertaking. In his view, the question for consideration before the State Government was not whether private citizens should or should not be allowed to provide transport, but whether the proposed scheme was adequate, economical etc. Sinha, C.J., in his dissenting opinion, gave several reasons for his view that the function discharged by the government was administrative and not quasi-judicial in nature. First, no objective tests had been laid down for the consideration of the government; such terms as 'efficient', 'adequate', 'public interest', were matters of opinion and policy. Second, the idea of hearing prescribed by the statute was not to invite claims by individual operators, but to collect information having a bearing on the soundness and feasibility of the scheme. Third, the government was as much interested in the scheme as the undertaking which was the creature and limb of the government and, therefore, there was no question of the government functioning as an adjudicating authority between the two rival claimants. But the majority view has prevailed even in subsequent cases.68. In Harinagar Sugar Mills v. Shyam Sunder,69 was involved the question of the character of the power of the Central Government under S. Section 111 of the Companies Act, 1956. The articles of association of a company provided that the directors would have absolute discretion to refuse to register transfer of shares without giving any reason, but a person aggrieved by the directors' decision could appeal to the Central Government. In the opinion of the Supreme Court, the power exercised by the Central Government was quasi- judicial in nature, for the Government had to decide the dispute between a shareholder and the company. The decision of the Government was not to be based on expediency or subjective satisfaction of the Government but on the ground whether the directors were acting oppressively, capriciously, corruptly, or mala fide as against the shareholder concerned.70 In Shankerlal v. Shankerlal71 was involved the question of the nature of the function of a High Court judge in the matter of confirmation, sought at the instance of a liquidator, of an auction sale by a company during the

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winding up proceedings. The Court suggested that merely because the power was exercised by a judge was not decisive of the question whether his act was administrative or quasi-judicial. In the instant case, however, the function was held to be quasi-judicial on the basis that there was a lis between the auction-purchasers and the company's creditors. At times, concurrence of an administrative authority may be required with regard to various matters pertaining to settlement of disputes between two parties. Such a function of the concerned authority may be deemed to be quasi-judicial. In Associated Cement Companies v. P.N. Sharma,72 the function of the State Government in appeal from the order of the labour commissioner, which was the original authority to give concurrence to the imposition of a punishment by the management on a welfare officer employed by the company, and which was required to give an opportunity to the concerned welfare officer of showing cause against the proposed action, was held to be quasi-judicial as there was lis interpartes. The fact however remains that now-a-days the concept of lis is rarely invoked to claim hearing as the vista of the right of hearing has expanded a great deal in course of time as is discussed below.73 (b) Authority v. A Person A much more difficult question of characterisation of function arises when an authority is called upon to decide a matter not between two or more contestants, but between itself as one party, and another person as the other party. This is not a tri-partite situation but a bilateral one. This is the most common situation which occurs today in the administrative process and most of the discussion which follows pertains to this situation. In a situation where an authority itself sits as a decision-maker in a dispute between itself and a private person, it may not always be easy to decide in a particular factual situation whether the authority concerned ought to give a hearing or not to the person concerned. Much depends upon the nature of the function in question and its impact on the concerned person. If in a matter, the authority concerned has to base its decision on the facts determined by it, and the decision of the authority affects the concerned person adversely, the judicial attitude generally is to hold the function of the authority as quasi-judicial and to insist that the authority gives a hearing to the concerned person before deciding upon the matter. Recently, a judicial trend is emerging to insist on an opportunity of being heard being given to the affected person by the deciding authority irrespective of the function being characterised as quasi-judicial or administrative. This matter is discussed in detail below. The position is being illustrated later by resorting to a functional approach, i.e., selecting a few important functions performed by the Administration and taking note of the judicial responses in the matter of adopting hearing procedure in the discharge of those functions.74 4. FROM QUASI-JUDICIAL TO FAIRNESS The reason for the concept of quasi-judicial to be uncertain and abstruse is that under one compendious term, an attempt is made to include a wide variety of administrative actions, diverse in nature, having different ingredients and consequences, and seeking to apply natural justice to these diversified proceedings, e.g, disciplinary proceedings against civil servants, approval of a nationalisation scheme, functions involving discretion or public policy, etc. What a disciplinary authority should do while taking action against an employee for misconduct is different from what the government needs to do while approving a nationalisation scheme where individual interest may not be as dominant as public interest. Before 1963, in England, the judicial attitude was very restrictive as regards the applicability of natural justice. The courts refused to apply natural justice to many types of proceedings, e.g., disciplinary proceedings,75 cancellation of licences, etc. by characterising them as administrative rather than quasi-judicial. The concept of quasi-judicial was given a narrow and strict connotation. A function was regarded as quasi-judicial if there was a 'super-added' duty on the concerned authority to act 'judicially'. Another limitation imposed by the courts was that natural justice could not be claimed when only a privilege and not a right was being withdrawn. Both these hypotheses are illustrated by Nakkuda Ali v. Jayaratne76. Cancellation of a cloth dealer's licence without a hearing having been given to him was justified by the Privy

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Council on two main grounds: (i) Licence is merely a privilege enjoyed by the license-holder as no one has a legal right to a licence. Therefore, no hearing is called for when executive action is taken to withdraw a privilege. (ii) The Controller cancelling the licence was under no duty to give the licensee a hearing before cancelling the licence as there was no 'super-added' duty laid on the Controller to hear the affected person. This requirement was derived from the observation of Lord Atkin in Electricity Commissioners.77 In the instant case, the Privy Council went by the bare words of the statutory provision in question and refused to read natural justice therein saying that there was no procedure included therein for hearing. The ruling thus meant that one could claim hearing only if his right was being affected but not when only a privilege enjoyed by him was being affected. And also, there must be some indication in the parent Act itself casting a duty on the concerned decision-maker to hold a hearing before taking a decision. Nakkuda Ali was vehemently criticised by administrative lawyers.78 In course of time, both these propositions lost their validity. The right/privilege dichotomy fell in disuse in British Administrative Law, and the British courts also gave up their insistence on the notion of 'super-added' duty to act 'judicially'. Such a transformation in judicial attitude came about with the historic House of Lords' case Ridge v. Baldwin in 1963.79 The restrictive phase in judicial thinking as regards natural justice came to an end with this case. This case deeply influenced judicial thinking in this area throughout the common-law world including India. The Indian courts refer to this case quite often while dealing with an issue pertaining to natural justice. It is therefore advisable to take note of this case in some detail. Under S. 191(4) of the Municipal Corporations Act, 1882, a watch committee had power to dismiss' any constable whom it "thinks" negligent in his duty, or otherwise unfit for the post. The appellant was dismissed by the watch committee without giving him an opportunity of being heard. The House of Lords held that the power of dismissal could not be exercised without giving a proper opportunity to the concerned person to present his case in defence. Lord Reid delivering the leading judgment reviewed the prior case-law which had arisen in England around this point and clarified the issues involved therein. The judgment seeks to remove much confusion and obscurantism clouding the audi alteram partem rule in the English law, especially arising out of the observations of Atkin, L.J., in R. v. Electricity Commissioners, ex p. London Electricity Joint Committee Co.,80 that the writ of certiorari will lie to "any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially." Lord Reid explained in Ridge that it was a fallacy in the earlier cases to interpret the statement to mean that the duty to act judicially was a 'superseded' condition; the duty flowed merely from the nature of the rights of the individual. Lord Reid made it clear that whether in a particular case audi alteram partem rule was to be applied or not depended upon the nature of the duty or the power conferred. Such an inference could be drawn "when the power relates solely to the treatment of a particular individual". The dismissal of the chief constable was therefore declared null and void. The Ridge decision was in response to the felt needs of the time. As the administrative process was expanding, the courts were becoming conscious of the increasing scope for abuse of powers at the cost of the individual. They felt the need of making the Administration follow some procedural norms of due process in its functioning. With this realization, the judicial attitude underwent a transformation on the question of natural justice. The courts started to shed their old inhibitions in the matter and proceeded to expand the concept of quasi-judicial so as to correspondingly expand the scope for application of natural justice. Then came Ridge v. Baldwin81 which initiated a liberal trend in England in the area of natural justice. The great achievement of Ridge was to hold that there was no need to search for any "super-added" duty to act judicially to hold a function as quasi-judicial. For this purpose, the courts should look merely to the 'nature of the function' itself which is in question. The "duty to act judicially" is to be inferred from "the nature of power being exercised". Ridge established the basic principle that wherever in the exercise of a power, a decision is taken by the Administration which adversely affects the legal rights of an individual to his detriment, the rules of natural justice must be observed by the decision-maker. The fact that a statute is silent as regards procedures to be followed is immaterial. The duty to observe the rules of natural justice arises by implication from the nature of the power conferred. Thus, it became easier for the courts to label a function as quasi-judicial and concede natural justice in exercising it. Ridge v. Baldwin is a landmark case; it has been characterised as "the Magna Carta of natural justice".82 It has been widely commented upon by scholars.83 It has given a great fillip to the right of hearing in

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administrative process. The courts have been expanding the scope of quasi-judicial since Ridge, thus expanding the right of hearing to the affected persons and providing them with some procedural safeguards. Many functions characterised earlier as administrative denying natural justice came to be called as quasi-judicial after Ridge. Many 'privileges' of old have become transformed into rights after Ridge. Thus, in many situations, the courts in England came to apply natural justice after Ridge.84 The advantage of this judicial approach has been to win some procedural safeguards for a person adversely affected by some decision of an authority.85 In course of time, another liberal change has come over the judicial attitude. In in re H.K. (An Infant),86 the Court of Appeal abandoned the classificatory approach (quasi- judicial v. administrative) and propounded the proposition that whether the function being discharged by the Administration be regarded as quasi-judicial or administrative, it must, nevertheless, be discharged with fairness. H.K. put emphasis on duty to act fairly. Since then the horizons of the right of hearing have been expanding further'87 as the courts now adopt a liberal stance and impose hearing requirement in a wide range of functions discharged by the Administration without labelling the same as quasi-judicial.88 The courts insist that fairness is essential in administrative process. Several reasons have led to this significant development. Differentiation between quasi-judicial and administrative seems to be merely an artificial formality, as many a time such a distinction is elusive and mostly a matter of judicial policy. Also, since the functions of the Administration have been expanding adversely affecting the rights and interests of individuals, the courts are convinced that it is essential to concede the right of hearing on a broader scale, but, at the same time, it may be artificial to call a function as quasi-judicial as it may have no judicial element involved. Or, in a situation, the court may feet that the function of the Administration is such that it is susceptible to the application of only a few but not all the elements of natural justice. Here the court may either call it administrative and thus deny completely the application of natural justice; or else, it may be suggested that the function is administrative at some stage or for some purposes, but quasi---judicial at another stage or for other purposes.89 Such a breaking up of one and the same proceeding into different stages or compartments may not be the correct thing to do as the administrative action taken is one whole,90 and it may create its own complications. Further, when a proceeding is characterised as administrative, the person whose interests are adversely affected thereby may be left with no effective means of redress of his grievances as he could claim no procedural safeguards. To overcome these difficulties, the new trend has emerged. The advantage is that procedural fairness can be imposed on a large number of decision-making bodies without having to characterise their functions as quasi-judicial. This approach has resulted in applying hearing procedure to a large chunk of administrative process. The nexus between hearing and quasi-judicial no longer exists in administrative process. This approach does away with the conceptual approach of calling a function as quasi-judicial when not much of judicial element is discernible there. 'Label -consciousness' and 'word-worship' have become a less conspicuous feature of the English Administrative Law. The emphasis is now placed on the element of injury to the concerned person by the administrative action in question to concede hearing to the affected person. Lately, in Britain, the courts have further started enhancing and expanding the scope of the right to be heard. They have now ruled that a person can claim hearing even when he has no right but a 'legitimate expectation' and the same is being adversely affected by administrative action. In Schmidt,91. Lord Dinning propounded the proposition that an administrative authority should give a hearing when a person's liberty, property, right, interest or even some legitimate expectation was being affected. If a person has some 'legitimate expectation', "it would not be fair to deprive him without hearing what he has to say." It was held in that case that a foreign alien had no right to enter the country except by leave, but, if he was given leave to come for a limited period and his permit was sought to be revoked before the expiry of the time limit, he ought to be given an opportunity of making representation for he had a legitimate expectation of being allowed to stay for the permitted time. In the instant case, the court ruled that a foreigner whose permit to stay in England was cancelled before the expiry of its time-limit had a right of being heard because he had been deprived of his "legitimate expectation" of being allowed to stay for the permitted period. The term "legitimate expectation" goes beyond right or interest and, thus, the concept of natural justice becomes much wider. This indicates that the courts have been following a liberal judicial policy on the question of the right of being heard. In O'Reilly v. Mackman,92 the question was whether the board of visitors of a prison should follow natural justice while imposing forfeiture of remission of sentence on a prisoner as a matter of

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discipline. The House of Lords ruled that the remission of prison sentence was not a matter of right but of indulgence. However, a prisoner has legitimate expectation of getting remission, based on his knowledge of the general prison practice. Such legitimate expectation would give sufficient interest to a prisoner to challenge forfeiture of remission of sentence as a matter of discipline if the board did not follow natural justice while doing so. In the leading case Att. Gen of Honkong v. Ng Yuen Shiu, 93 an alien, an illegal immigrant in Hongkong, applied for citizenship, but his application was rejected and he was ordered to be deported without being heard. Earlier, the Government had given a general understanding that each case would be decided on merits. The Privy Council ruled that the applicant was entitled to be heard before his application was rejected. The Privy Council emphasized: ".....'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis". Legitimate expectations may be based upon some express statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision,94 or from the existence of a regular practice which the claimant can reasonably expect to continue.1 Thus, the movement in the area of right of being heard has been--from right to privilege and then to legitimate expectation. While, as stated above, the emergence of the concept of fairness has led to several notable developments in Administrative Law, e.g., expansion of the scope of the right of hearing, the artificial labelling of a function into administrative and quasi-judicial has now practically gone out of vogue in judicial pronouncements; the scope of certiorari has also expanded as certiorari is no longer confined to judicial or quasi-judicial bodies but its coverage has expanded beyond that to cover administrative bodies as well so long as they follow fair procedures.2 But it may also be noted that the emergence of the concept of fairness, and de-emphasizing natural justice, creates its own problems. For example, it is not clear whether natural justice and fairness imply two different standards of hearing or only one and the same standard. Does natural justice imply a higher standard of hearing than what is implied by fairness ? Is fairness merely a somewhat diluted or a less formal version of natural justice ? Or. are both synonymous? Does it mean that natural justice applies to quasi---judicial functions and fairness applies to administrative functions ? Also, it may be noted that by eliminating identification of a function as quasi-judicial and doing away with such a labelling, and by introducing the elusive concept of fairness, the task of the courts has by no means become easier than before. The courts will now be faced with difficult choices, viz., to choose situations where natural justice is to be followed, where fairness is to be followed, and where neither natural justice nor fairness is to be followed. The difficulties of the courts are accentuated because the meaning and scope of 'fairness' is not definite. Even the concept of natural justice is flexible.3 The determination of such questions require a delicate balancing of conflicting values and involves policy-making by the courts. Finally, the question arises whether it will be prudent to completely give up the concepts of quasi-judicial and natural justice and substitute the same with fairness. It may be that both the concepts should co-exist side by side: natural justice may be used where better procedural safeguards are warranted than what may be available under the rubric of fairness. It may be possible to argue that an authority acting in a quasi-judicial capacity must observe natural justice, while an authority acting administratively may act fairly. In the former case, a more formal case, a more formal hearing proceure may be applied than in the latter case. This approach will retain the distinction between quasi-judicial and administrative, on the one hand, and natural justice and fairness, on the other. The reason for suggesting this dichotomy is that there are certain bodies, like tribunals, and certain proceedings, like dismissal from service, where elaborate hearing procedures need to be followed. In other situations, a less elaborate hearing procedure may be adequate. The concept of natural justice is vague and flexible, but the concept of fairness is still more so. There is a danger that the universal adoption of the concept of fairness may result in the dilution of the hearing procedure even in those situations where otherwise a more elaborate hearing may be warranted. Natural justice, though a flexible concept, yet it does embody some minimal content of fair hearing, e.g., absence of bias, right to know the other party's case; duty to give reasons; and to arrive at findings on the basis of record, etc.4 "Fairness" may not comprehend all these safeguards. Jackson observes in this connection:5 "The courts ... may seem to extend the scope of natural justice by using an all embracing test of fairness but nullify, at least to a large extent, the effect of that extension by the content that they give to the rules of natural justice in particular cases. Thus one writer has claimed that decision on the admission of Common-wealth immigrants

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subsequent to Re H.K (An Infant) 'have shown how easy it is for the courts to narrow the meaning of 'acting with fairness' to the point of extinction.'"

If fairness dilutes natural justice, then the danger is that the courts may be tempted to insist only on some semblance of hearing procedure in most cases. While in scope the right of hearing may expand, in content it may get diluted. The danger inherent in the situation has been adverted to by some legal scholars. As for example, Prof. Northey of New Zealand has stated:6 "Recent decisions... have accepted the concept of fairness as appropriate to the exercise of some non-judicial powers. But fairness is not identical with the principles of natural justice, though there may be some common ground. In these cases where fairness has been demanded of an official or tribunal, his obligation has been much less demanding than compliance with principles of natural justice. Any attempt to identify fairness with the principles of natural justice should be resisted because it is appropriate and necessary to expect those with judicial functions to meet a higher standard, procedurally and otherwise, than those whose functions are not judicial. To equate the two may well result in tribunals with judicial functions being required to meet only the standards of fairness and thereby diminish the protection now afforded by the principles of natural justice."

Such a danger can be averted if the courts adopt a two-fold strategy: (1) broadening the scope of the right of being heard; (2) insisting on maximum, rather than minimum, procedural safeguards consistent with the nature of the function being discharged by the Administration. The first aspect is considered in this Chapter; the second aspect is considered in the next Chapter. The idea of "fairness" is not to weaken the concept of natural justice but to apply certain procedural safeguards to the situations where none were applicable before. Though the development of law in applying "fairness" to "administrative" proceedings is to be welcomed, yet great care has to be taken that it should not lead to the dilution of "natural justice" in a situation where it would otherwise have been applicable. To ensure this it is necessary to keep intact the concept of " quasi-judicial" where an elaborate hearing can possibly be given and to invoke the concept of "fairness" in cases where only a less formal hearing may possibly be held.7 If the doctrine of "fairness" becomes all pervasive replacing natural justice completely, then there is a danger of hearing (or procedural fairness) reaching a vanishing point8, and what the courts have achieved by one hand may be lost by the other hand. 5. NATURAL JUSTICE IN INDIA In India developments in the area of natural justice have been more or less parallel to those in England. The horizons of the right of hearing have been constantly expanding since 1962. In that year, in Ghanshyan,9 the Supreme Court embarked on an expansionist course in this respect; the Court recognized the nature of the right affected and the power conferred on the authority as controlling the question of hearing to the party concerned. This was in a way anticipating the new liberal trend regarding natural justice which was to be revealed by the House of Lords in Ridge v. Baldwin a year later. The fact however remains that the Indian judicial thinking in this area has been very deeply influenced by the developments in judicial thinking in England. Commenting on Ridge, the Supreme Court has stated that the extent of the area where the principles of natural justice have to be followed and a judicial approach adopted, must depend primarily on the nature of the jurisdiction and the power conferred on an authority by statutory provisions to deal with the questions affecting the rights of the citizens. Lord Reid's judgment in Ridge has been commended as affording valuable assistance in dealing with the vexed question of characterising the nature of an action taken by the authority.10 The said judgment, the Court has stated, makes wider the area where principles of natural justice have to be followed, and it thus correspondingly extends the horizon of the writ jurisdiction.11 In O.P. Gupta v. Union of India,12 the Supreme Court expressing approval of Lord Reid's opinion in Ridge has stated: "It should be of assistance in deciding questions relating to natural justice." After Ridge, the Supreme Court started extending the scope of the concept of quasi-judicial and characterising many activities of the Administration as quasi-judicial. In this phase, the Court conceded liberally the right of hearing to persons affected by actions of the authorities. As Hedge J., speaking for the Court observed in Kraipak13: "The horizon of natural justice is constantly expanding" and further, "In recent

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years, the concept of quasi-judicial has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power." Since 1970, a further expansion in the right of hearing to the person affected by administrative process has been consummated by the courts adopting the strategy, again inspired by the change in judicial thinking in England, of discarding the distinction between quasi-judicial and administrative and invoking the concept of fairness rather than natural justice. It was in the trend-setting pronouncement by the Supreme Court in Kraipak that the new liberal trend in judicial thinking was given vent to. Before Kraipak, the distinction between administrative and quasi-judicial functions used to be a major element in deciding the question of entitlement to right to hearing. Kraipak changed this approach in a fundamental manner.14 The Supreme Court now categorically propounded the view that the distinction between quasi-judicial and administrative ought to be discarded for the purpose of hearing being given to the affected party. Hegde J., speaking for the Court said:15 "The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.... The concept of rule of law would lose its validity if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily and capriciously..."

The Court asserted in Kraipak that natural justice could be applied even to the so-called 'administrative' functions as well as contrasted to quasi-judicial functions since the rules of natural justice only aim at securing justice, or to prevent miscarriage of justice and the basic aim is to arrive at a just decision. Kraipak is regarded as an epoch-making decision as it had immense law creative potentialities. It demolished the artificial and conceptualistic distinction between quasi-judicial and administrative functions as well as delinked natural justice from quasi-judicial. Kraipak widened the vista of right to hearing. Kraipak moved the Indian Administrative Law from conceptualism to functionalism. Accordingly, Kraipak exerted a profound impact on the growth of this branch of law.16 The thought process exhibited in Krapiak, that the duty to act fairly lies on any authority whether administrative or quasi-judicial, was later supported vigorously by the Court in Maneka Gandhi, a case regarding impounding of a passport.17 This case very much strengthened the trend of expanding the right of hearing. Bhagwati, J., emphasized in his judgment that natural justice is a great 'humanizing principle' intended to invest law with fairness and to secure justice, and, over the years, it has grown into a widely pervasive rule affecting large areas of administrative action. The soul of natural justice is "fairplay in action" which is important in both quasi-judicial and administrative proceedings and that is why it has received the widest recognition throughout the democratic world. This being the test of the applicability of the doctrine of natural justice, there can be no distinction between a quasi-judicial and an administrative function for this purpose. The aim of both administrative inquiry and quasi-judicial inquiry is to arrive at a just decision and "if a rule of natural justice is calculated to secure justice, or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both."18 Bhagwati, J., emphasized that fairplay was important in both cases, as, at times, an unjust administrative decision may have far more serious consequences than a quasi-judicial decision. He therefore declared: "The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable."

One may say that this case achieves universalisation of the hearing procedure in administrative process as it insists that fair play applies to all proceedings, whether administrative or quasi-judicial in nature. Application of natural justice is to be regarded a rule, its non-application an exception, in administrative proceedings. In Maneka, the passport of the petitioner had been impounded under S.10(3)(c) of the Passport Act, 1967, in public interest. The Supreme Court ruled that the consequences of impounding a passport would be to impair the constitutional right (under Art. 21 of the Constitution) of the passport holder to go abroad. The

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authority can exercise its power only on certain grounds as set out in S. 10(3). The authority must apply its mind to the facts and circumstances of a given case and decide whether any ground exists to justify such impounding and the authority is required to record in writing its reasons for making the order. An appeal lies from the authority's decision to the Central Government. In these circumstances, the Court ruled that the power to impound a passport is quasi-judicial in nature, and rules of natural justice would apply in exercising the power. Even if the power be treated as administrative in nature, natural justice must still apply thereto because of the adverse civil consequences which the order entails to the passport holder. Since then the above proposition has been reiterated again and again by the Supreme Court as it has realized the need to provide for a hearing to the affected person to the utmost limits. Thus, the Supreme Court noted in Mohinder Singh Gill:19 "The dichotomy between administrative and quasi- judicial functions vis-a-vis the doctrine of natural justice is presumably obsolescent after Kraipak in India." Justifying this judicial approach, the Court observed: "Today in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fairplay into its wheels.... Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity."

The Court observed again in the same vein in Liberty20: "Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties." In S.L. Kapoor v. Jagmohan,21 the Court referred to the same theme in the following words "The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the pristine incantation of 'administrative action'."

It is thus clear from the above that in India extension of the right of being heard has been consummated by extension of the scope of quasi---judicial by characterising many more functions as such and applying natural justice thereto, as well as by discarding the distinction between quasi- judicial and administrative functions and invoking the concept of fairness in administrative action. "Fairness in action" is now an established test to judge the validity of the actions of the State or the State instrumentality. In the instant the of amalgamation and transfer of employees, the action of the Punjab National Bank were found to be fair.22 To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every and all cases. Each case depends upon its own backdrop. Removal of encroachments from the public property needs urgent action.23 Activities of public functionaries should be above board and, if allegations and criticisms are received in that regard, the matter should be promptly inquired into and appropriate follow-up action taken.24 The holder of every public office holds a trust for public good and therefore his actions should all be above board. The conduct and activities of a public body constituted with the avowed object of serving the society must bear no colour except being transparent and be guided with the object of public good confined within the four corners of the law governing the same.25 The obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. The doctrine of fairness is complementary to the principles of natural justice which the quasi- judicial authorities are bound to observe. It is true that the distinction between the quasi- judicial and the administrative action has become thin. In the matters like the Financial Corporations advancing loans, fairness cannot be one-way street. The parties taking loans should also be fair in repaying it in the same way as the corporations should be in advancing loans.26 The other authorities under Art. 12 of the Constitution of India are required to satisfy the requirement of reasonableness and fairness in their dealings even in areas of contractual relationship. Arbitrariness should not appear in their actions or decisions. The insurance companies being in the similar position, in the instant case, hence, refusal to renew mediclaim policy for the insured, having gone into litigation for payment of his claim in his previous policy, would be unfair and arbitrary.27 Fairness is the most accepted

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methodology of governmental working in absence of which law Courts would be within their jurisdiction to deal with the matter appropriately. It was held that it was neither fair nor reasonable on the part of a Senior Service Personnel to feign ignorance or plead lack of understanding when the direction of the Court stands crystal clear in the judgment. The same was deprecated by the Court.28 By now, it is well settled that when an administrative action is likely to affect rights of subjects, there would be a duty on the part of the authority to act fairly.29 In Pearlberg v. Varty (Inspector of Taxes)30 Lord Pearson said: "A tribunal to whom judicial or quasi-judicial functions are entrusted, is held to be required to apply those principles [ i.e. the rules of natural justice] in performing those functions, unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions, there is no presumption that compliance with the principles of natural justice is required, although, as 'Parliament is not to be presumed to act unfairly', the Courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness."

In R. v. Commission for Racial Equality,31 Lord Diplock stated: Where an act of Parliament confers upon an administrative body, functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions.

The above principles have been accepted and applied in India also. In the leading case of Keshav Mills Co. Ltd. v. Union of India,32 a textile mill was closed down. A committee was appointed by the Government of India to investigate into the affairs of the mill Company under the Industries (Development and Regulation) Act, 1951. After affording opportunity to the Company, a report was prepared by the committee and submitted to the Government. A copy of the report, however, was not supplied to the Company. On the basis of the report, the Government took over the management of the Company. The said action was challenged by the Company, inter alia, on the ground of violation of principles of natural justice inasmuch as no copy of the report submitted by the Committee to the Government was supplied to the Company nor was hearing afforded before finally deciding to take over the management. Rejecting the contention and observing that no prejudice had been caused to the mill Company, this Court did not interfere with the order. Speaking for the Court, A.K. Mukherjea, J. stated: " 8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yardstick in this manner. The concept of natural justice cannot be put into a straitjacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly."

In Mohinder Singh Gill v. Chief Election Commr.33 after considering several cases, Krishna Iyer, J. stated: 48. Once we understand the soul of the rule as fairplay in action--and it is so--we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation; nothing more--but nothing less.

In M.S. Nally Bharat Engg. Co. Ltd. v. State of Bihar, 34 the Government, on an application by a dismissed workman, transferred his case from one Labour Court to another Labour Court without issuing a notice or giving opportunity to the employer. Setting aside the order and referring to several cases, the Supreme Court

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invoked the "acting fairly" doctrine. The Court stated: "Fairness, in our opinion, is a fundamental principle of good administration. It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time-hallowed phrase that 'justice should not only be done but be seen to be done' is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration. It has no set form or procedure. It depends upon the facts of each case."

Quoting the observations of Paul Jackson, the Court35 said: " 19. It may be noted that the terms 'fairness of procedure', 'fairplay in action', 'duty to act fairly' are perhaps used as alternatives to 'natural justice' without drawing any distinction. But Prof. Paul Jackson points out that 'such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the Courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable'."

A.P. State Financial Corporation gave notice and communicated its decision to an industrial unit for its seizure and sale on account of its default in payment of loan. The industrial unit alleged absence of notice and opportunity to it and also non-communication of the Corporation's endorsement in the file regarding the conditions on which certain concessions were given to it by the Corporation which was accepted by the High Court and it took the view that the Corporation must be deemed to have acted unreasonably within the Wednesbury principle. The Apex Court noticed that the industrial unit had made no pleading in the writ petition before the High Court regarding its representation to the Corporation or non-communication of the Corporation's decision to it thereon. It had also not filed any rejoinder to contradict the specific averments in the Corporation's affidavit. The evidence showed that the matter was discussed and an arrangement was arrived at in between the two which was reduced to writing and communicated to the MD of the unit, representing it. On appreciation of evidence it was held that sufficient opportunity was given to the unit and the action initiated by the Corporation was fair.36 The A.P. Abolition of Posts of Part-time Village Officers Act 8 of 1985 abolished the posts of part-time Village Officers, thus disentitling them from payment of gratuity which was payable only on their demitting the office on attaining the age 58 years as there was no provision for their superannuation. However, the Apex Court ordered that their monthly contributions should in all fairness, be refunded to them with interest at the rate of 6% p.a.37 The authorities functioning under the Central Excise Act, 1944 must, as are in duty bound, protect the interest of the Revenue by levying and collecting duty in accordance with law--no less and also no more. It is no part of their duty to deprive an assessee of the benefit available to him in law with a view to augment the quantum of duty for the benefit of the Revenue which would be unfair. They must act reasonably and fairly.38 So long as an inquiry is held to be fair and it affords the candidate (here for job, suspected to have copied from the answer paper of another candidate) opportunity to defend himself, the matter should not ordinarily be examined by Courts with the same strictness as applicable to criminal charges.39 To be just and act in a just manner is writ large in our Constitution and the laws. The legislature is to act in a just manner by enacting just laws within the framework of the Constitution. The executive is enjoined with a duty to act or apply the laws in a just manner and if an individual or institution is dissatisfied with the State action in enacting the laws or their implementation he can approach the Court seeking redressal of his grievances.40 In All India Federation of Central Excise v. Union of India, 41 the Government deviated from the ratio while making ad hoc promotions on the plea that one particular category was already over-represented and therefore more promotions were made from the other category to correct the inbalance. The Apex Court held that such action of the Government was not unfair. De Smith states: "The principal value of the introduction of the 'duty to act fairly' into the Courts' vocabulary has been to assist them to extend the benefit of basic procedural protections to situations where it would be both confusing to characterise as judicial or even quasi- judicial, the decision-makers' functions, and inappropriate to insist on a procedure analogous to

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a trial."42 It is thus clear that the doctrine of "fairness" has become all-pervasive. As has been said, the "acting fairly" doctrine proved useful as a device for evading confusion which prevailed in the past. "The Courts now have two strings to their bow." An administrative act may be held to be subject to the requirement and observance of natural justice either because it affects rights or interests and hence would involve a "duty to act judicially" or it may be administrative, pure and simple, and yet, may require basic procedural protection which would involve "duty to act fairly."43 "Acting fairly" is thus an additional weapon in the armoury of the Court. It is not intended to be substituted for another much more powerful weapon "acting judicially." Where, however, the former ("acting judicially") cannot be wielded, the Court will try to reach injustice by taking resort to the latter--less powerful weapon ("acting fairly").44

It has been asserted that natural justice is not to be invoked unless civil consequences ensue. However, the Supreme Court held that even an administrative order which involves civil consequences must be made in consistence with the rules of natural justice.45 The question arises, what is the meaning of 'civil consequences'? The Supreme Court has given an expansive meaning to this term the term: 'civil consequences' covers "infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence". Accordingly, in Mohinder Singh Gill, the Supreme Court has ruled that the interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within the expression "civil consequence". A candidate "has an interest or right to fair and free and legally run election". The Supreme Court has emphasized: "Sometimes processual protections are too precious to be negotiable, temporised with or whittled down". The Court has pointed out that the philosophy behind natural justice is in one sense, "particularly justice in the process of democratic rule of law". Art. 324 of the Indian Constitution vests in the Election Commission the "superintendence, direction and control of the preparation of the electoral rolls for, and conduct of, all elections" to Parliament and State Legislatures. This includes the power to countermand poll in a constituency and ordering a fresh poll therein because of hooliganism and breakdown of law and order. The question in Gill was whether hearing needs to be given to the candidates when the poll is being cancelled by the Election Commission because of disorder in the constituency. Answering in the affirmative, the Court has said that when a candidate has reached the end of the battle, and the whole process is then upset, he has a right of being heard.46 Even if the cancellation of the poll by the Election Commission be regarded as an administrative, and not a quasi- judicial, act, natural justice ought to be applied before making such an order. It was also argued in the instant case that natural justice need not be applied in the situation as the power was vested in a high constitutional functionary like the Election Commission which is a central figure in our democratic process. Decrying the argument the Court cautioned that wide discretionary power vested in "high personages" in the absence of "legal norms and institutional checks" may lead to arbitrary decisions. "Natural justice is one such check on exercise of power." The Supreme Court emphasized that natural justice "is so integral to good government" that "the onus is on him who urges exclusion to make out why." In Kapoor, the Supreme Court has ruled that premature suppression of a municipal committee entails in civil consequences.47 In Baldev Singh v. State of H.P., 48 under Section 256 of the H.P. Municipal Act, an area governed by the Gram Panchayat was declared a notified area. The Apex Court observed that the inclusion of an area governed by a Gram Panchayat within a notified area, would certainly involve civil consequences, hence, it was necessary that the people who will be affected by the change should be given an opportunity of being heard otherwise they would be visited with serious consequences like the loss of office in the Gram Panchayats, an imposition of a way of life, higher incidence of tax and the like. Although the said Section 256 did not, in clear terms, provide a right of hearing, the Court held that denial of such an opportunity was not in consonance with the scheme of the rule of law governing our society. A similar view was expressed by the Supreme Court in State of U.P. v. Pradhan Sangh Kshettra Samiti,49 which involved delimitation of Panchayat areas and Gram Sabhas under the U.P. Panchayat Raj Act, 1947. The Court held that an opportunity of being heard should have been given to the people of the areas concerned. In this case, since action had already been taken without giving an opportunity of hearing, in view of the urgency, a post-decisional hearing was considered as sufficient compliance with the principle of audi alteram partem. Section 16 of the Gujarat Industrial Development Act 23 of 1962 gives power to the State Govt. to declare by notification that an industrial area as defined in the said Gujarat Act 1962 would also be a deemed notified area under the Gujarat Municipalities Act, 1963 (34 of 1964). It was contended that before any notification could be issued under the said Section 16 of the 1962 Act, a hearing should have been given to the residents, because notifying an area under Section 16 has civil consequences. The Supreme Court held that,

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in the instant case, there was a long-drawn-out exchange of views, consultations as well as considerations of objections over the issuing of the notification which was also linked with the exclusion of this area from the panchayat area under Section 9(2) of the Gujarat Panchayats Act, 1961 (6 of 1962). Therefore, there was no violation of the principles of natural justice.50 With the development of this line of judicial thinking, hearing has become more or less the general norm, rather than an exception, in the present-day administrative process in India. Today it does not seem necessary to put the label of quasi-judicial to an administrative action for the purpose of affording hearing to an affected party. In the Indian case-law today, the terms 'fairness', 'fairplay' and 'natural justice' are used interchangeably. Right of hearing is not denied even when the act in question is administrative in nature. The question raised now is whether in the specific administrative proceeding affecting a person, an opportunity of hearing ought to be afforded to him or not, and not whether the nature of the proceeding involved is administrative or quasi-judicial. Such a judicial approach has made hearing a pervasive procedural requirement in administrative process. Hearing is now insisted upon in a wide variety of administrative proceedings and this would not have been possible had the concepts of quasi-judicial and natural justice been continued to be interlinked. This is a very happy trend because, as stated above, hearing serves as a safeguard against administrative arbitrariness in decision-making. The courts in India have also adopted the doctrine of 'legitimate expectation'51 for claiming a hearing by the affected person.52 In Navjyoti,53 the Supreme Court has observed that if the authority proposes to defeat a person's 'legitimate expectation,' it should afford him an opportunity to make representations in the matter. The Central Government withdrew recognition of travel agents for dealing with passport matters. The travel agents were not given any opportunity to make representations against the order. The Madras High Court quashed the order in Selvi Travels v. U.O.I. on the ground that the order ran counter to the legitimate expectation of the travel agents that they would be given an opportunity of being heard before withdrawing their recognition to deal with passport matters.54 A comment or two on the above development may not be out of order at this stage. In spite of the great expansion in the right of hearing, and in spite of the fact that the courts do not differentiate between administrative and quasi-judicial functions for this purpose, the fact remains that in India the two concepts, quasi-judicial and natural justice have not gone out of vogue, and occur quite frequently in judicial opinions. One reason for this may be that old habits die hard. But another reason for this also is that in India, there is no escape from identifying the nature of a function for certain purposes. One, it is necessary to do so for the purposes of Art. 32, for, as the Supreme Court has ruled in Ujjam Bai,55 the Court will entertain a writ petition against the decision of a quasi-judicial body only if it has committed an error of jurisdiction and not merely an error of law.56 Two, the courts maintain that certiorari cannot be issued to correct any error of law made by a quasi-judicial body but only "an error apparent on the face of the record". So long as the artificial distinction between 'an error of jurisdiction', 'error of law', and 'error of law apparent on the face of the record' is maintained by the courts, it may not be possible to completely avoid characterising a function discharged by an authority.57 Three, if the parent statute does not so require, an administrative body is not required to give reasons for its decision,58 but a quasi-judicial body is so obligated to give reasons.59 Four, a quasi-judicial body cannot review its own decision, but there is no such restriction on an administrative body.60 Five, for purposes of Art. 136, whether a body is a 'tribunal' or not, it is first necessary to determine whether it is a quasi-judicial body or not.61 Lastly, there still are some functions where the right to be heard may not be conceded.62 What are the requirements of natural justice cannot be laid down in any strait-jacket. This is a well-settled position in law. The facts and circumstances of the case in question would alone provide the answer whether natural justice has been complied with or not. This is so well-settled position by now that no case law need be adverted on this subject.63 The principles of natural justice cannot be examined in vacuum without reference to the fact situation in the case64 and when facts of the case are admitted, an enquiry would be an empty formality.65 Requirements of natural justice can be moulded in such a way as to take care of two basic facets of this principles: (1) to make known the nature of accusation; and (2) to give opportunity to state the case.66 and also whether the departmental authority concerned has acted in good faith.67 In a case under the Industrial Disputes Act, 1947, the Supreme Court observed that the requirements of the principles of natural justice are: (1) a workman should know the nature of the complaint or accusation; (2) an opportunity

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to state his case; and (3) the management should act in good faith which means that the action of the management should be fair, reasonable and just. In the instant all these criteria were fully met as the bank employee had refused to receive the notice and it was deemed to served in law.68 Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-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 conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. The court can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt--that is the conscience of the matter.69 A manufacturer of sugar claimed and was granted rebate of a certain amount on excess production of sugar in terms of a notification. Subsequently by a notice he was informed that a part of the rebate was sanctioned erroneously, hence requiring him to show-cause why the excess rebate so granted should not be recovered from him under Rule 10 of the Central Excise Rules, 1944. The notice was issued after the expiry of the normal statutory period albeit within the enlarged period of limitation prescribed by the proviso to the said rule. The notice was unsuccessfully challenged in the High Court. The Supreme Court observed that the impugned show-cause notice showed that the rebate was granted erroneously. There was no mention in it of any collusion, wilful misstatement or suppression of fact by the manufacturer for the purpose of availing of the larger period of five years for the issuance of notice under Rule 10. The party to whom a show-cause notice under Rule 10 is issued must be made aware that the allegation against him is of collusion or wilful misstatement or suppression of fact. This a requirement of natural justice. It was held that the notice was time-barred.70 The service of show-cause notice under Section 269-D(2) of the Income-Tax Act, 1961 upon the transferor and transferee for the acquisition of immovable property meets the requirement of natural justice so that they may file objections in writing against the action which is proposed to be taken, namely, for acquisition of property.71 It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must comply with the principles of natural justice and the person or persons sought to be affected adversely must be afforded not only an opportunity of hearing but a fair opportunity of hearing. The Sate must act fairly just the same as anyone else legitimately expected to do and where the State action fails to satisfy the test it is liable to be struck down by the Courts in exercise of their judicial review jurisdiction.72 However, warns Prof. H.W.R. Wade that the principle is flexible: "The Judges, anxious as always to preserve some freedom of manoeuvre, emphasise that 'it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter'. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. 'In the application of the concept of fair play there must be real flexibility.' There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice."73

The learned authors quote from two authorities in support of preserving flexibility. In Russell v. Duke of Norfolk,74 Tucker, L.J. opined: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

In Lloyd v. McMohan,75 Lord Bridge stated in his speech: "The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

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The caution of associating rules of natural justice with the flavour of flexibilities would not permit the Courts applying different standards of procedural justice in different cases depending on the whims or personal philosophy of the decision-maker. The basic principles remain the same; they are to be moulded in their application to suit the peculiar situations of a given case, for the variety and complexity of situations defies narration. This is flexibility. Some of the relevant factors which enter the judicial process of thinking for determining the extent of moulding the nature and scope of fair hearing and may reach to the extent of moulding the nature and scope of fair hearing and may reach to the extent of right to hearing being excluded are: (i) the nature of the subject-matter, and (ii) exceptional situations. Such exceptionality may be spelled out by (i) the need to take urgent action for safeguarding public health or safety or public interest, (ii) the absence of legitimate expectation, (iii) by refusal of remedies in discretion, (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure, and (v) express legislation.76 There is also a situation which Prof. Wade and Forsyth term as "dubious doctrine" that right to a fair hearing may stand excluded where the Court forms an opinion that a hearing would make no difference. Utter caution is needed before bringing the last exception into play.77 Right of hearing to a necessary party is a valuable right, denial of which is serious breach of statutory procedure prescribed and violation of rules of natural justice. However, the remand for giving hearing to the parties, not heard, on facts would be of no legal consequence when all the affected parties had been given full opportunity of hearing before the High Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits.78 It is well-settled that, where adverse civil consequences follow pursuant to an order of an authority, natural has justice to be complied with ordinarily. Law, however, permits exclusion of natural justice in some cases, like urgency.79 A clerk-cum-typist of a Bank had developed the habit of remaining unauthorisedly absent from duty for long periods. On the last such occasion, he absented himself from work on 7.4.1985. He applied for leave up to 27.5.1985 which was not sanctioned and the decision was communicated to him but he did not report for duty. Thereafter, the Bank sent a notice to him about his unauthorised absence and thereafter, it invoked clause 16 of the IV Bipartite Settlement between the management of the Bank and the employees. The Bank called upon him to show cause for his continued absence and to report for duty by a certain date failing which he would be deemed to have voluntarily retired from the service of the Bank. This notice was sent to him by registered post but was returned with the report of the postal authority that he had refused to accept the same. On the said certain date he was treated as having voluntarily abandoned his services. The order in this respect also was sent to him under registered cover but was returned by the postal authority with the endorsement "not found during delivery time." The Industrial Tribunal took the view that since no inquiry was held by the Bank before the terminating his services, the action of the Bank was illegal and ordered his reinstatement, the appeal against which in the High Court was dismissed. The Apex Court, in the circumstances of the case, held that undue reliance on the principles of natural justice by the Industrial Tribunal and even by the High Court has certainly led to a miscarriage of justice as far as the Bank was concerned as there was no occasion to reinstate the employee.80 In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd.,81 the Supreme Court observed: We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge).82 But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: "'To do a great right' after all, it is permissible sometimes 'to do a little wrong'." [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India83 (Bhopal Gas Disaster)]. While interpreting legal provisions, a Court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential."

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(a) Effective Hearing When a decision is required to be taken after giving an opportunity of hearing to a person who may suffer civil or evil consequence by reason thereof, if would mean an effective hearing.84 6. FUNCTIONAL APPROACH As stated above, over the years, the courts have been manifesting the tendency of requiring applicability of natural justice to persons affected by decisions of the Administration and the courts have been moving from conceptualism to functionalism in this area. To decide the question whether the Administration is required to give hearing to the affected party, the courts do not go so much into the question whether the function being discharged by the Administration is quasi-judicial or administrative as they go into the nature of the function in question, its impact on the rights or interests of the concerned person. Below the question of applicability of the concept of natural justice is considered in the context of some specific functions discharged by authorities. (a) Disciplinary Action against Students Since any disciplinary action has an adverse impact on the career of the student concerned, the courts have invariably taken the view that before the concerned authority takes a disciplinary action against a student, such as expulsion from the institution or cancellation of his examination results, the student concerned must be given a hearing by the concerned disciplinary authority.85 In Board of High School v. Ghanshyam, 86 the examination result of the respondent candidate was cancelled, and he was debarred from appearing in the next year's examination, for using unfair means in the examination. The examination committee of the board which cancelled the results afforded no opportunity to the respondent to rebut the allegations against him. The statute and the regulations under which the committee acted gave no express indication as to how it was to act. The Supreme Court held that the function discharged by the committee was quasi-judicial for, in the very nature of things, the committee had no personal knowledge of the matter and had to depend upon the material placed before it. It was not possible for the committee to decide, unless the material was placed before it, that the examinee had committed some misconduct, and for this it was essential to hear the examinee against whom the committee was taking action. The Court strengthened its conclusion by pointing out that the decision of the committee could blast the entire career of a young man for life and place a serious stigma on him which might damage him in his later life. To the same effect is the Board of High School and Intermediate Education, U.P. v. Chitra .87 The petitioner appeared in the examination and answered all the question papers. The board cancelled her examination on the ground that she was admitted to it in spite of the shortage in attendance. The Supreme Court quashed the order of the board as the petitioner had not been given hearing by the board before issuing its order. The Court characterised the order as a penalty as she had appeared in the examination and answered all question papers. To deny her the fruits of her labour could not but be called a penalty. A penalty could not be imposed on a person without giving him a hearing. This proposition has been reiterated in several cases.88 Again, the Delhi High Court has ruled that cancellation -of the examination result of a candidate by an examining authority merely on suspicion, without holding any inquiry into the conduct of the examine is not valid.89 On the other hand, there are some fact-situations when the courts have legitimized disciplinary action against students even when it was taken without following natural justice. For example, in Bihar S.E. Board v. Subhas Chandra ,90 the candidates at the secondary school examination of the board at one centre indulged in mass copying. The board cancelled the examination of all candidates in all subjects at this centre and permitted the examinees to re-appear at a supplementary examination. The candidates challenged the order on the ground that no opportunity had been given to them to show cause before passing the order. The Patna High Court relying upon the Ghanshyam case held that the board had failed to act according to natural justice and, therefore, quashed the order. The Supreme Court reversed the High Court's decision. It held that

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it was obvious from the results that the candidates concerned had indulged in mass copying. No particular candidate was being charged with adoption of unfair means; a vast majority of the examinees had indulged in unfair means. Since the examination as a whole had been vitiated by adoption of unfair means on a mass scale, it would be wrong to insist that the board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had adopted unfair means. The distinguishing feature of Subhash from the Ghanshyam case is that whereas in the latter case action was taken only against one individual, in the former case, the examination of all the candidates at one whole centre was cancelled. Further, unlike Ghanshyam, no penalty of debarring the candidates to take examination again was imposed in Subhash.91 In a competitive examination held by the State Public Service Commission for the State Civil Service, a few candidates wrote their roll numbers inside their answer books in addition to writing the same at the proper place provided for the purpose. The Commission refused to have these answer books evaluated. No other action was taken against the candidates. The Supreme Court ruled that no natural justice was required to be followed in the instant case as neither any misconduct was imputed to the candidates, nor was their examination cancelled, nor was any punishment imposed on them.92 A student obtained admission to a medical college by fraud. His admission was cancelled. The Supreme Court ruled that rules of natural justice were not attracted in the instant case and there was no need to give a hearing to the concerned student.93 Expulsion or rustication of a student from an educational institution on the ground of misconduct entails giving of an opportunity of being heard to the student.94 A distinction has been drawn between removal of a student from an educational institution on academic grounds and his expulsion in the name of discipline. Natural justice is necessary in the latter case but not in the former. In Jawaharlal Nehru University v. B.S. Narwal,95 the university had power to remove a student from a course on the basis of unsatisfactory academic performance. A candidate was removed from the rolls of the University on the ground of unsatisfactory academic performance. He challenged the order as having been made in violation of natural justice. Rejecting his plea, the Supreme Court stated that this was not a case of expulsion of a student by the University in the name of discipline. The instant case was "merely one of assessment of the academic performance of a student which the prescribed authorities of the university are best qualified to judge and the courts perhaps are least qualified to judge". No hearing was necessary when duly qualified and competent academic authorities have examined and assessed the work of a student over a period of time and declared it to be unsatisfactory. But if the assessment of the student is made both on academic as well as non-academic grounds, then the student is entitled to a hearing.96 (b) Formation of Prima facie Opinion The Supreme Court observed that it is no doubt true that evidence had to be gathered and a prima facie opinion found that the provisions of Section 5(1)(e) of the Prevention of Corruption Act, 1947 are attracted before an F.I.R., was lodged. During the course of gathering the material, it does not happen that the officer concerned or other person may be questioned or other queries made. For the formation of a prima facie opinion that an officer may be guilty of criminal misconduct leading to the filing of the F.I.R., there is no provision in law or otherwise which makes it obligatory that an opportunity of being heard be given to a person against whom the report is to be lodged. (para 15). The opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. (para 16)1 (c) Sanction of Prosecute In State of Bihar v. P.P. Sharma ,2 the Apex Court observed as under: "It is equally well settled that before granting sanction the authority or the appropriate Govt. must have before it, the necessary report and the material facts which prima facie establish the commission of offence charged for and the appropriate Govt. would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis involved. Therefore, the order of sanction need not contain detailed reasons in support

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thereof......But the basic facts that constitute offence must be apparent on the impugned order and the record must bear out the reasons in that regard. The question of giving an opportunity to the public servant at that stage as was contended.......does not arise."

The law on the applicability of the principles of natural justice viz. affording an opportunity of hearing at a stage anterior to the actual commencement of the proceedings before the Court or tribunal has been stated as under.3 "Where the administration is merely initiating a procedure or seeking to establish whether a prima facie case exists, the Courts will not be likely to extend the statutory procedure at least where it gives a full opportunity to be heard later in the proceedings. In Wiseman v. Borneman ,4 a tribunal's function was to decide whether, on the basis of documents submitted to it by the taxpayer and by the Inland Revenue, there was a prima facie case for the Revenue to recover unpaid tax. The House of Lords held that the taxpayer was not entitled to see and answer the statements in the Revenue's documents to the Tribunal. But some of the judgments suggest that that procedure would not have been adequate if the Tribunal had been entitled to pronounce a final judgment: in that case the Courts could supplement it as in Cooper v. Wandsworth District Board of Works .5 Likewise, in Pearlberg v. Varty ,6 the taxpayer was not entitled to be made heard before a Commissioner gave leave for an assessment of tax to be made against him. The opportunity to be heard would come later. A comparison was made with a decision to prosecute and the Attorney General's consent to prosecution. Thus in Wiseman v. Borneman ,7 Lord Reid said: 'Every public officer who has to decide whether to prosecute or raise proceedings ought first to decide whether there is a prima facie case but no one supposes that justice requires that he should first seek the comments of the accused or the defendant on the material before him. So there is nothing inherently unjust in reaching such a decision in the absence of the other party.' In R. v. Raymond ,8 it was held that the rule requiring a hearing was inapplicable to the process of preferring a bill of indictment: the defendant would have an opportunity of being heard at his trial."

The grant of sanction is purely an administrative act and affording of opportunity of hearing to the accused is not contemplated at that stage.9 An identical question has been considered by this Court with reference to Section 6 of the Prevention of Corruption Act, 1947 in Supdt. of Police (C.B.I.) v. Deepak Chowdhary, 10 and it was held as under in para 5 of the Report: "The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a Court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice."

The legal position is, therefore, clear that no opportunity of hearing is required to be afforded to the delinquent employee before grant of sanction by the authority.11 (d) Dismissal from service In the matter of dismissal from service of a government servant, Art. 311(2) of the Constitution comes into play according to which, before a civil servant is "dismissed, removed or reduced in rank," there should be an inquiry in which he has been informed of the charges against him and given a "reasonable opportunity" of being heard in respect of these charges. The "reasonable opportunity" envisaged in Art. 311(2) has to be in accordance with the principles of natural justice.12 In case of dismissal of an employee by any other public authority, the courts have generally insisted on a quasi-judicial approach.13 This principle has been applied in several cases, e.g., termination of service of a vice-chancellor of a university,14 changing the terms of appointment of a teacher to his prejudice by a university,15 termination of service of a dock worker on account of being detained in preventive detention for violent and riotous behaviour,16 imposing the punishment of censure on a government employee.17 The Chancellor of a University passed an order

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against a University teacher on the recommendation of the University Service Commission. The Supreme Court ruled that the USC must have afforded an opportunity of being heard to the teacher concerned before making its recommendation. An order passed by the Chancellor on the recommendation of the Commission made without complying with the principles of natural justice was liable to be quashed.18 Ordinarily when statutory provisions (statute, statutory rules or regulations) govern service conditions of the employees, the court reads the requirement of natural justice into the statute in the case of termination of service of an employee of a public authority. But the court broke new ground in U.P. Warehousing Corporation v. Vijaya Narain Vajpayee ,19 by holding that even in the absence of statutory provisions regulating service conditions of employees of a statutory corporation, natural justice must be observed while taking disciplinary action against them. The ordinary rule of non-enforcement of a personal service contract does not apply in the case of a statutory body as in such a case "there is no personal element whatsoever because of the impersonal character of a statutory body". Employment in a statutory body is regarded as public employment. Inquiry has to be conducted by the concerned authority against the employee in accordance with regulations, if any, framed by the concerned body, and in the absence of any such regulations, in accordance with natural justice.20 A simple termination of service of a temporary employee, or one on probation, as per the terms of appointment may not invite the application of natural justice. But if a temporary servant or a probationer is sought to be dismissed for misconduct by a public body, he should be given a hearing.21 If on its face, a dismissal order seems to be innocuous without revealing any misconduct on the employee's part, the court can go behind the order and ascertain its true nature to see whether or not the order is a camouflage with a view to avoid an enquiry.22 It is clear from these cases, that the ruling in the Airlines case,23viz., that an employee of a statutory corporation is not entitled to natural justice in the matter of dismissal has been overridden. In Airlines, the Supreme Court laid emphasis on the contractual nature of employment but the view is now held that such employment has more 'public' than 'contractual' character. Reference has already been made to Ridge v. Baldwin , a case of historic importance, which was a case on dismissal of an employee.24 A significant case on dismissal of an employee by a public authority is Malloch v. Aberdeen Corporation ,25 where natural justice was held applicable to a case of dismissal of an employee by a public authority. Such an employment could not be regarded as purely a matter of master-servant relationship. A police regulation provided that during his period of probation in the force, the services of a constable could be dispensed with any time if the chief police officer considered him unfit for the office. The House of Lords ruled in Chief Constable v. Evans 26 that the chief police officer could exercise his power only after applying natural justice as here deprivation of an office was involved. The District Board Act, 1932, and the rules made thereunder afforded the safeguard of hearing to the employee in case of his dismissal but not in case of termination simpliciter of his service. In S.R. Tewari v. District Board ,27 on facts, the Court drew a distinction between dismissal and termination and held the appellant not entitled to a hearing as his service was terminated. This is an old case and it remains doubtful whether such judicial approach will be accepted today.28 Even if a body be non-statutory, it cannot dismiss an employee without affording him natural justice, if the body is characterised as a government instrumentality.29 An employee can be retired compulsorily in public interest (earlier than the normal age of superannuation) after he has put in a specified number of years of service (usually 30 years). The courts have taken the view that it is not necessary to give a hearing to the concerned employee before passing an order of compulsory retirement. Thus, if a simple order is passed compulsorily retiring an employee from service, he will not be able to challenge the same on the ground of lack of natural justice to him. The rationalisation for this view is that compulsory retirement in public interest does not amount to dismissal; it is neither a punishment nor is any stigma attached to it and so the affected employee need not be heard.30 Similar is the case of a probationer as he has no right to hold the post, hence he is not entitled to opportunity of hearing.31 But if an order seemingly of compulsory retirement is, in effect, that of dismissal, then natural justice becomes applicable. The court can go behind an order of compulsory retirement to ascertain its true nature: is it really an order of compulsory retirement or a camouflage for an order of dismissal? If the latter, the order will be

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held invalid if passed without hearing the concerned employee.32 An order of compulsory retirement is passed in the discretion of the concerned authority, but the discretion need to be exercised properly. If, for instance, it is exercised on irrelevant or stale material, then the order can be invalidated.33 As will be seen later,34 the courts do not accept the theory of "absolute discretion" in any area. There are cases on record where the courts have quashed an order of compulsory retirement because of improper exercise of discretion.35 As a comment, it may be said that denial of natural justice by saying that compulsory retirement is neither "stigma" nor "punishment" is not convincing. To a person, retirement in such a manner can cause great financial embarrassment. It will be more just if the employee concerned is heard before being compulsory retired. An employee against whom certain charges have been made may be suspended pending an enquiry without being heard. Usually courts draw a distinction between suspension as a punishment (e.g. when a lawyer is suspended from practice for 6 months as a disciplinary matter) and suspension as a 'holding operation' pending inquiry. Natural justice is applicable in the former case but not in the latter case. An order affecting a public servant financially must be passed after giving him full opportunity to make out his own case against the proposed order. An employee was suspended in 1954 and certain departmental proceedings were initiated against him. He was reinstated in 1966 and the inquiry against him was withdrawn. An order was then passed that he should not be allowed any thing more than what had already been paid to him as subsistence allowance during the suspension period. The Court held the order invalid as it had been passed without giving him an opportunity to show that the suspension order against him was unjustified and that he was entitled to full pay and allowances.36 An order of forfeiture of past service of a government employee for participation in an illegal strike cannot be made without observing natural justice.37 An employee was dismissed from service and the Government directed the employee to be paid for the period of his absence less than full pay and allowances and prohibited that period from being treated as spent on duty. The Apex Court held that even though there was no express requirement in Assam Fundamental Rule 54(3) for giving an opportunity to the employee before passing such an order, giving of such an opportunity was implicit in the exercise of the power which was conferred by the said provision. Since the same was not done, the Supreme Court set aside the order, leaving it open to the Govt. to pass a fresh order after affording the employee an opportunity.38 The Supreme Court has ruled that when a prejudicial order is made to deprive a government servant of his increments above the stage of efficiency bar retrospectively after his retirement, the government is obligated to hear him before making an order against him as such an order results in pecuniary loss to him. The Court has stated in this connection: "It is a fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case."39 When a government servant retires from service, it is his right to receive pension. Pension is not a bounty depending upon government's sweet will and pleasure. Pension is not awarded as a matter of grace to a government servant on retirement. Instead it is awarded to him if his satisfactory service is approved. Therefore, the government cannot reduce or withhold pension without giving him an opportunity to make his defence.40 The government cannot by itself change the date of birth of an employee once accepted by it without giving him a hearing.41 A High Court judge retires at the age of 62 years. Art. 217 of the Constitution provides that if any question arises as to the age of a High Court judge, the question shall be decided by the President in consultation with the Chief Justice of India and the President's decision shall be final. The Supreme Court has held in Union of India v. Jyoti Prakash42 that the President exercises a quasi-judicial function and the judge concerned would be entitled to get a hearing before the President decides the question of his age. It needs to be pointed out that the "right to livelihood" is protected under Art. 21 as a part of "right to life". Therefore, the power to terminate the service of an employee can be exercised only in accordance with just, fair and reasonable procedure conformable with natural justice.43 (e) Removal from an office

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Natural justice is to be followed in such cases as removal of an elected member of a local authority,44 or an elected president of a panchayat samiti,45 or a member of a statutory body,46etc. In all these cases, removal of the person concerned from office is by way of punishment and he should be given an opportunity to rebut the charges levelled against him. A member of a district forum constituted under the Consumer Protection Act, 1986, cannot be removed without being given an opportunity of being heard against his removal.47 Suspension of a person from office does not require observance of natural justice by the authority concerned.48 When, however, dismissal of an officer-bearer is effected as a matter of policy, and not on the basis of misconduct of any individual, natural justice may not be applicable. The appellant was appointed as Chairman, Haryana Board of School Education for two years. After about six months, he was removed from office as the government took a policy decision to terminate the services of all chairmen of boards. The Supreme Court ruled in D.C. Saxena v. Haryana 49 that in such a fact-situation it was not necessary to give hearing to the appellant. Art. 124(4) of the Constitution provides for removal of a Supreme Court Judge from office on the ground of proved misbehaviour or incapacity. While admitting a motion for removal of a Judge, the Speaker of Lok Sabha is not required to give a hearing to him. But the Committee appointed to enquire into the allegations of misbehaviour against the Judge must act according to the principles of natural justice.50 (f) Appointments, Promotions In the matter of making appointments by a selection committee it has been held that though the function is administrative, yet the committee should act fairly. In India v. M.L. Capoor ,51 a selection committee was to prepare a list of members of the State Public Service for promotion to the Indian Police Service. The list was to be revised and reviewed every year and in this process a person whose name was there in the previous list could be dropped. Beg, J., opined that the person whose name was being dropped in the revised list was to be "treated fairly and squarely, reasonably and impartially", though the function might not be characterised as quasi-judicial; and here the fairness at least required that the person concerned should be informed of the reasons so that he could make representation to the concerned authorities. The appointment of a number of teachers was cancelled on the ground that the officer who appointed them was not authorised to do so. The Supreme Court ruled that in the facts and circumstances of the case, it was necessary to give to the teachers concerned an opportunity of being heard before cancelling their appointments. No order to the detriment of the persons concerned could be passed without complying with the rules of natural justice. As no such opportunity had been given, the order of cancellation of appointments was set aside.52 A selection committee prepared a list of candidates for appointment to civil posts. The government cancelled the select list on the ground of favouritism. The Supreme Court ruled that neither the board nor any candidate whose name appeared on the list could claim a right of being heard before the government cancelled the list.53 This is so because no member of a selection board acquires any vested right or interest in sustaining a selection list prepared by the selection board. Besides, there is no personal right or interest of any member of a selection board which may be adversely affected by cancelling a selection list found to have been prepared by the selection board in unfair and injudicious manner. Also, a candidate whose name is put on the selection list does not acquire any indefeasible right to be appointed. Even if a selected candidate has a legitimate expectation of being appointed he cannot claim a right of being heard when the select list is cancelled for bona fide and valid reasons. The difference between Shrawan Kumar and this case lies in the fact and there letters of appointment had been issued whereas here only a list of selectees was cancelled. The Courts have taken the position that once an appointment has been made to a post it cannot then be cancelled without giving a hearing to the appointee. The order of appointment confers a vested right on the appointee to hold the post. That right cannot be taken away without affording him an opportunity of being heard.54 In G. Sarana v. Lucknow University ,55 the Supreme Court took the position that a selection committee though not discharging a quasi-judicial function, should be free from bias in making selections. The case par excellence, however, in this area is the Kraipak case.56 In S.P. Gupta v. Union of India ,57 the Supreme Court considered the question whether the consulting

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authorities (the Chief Justice of a High Court and the Chief Justice of India) while giving their opinion about the suitability for appointment of an additional judge of a High Court for a further term after the expiry of his term were to give a fair hearing to the judge or not. The majority held that it was not required. A.C. Gupta, J., however, held that consistent with the principles of natural justice, an additional judge against whom some adverse material is weighing in the minds of the recommending authorities should be given an opportunity to explain the material against him. Without going that far, Tulzapurkar, J., took the position that the additional judge should not receive a raw deal at the hands of two consulting functionaries, and they should hear him with regard to the adverse material against him. Pathak, J., held that though such a judge has no right to be heard, still it is desirable on the part of the two Chief Justices in their discretion to ascertain from the judge whether there is any substance in the material against him. (g) Regulation of trade and commerce A few illustrative cases pertaining to the right of hearing may be mentioned here from the area of trade and commerce. Under the Industries (Development and Regulation) Act, 1951, the Central Government can take over the management of an industrial undertaking under certain circumstances. Under S. 18-A(b) this can be done if, after an investigation under S. 15, the government is of the opinion that the undertaking is being managed in a manner highly detrimental to public interest. In Kesava Mills Ltd. v. Union of India ,58 the Supreme Court held that it was necessary for the government to observe principles of natural justice before passing an order of take-over under S. 18-A(b). Under S. 18-AA, the government can take-over an undertaking in certain circumstances (e.g. fall in production due to reckless action on the part of management etc.) without any investigation if immediate preventive action was necessary. The Court held in Swadeshi Cotton Mills v. Union of India,59 that even action under S. 18-AA cannot be taken by the government without observing principles of natural justice. What this provision contemplates is doing away with an investigation under S. 15 but not natural justice to the concerned mill-owner since the power under S. 18AA is drastic, and the consequences of take-over are far reaching and its effect on the rights and interests of the owner grave and deprecatory. Under S. 110(1) of the Customs Act, 1962, the customs authorities can search and seize imported goods if they have "reason to believe" that the goods were illegally imported. However, under S.110(2) if no notice proposing confiscation of the goods is served on the owner within six months under S.124(a), then the goods are to be returned to the owner, provided that the period of six months, "on sufficient cause being shown", may be extended by the collector of customs for a further period not exceeding six months. S. 124 envisages confiscation of the seized goods or imposition of a penalty. The Supreme Court held in Assistant Collector of Customs v. Malhotra 60 that though the initial seizure was subjective, yet the power of extension of time under S. 110(2) was objective. The latter power has to be exercised not mechanically but on the existence of facts which indicate that the investigation could not be completed for bona fide reasons within the prescribed time-limit. Accordingly, the power of extension of time-limit has been held to be quasi-judicial.61 Price fixing of commodities is now regarded by and large as a legislative, and not a quasi-judicial, function and, therefore, principles of natural justice are not attracted.62 (h) Power Theft The electricity connection to the consumer company was installed on one of the conditions that supply would be disconnected forthwith on detection of use of devices to commit electrical theft and it would be liable to make payment of compensation for the unauthorised user. On detection of theft being committed it was issued a notice to pay the difference of the assessed amount. The High Court held that the consumer company had a right of hearing before the authority subjected it to the payment of the compensation amount. Disagreeing with the High Court, the Apex Court held that, in view of the conditions of supply of electricity, as agreed by the company as also prima facie conclusion of power theft reached by the authorities, it was not necessary to give further hearing to the company.63

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(i) Licensing A very commonly used administrative technique to regulate any activity is licensing. It is used pervasively in the area of trade and commerce as well as in other areas which are sought to be regulated. Licensing takes many different forms, the basic and typical pattern being a 'grant of permission'--a licence--to individuals to engage in some profession, trade or business. Licences have different labels, e.g., licence, permit, membership of a professional body, such as, the Bar Council. But the name has no significance as far as the legal effect is concerned. Some licences may be crucial to the livelihood of the licensee and have thus justifiably been characterised as 'new property'. Questions as to hearing arise in the area of licensing at several stages, e.g., when application is made for grant of a licence or renewal thereof, when proceedings are taken for the suspension or revocation of a licence. There is an increasing feeling that natural justice ought to be given to a licensee as far as possible, as licensing is intimately connected with livelihood or with property rights. There is an increasing judicial feeling that at the stage of granting a licence, if there are grounds for rejecting the application for a licence, the licensing authority should hold a hearing at which the applicant should be given an opportunity to present his side of the case for the grant of licence to him. For example, in Chingleput Bottlers v. Majestic Bottling Co. 64 an order refusing to grant a licence for manufacture and supply of bottled liquor was challenged by Chingleput. The Court ruled that the licensing authority was required to act fairly even though the order was characterised as 'administrative'. The Court accepted the "fundamental rule of law" that "no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case." The power of transport authorities to limit the number of stage carriage permits under S. 47(3) of the Motor Vehicles Act, 1939, has been held to be not quasi-judicial,65 as in the opinion of the Court, the decision to limit the stage carriage permits is a matter of administrative policy of the regional transport authority. In doing so, the authority does not deal with individual or competing rights of operators but is required to arrive objectively at its own conclusion independent of any application or representation by operators. In this connection, reference may be made to an interesting English decision of the Court of Appeal in R. v. Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators' Association .66 For several years, the number of taxicabs had been fixed at 300. The local authority had assured the association that it would give the association an opportunity of making representations if it decided to increase the number of taxicabs beyond 300. The authority made an order increasing the number of taxicabs without giving the promised opportunity to the association. Quashing the authority's decision, the Court ruled (per Lord Denning, M.R.) that though determining the number of taxicab licences to be issued was a policy decision, yet the authority should have acted fairly after due regard to conflicting interests, that is, it should have given an opportunity of being heard to the cab owners' association and others. And in the opinion of Lord Denning, M.R., the same consideration would apply if the decision was to reduce the number of cabs. This case is based by and large on the principle that a public authority must honour the commitments made by it.67 The main element in this case was the assurance given by the authority to give an opportunity to the association before making a decision. This raised a legitimate expectation in the association and the cab-owners that they would be given a hearing before increasing the number of taxi-cabs. Failure to fulfil its assurance led to the quashing of its order because the legitimate expectation of the cab-owners was adversely affected.68 Grant of a temporary permit for a stage carriage under S. Section 47 of the Motor Vehicles Act, 1939, was held to be a quasi-judicial function. Accordingly, the regional transport authority was obligated to take into consideration any representations made by persons already providing passenger transport facilities on or near the proposed route as such persons were vitally affected' by the grant of a permit even though temporary in nature.69 But the Andhra Pradesh High Court has ruled that under M.V.A., 1988, RTA is not bound to give a hearing to the existing operators while considering new applications for grant of stage carriage permits.70 The main consideration underlying the Act of 1988 is that promotion of competition is in the interest of the society. As to the suspension of a licence, the matter is not regarded as quasi-judicial. Thus, the power to suspend a licence to carry on trade in foodgrains for a limited period of 90 days as a prelude to taking proceedings to

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cancelling the licence was held to be an administrative, and not a quasi-judicial, matter on the ground that it was only an interim measure pending further inquiry into the matter.71 However, the power to suspend the certificate of registration of a vehicle under S. 33(1) M.V.A., 1939 has been held to be quasi-judicial in nature.72 The normal judicial approach is to treat cancellation of a licence (trading, business or any other licence) as a quasi-judicial function because it entails civil as well as pecuniary consequences as business cannot be carried on without a licence.73 Thus, it has been held that it would be necessary for the licensing authority to follow the principles of natural justice while cancelling a licence to carry on trade in drugs,74 a licence to sell-liquor,75 a licence to trade in foodgrains under the U.P. Foodgrains Dealers' Licensing Order, 1964,76 an import licence under the Imports (Control) Order, 1955,77 a licence to carry on a profession,78 or cancellation of a stage carriage permit has been held to be a quasi-judicial function.79 In City Comer,80 cancellation of a licence for conducting games of skill and dices was set aside by the Supreme Court because of the failure of natural justice. The licence was issued under the Andhra Pradesh (Andhra Area) Places of Public Resort Act, 1888. Similarly, cancellation of a licence to do business in cloth was quashed on the ground of lack of natural justice.81 For refusing to renew a licence, the Courts usually insist on natural justice being afforded to the licensee, as the effect of this is no less drastic on the licensee than that of cancellation. Thus, it has been ruled that a municipality is to observe natural justice while refusing to renew a licence for running restaurant by an individual.82 In this context, reference may be made to an English case, R. v. Gaming Board, ex parte Benaim ,83 where Lord Denning insisted that while refusing to renew the licence of a gaming club, the licensing authority (Gaming Board in this case) is bound to give a hearing to the licensee gaming club in the name of fairness. The petitioners were running a restaurant. They obtained license for the purpose for the years 1977-78 and 1978-79, but the corporation refused to renew the license for the year 1979-80. The Supreme Court ruled that cancellation or refusal to renew a trading licence entailed both civil and pecuniary consequences and adversely affected the livelihood of the license. It was therefore necessary that the licensing authority should follow natural justice while discharging such a function.84 The grant of a licence for acquisition and possession of firearms under the Arms Act85 has been held to be nothing more than a privilege. But the same cannot be said of cancellation or refusal to renew such a licence. Such an action entails civil consequence to the licensee and, therefore, he has a right to be heard when such action is contemplated.86 If, for some reasons, an action has to be taken immediately, then the licensee ought to be heard after the provisional action, but before final action, of cancellation of the licence.87 (j) Blacklisting A modern administrative technique is to blacklist a person so as to disqualify him for certain purposes, e.g., a contractor may be blacklisted and, thus, disqualified from bidding for government contracts. This is done because, in the opinion of the concerned authority, he has done something wrong, e.g., he may not have completed a contract awarded to him. This is one-sided discretionary matter with the Administration but to the blacklisted person it may cause irreparable damage. Wade has rightly characterised blacklisting as "an instrument of oppression which combined both constitutional and legal impropriety".88 As blacklisting a person in respect of business ventures has civil consequences for the future business of the person concerned, the prevailing judicial view therefore is that the person concerned must be given a hearing before he is blacklisted. The high watermark of the application of the principle of hearing has been reached in Eurasian Equipment & Co. Ltd. v. State of West Bengal ,89 where the Supreme Court held that natural justice is to be observed whenever the government proposes to blacklist a firm on the approved government list. As this has the effect of debarring the firm from entering into contracts with the government, fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist. The great significance of this pronouncement lies in the fact that natural justice has been invoked in a matter of merely administrative action which is taken without any legal provision as its basis in a matter of conferring benefits. The Court conceded that no person has a fundamental or legal right to insist that the government must enter into a contract with him as the government is free to enter into a contract with any one it chooses. Nevertheless, insisted the Court, a person is entitled to a fair and equal treatment

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with others who offer tenders or quotations for the purchase of goods.90 The Eurasian principle has been reiterated and applied by the Supreme Court in several later cases. Thus, when the executive engineer blacklisted a contractor from taking any further contracts under the Government Buildings and Roads Division, the Supreme Court ruled in Vilangandan91 that "fundamentals of fairplay require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist." The State Bank of India blacklisted a transport company and refused to enter into any contractual relationship with it. The High Court ruled that the Bank must act according to natural justice.92 In the words of Desai, J.: "As the horizon of the State's activities is expanding in the modern welfare state, judicial concepts are being remodelled to suit new situations.... If at the threshold of deal, a citizen is to be discriminated against, aid of the principles of natural justice is invited to safeguard the legitimate expectation of the citizen."93

The Andhra Pradesh High court drew a distinction between general blacklisting of a firm and refusal to accept a specific tender of the firm (though it was the lowest).94 The tender was rejected on the basis of the firm's past record as it did not inspire much confidence for entrustment of a job of such magnitude to it, and that the person whose tender was accepted was more suitable for the job and his performance in the past had always been satisfactory. The Court ruled that there was no need to observe natural justice in this specific situation as rejection of a tenderer by the government on the ground of relative unsuitability involved no forfeiture of his pre-existing rights or interests nor did it defeat any of his 'legitimate expectations' nor did it inflict any civil consequences on him. The High Court rejected the argument that the other person was shown a favoured treatment saying: Able and efficient people must have their rewards. Promotion of excellence is one of the constitutional ideals we swear by.

The Court explained the position thus: Blacklisting brings about disability not with reference to any particular contractual venture but generally in relation to an occupation. It brings about a practical metamorphosis of ineligibility over the contractor.

Such a position is quite different from rejecting a specific tender after considering his suitability for that particular work. He still remains eligible to be considered for other works. He loses no legal or social rights. In a recent case Raghunath Thakur v. State of Bihar ,95 the Supreme Court has observed on the question of blacklisting: But it is an implied principle of the rule of law that any order having civil consequences should be passed only after following the principles of natural justice. It has to be realised that blacklisting any person in respect of business ventures has civil consequences for the future business of the person concerned in any event. Even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard.

Liberty Oil Mills v. Union of India ,96 is an important case on blacklisting. Cl. 8 of the Imports (Control) Order, 1955, made under the Imports and Exports (Control) Act, 1947, empowers the Central Government or the Chief Controller of Imports and Exports (CCIE) to debar a person from importing goods or from receiving licences or allotment of imported goods for a specified period if such person is guilty of any of the acts of omission or commission mentioned therein. Under Cl. 8A, an order to suspend importation of goods by any person or grant of licences may be made pending investigation under Cl. 8. Cl. 10 of the Order expressly stipulates that action under C1.8A may not be taken unless a reasonable opportunity is given to the party concerned. Neither Cl. 8 nor Cl. 10 prescribes the procedure to be followed before a final order under Cl. 8 is made. The Supreme Court said in relation to Cl. 8 in the instant case: "An order of this immensity cannot

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obviously be made without due investigation and without giving a reasonable opportunity to the affected party."97 But the concerned authority is not bound to follow "any rigid, hide-bound, pre-determined procedure." The procedure may be different in each case and may be determined by the facts, circumstances and exigencies of each case. The authority may design its own procedure to suit the requirements of an individual case. What is required is that "the procedure must be fair and not so designed as to defeat well known principles of justice and thus deny justice." Cl. 8A contemplates a pre-decisional hearing. Cl. 8B empowers the Central Government or the CCIE to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending under Cl. 8. While under cl. 10, a right of being heard to the concerned importer has been expressly afforded while action is contemplated under Cls. 8 or 8A, no such requirement is expressly laid down in respect of Cl. 8B. Still the Supreme Court ruled that even under Cl. 8B, no action can be taken without applying natural justice to the person affected. The Court observed in this connection: "We do not think that it is permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of the parties."

The decision to keep in abeyance under Cl. 8B must be communicated to the person concerned. Emphasizing upon the importance of communication of the order to the affected party, the Court said: "Ours is a constitutional government, an open democracy founded upon the rule of law and not a cloak and dagger regimen. It is inconceivable that under our constitutional scheme a decision of the kind contemplated by clause 8B which may have the effect of bringing to standstill the entire business activity of the person affected and which may even spell ruin to him, should be made and implemented without being communicated to that person. Intertwined is the question of observance of natural justice and how can natural justice be satisfied if the decision is not even communicated."

The expression 'without assigning any reason' in Cl. 8B implies that the decision has to be communicated, but reasons for the decision need not be stated. But, of course, reasons must exist for the decision. The phrase only means that "there is no obligation to formulate reasons and nothing more.......(T)he authority may not give formal reasons, but the skeletal allegations must be mentioned in order to provide an opportunity to the person affected to make the representation." (k) Property Rights Usually, natural justice must be afforded to a person whose property rights are adversely affected by any action taken by the Administration, e.g., demolition of a house etc. In Government of Mysore v. J.V. Bhat, 98 the facts were as follows: S. 3 of the Mysore Slum Areas (Improvement and Clearance) Act, 1959, provided for declaration of an area as a slum area by competent authority if certain conditions existed to its satisfaction. After such a declaration, the house owners in the area were subjected to several restrictions, e.g., the owner of every building must get his building registered and also furnish to the authority such particulars as it might require; no person could erect a new building, or make additions or alterations to an existing building in the slum area without the written permission of the competent authority. A more drastic declaration could be made under S. 9 of the Act. The competent authority could declare a slum area as a clearance area if it was satisfied that the most satisfactory way to deal with the conditions prevailing in the area was to demolish all buildings. In Bhat, the authority issued certain notifications under the above provisions. The validity of the statutory provisions as well as of the notifications was challenged under Arts. 14 and 19(1)(f) of the Constitution.1 The Supreme Court upheld the statutory provisions subject to the rider that the powers under Ss. 3and 9 would not be exercised without giving a hearing to the affected persons. The statutory provisions were thus saved from constitutional challenge by making natural justice an integral part thereof. The Supreme Court held that before issuing these notifications the authority should have given an opportunity of being heard to the affected parties and, accordingly, quashed the notifications as no such

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hearing had been given. The Karnataka Government issued a notification declaring an area as a slum area. Later the government cancelled this notification. The Supreme Court ruled that the earlier notification could not be cancelled without giving to the slum dwellers an opportunity of being heard as they would be adversely affected by such cancellation. This case may be regarded as an example of the principle that no one can be denied legitimate expectation without being heard.2 The power of granting exemption to an individual from the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 has to be exercised by the State Government after giving him a reasonable opportunity of being heard.3 As regards land acquisition by the government, under S. 5-A of the Land Acquisition Act, 1894, the collector is required to give an opportunity of being heard to the objectors whose land is proposed to be acquired by the government for a public purpose. The collector then submits his report to the government which takes the final decision to acquire the land under S. 6. There are thus two stages--one, proceedings before the collector; two, final decision by the government. In Jayantilal Amratlal v. F.N. Rana,4 the Supreme Court took the view that the proceedings before the collector were not quasi-judicial. The grounds of the decision were that the collector was merely a recommendatory authority, and the ultimate decision of acquisition, which was administrative, was to be made by the government; if the government wished, it could dispense with the enquiry by the collector in an emergency under S. 17 of the Act, and the collector under S. 5-A could make such an enquiry as he thought fit, apart from the enquiry on the objections submitted to him. On the other hand, the Court struck a different note in Bai Malimabu v. State of Gujarat, 5 where the Court held that whether the enquiry under S. 5-A is administrative or judicial in nature, the collector cannot violate principles of natural justice. At the stage of decision by the government, the judicial view is unanimous that no hearing is required to be given by the government, and this is so even though the report of the collector is against acquisition.6 There is also a provision in the Land Acquisition Act authorising acquisition of land for a company. Before the acquisition proceedings are initiated, the collector is to hold an enquiry to find out whether the company in question has made its best efforts to find out land in the locality suitable for its purpose, and to get such land by negotiations on payment of a reasonable price, and that such efforts have failed.7 Although the relevant rule is silent as regards the mode and method of enquiry by the collector, the collector's report is merely of a recommendatory nature, and the final decision to acquire land or not falls within the subjective satisfaction of the government, nevertheless, the inquiry by the collector has been held to be quasi-judicial in nature because the collector's report is a vital link. in the whole process of land acquisition. Therefore, the collector must follow the norms of natural justice and afford a reasonable opportunity of being heard to the person interested in the land sought to be acquired.8 The Supreme Court has observed recently:9 "It is settled law that before depriving a person of his property or imposing any further liability the principles of natural' justice require prior notice and reasonable opportunity to him to put forth his claim or objections".

(l) Demolition of a building Before an order to demolish a house can be passed, the concerned authority must give an opportunity to the owner and occupant of the house to show cause against such an order. A demolition order has a very drastic adverse effect on the owner and occupier of the house. Even though the relevant statutory provision is silent on the point, the hearing procedure can be read into it in the light of the elementary principles of natural justice which must be implied therein. Such an order would be null and void if passed without hearing the concerned parties.10 In this connection, reference may be made to the classical English case Cooper v. Wandsworth Board of Works .11 A statutory provision laid down that no one could put up a house in London without giving a seven days' notice to the local Board of Works of his intention to build a house. In default of such a notice, the Board had power to demolish the house. The plaintiff built his house without giving the

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notice as required and the Board demolished the house. The court ruled that the power of demolition carried with it enormous consequences as a house of any value could be demolished. The power was open to misuse and so hearing was essential as the Board was acting 'judicially'. The Lucknow Development Authority, a statutory body, granted permission to the respondent to construct a multi-storeyed building, but it later cancelled the permission. The Supreme Court ruled in State of U.P. v. Maharaja 'Dharmander Prasad Singh 12 that cancellation of permission is "akin to and partakes of a quasi-judicial complexion" and this can therefore be done after following natural justice and giving a hearing to the party concerned. The Supreme Court also ruled in Dharmander that the government must observe natural justice while cancelling a land lease. The cantonment board granted permission to the respondent to make additions to his building. The officer commanding-in-chief cancelled the permission after giving a hearing to the cantonment board but not to the respondent. The Supreme Court ruled that in the instant case, the respondent was also entitled to a hearing by the OCIC because it was he who was denied permission to construct after he had already started construction under the board's permission. The real party adversely affected in such a situation was the house-owner himself.13 (m) Mining Lease In State of Haryana v. Ram Kishan ,14 the Supreme Court laid down the proposition that when a mining lease is sought to be terminated prematurely, the lessee is entitled to be heard before such an order can be made. The State Government made an order granting a mining lease to the petitioner. He was put in possession of the lease-area and permitted to work the mines on a year to year basis without executing any lease deed. He worked the mines for several years. Thereafter, the government cancelled the grant without giving him a hearing. Quashing the order of cancellation, the Calcutta High Court ruled that the appellant had acquired lawfully a valuable right to the land and also the right to exploit the mines and he could not be deprived of the same without an opportunity of being heard being given to him.15 (n) Government Contracts Natural justice becomes applicable in case of action taken by the government under contract with a private party where the action has a statutory basis. In D.F.O., South Kheri v. Ram Sanehi, 16 the government took an adverse action against the petitioner under a contract to remove timber from forests which was executed by the government under statutory authority. The Court ruled that granting that the order in question was administrative and not quasi-judicial in nature, the government had still to make it in "a manner consonant with the rules of natural justice when it affected the respondent's right to property." It is possible to give a liberal interpretation to the ruling in the case which may open a new ground for giving relief to an individual in cases of breaches by the government of its contractual obligations, but, in the instant case, there seems to be no doubt that the administrative authority was acting under a statute as is clear from the statement of the Court, while repelling the contention of the government that the appropriate remedy was a suit and not a writ petition, that "the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power." In State of Punjab v. Ajudhya Nath, 17 the Court ruled that natural justice was not to be followed when government demanded money due from a licensee under a contract granting him a licence to sell liquor. The Supreme court refused to extend in Radhakrishna Agarwal v. State of Bihar, 18 the concept of natural justice to termination of a contract by the government according to its terms. When the state terminates a contract under its terms, it does not exercise any statutory power and so natural justice is not applicable which hangs on the peg of statutory provisions. Natural justice attaches to the performance of statutory functions by the Administration and not to contractual functions. The Court distinguished between a situation of discrimination at the very threshold, or at the time of entry into the field of consideration of persons with whom the government could enter into a contract, and a situation subsequent to the entering into contract by the government. In the latter case, in the opinion of the Court, there is no question of violation of Art. 14 or

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any other provisions of the Constitution when the government acts according to the terms of the contract.19 (o) Tax Assessment The tax authorities having power to make tax assessments discharge a quasi-judicial function and, accordingly, they are required to apply natural justice in tax assessment proceedings. It has been held that natural justice is applicable in the assessment of income tax,20 sales tax,21 excise duties,22 property tax,23 or customs duty.24 In Dwarka Nath v. Income Tax Officer, 25 it was held that the Commissioner of Income Tax was to follow principles of natural justice in the matter of revision of an income tax assessment order on the application of an assessee even though he cannot revise it to the prejudice of the assessee. Further, the function is quasi-judicial when the Board of Revenue decides, on a reference from the collector, the amount of stamp duty to be levied on an instrument.26 So also the imposition of penalty by the various customs authorities for breaches of the Customs Act requires a quasi-judicial approach.27 Similar is the position under any other tax law.28 Under S. 245-C (1) of the Income Tax Act, 1961, an assesses is permitted to make an application to the Settlement Commission to have his case settled. This provision was introduced in the Act to recover income-tax avoided by the assessees in previous years. It was thought by the Government that "composition and collection of public revenue from tycoons is better than prosecution for their tax-related crime and litigation for total revenue recovery." Under S. 245-D, the Commission could reject the application of the assessee if the Commissioner of Income Tax (CIT) objects to the application. The Commission may however allow, after hearing the CIT, the assessee's application to be proceeded with by it. In R.B. Shreeram Durga Prasad v. Settlement Commission, 29 the Supreme Court has ruled that under S. 245-D, along with the CIT, the assesses also should be heard on the objections made by the CIT "as a concomitant of the fulfilment of natural justice." The Settlement Commission is bound to give a hearing to the assesses before rejecting his application for composition. This is based on fair play. Law leans in favour of natural justice where statutory interdict does not forbid it. (p) Administrative Action to give jurisdiction to the courts to adjudicate In a few cases, permission of an administrative authority is required to file a civil suit against the other party. Such a function of the concerned authority is regarded as quasi-judicial. For example, in Shri Bhagwan v. Ram Chand, 30 the function discharged by the district magistrate and the two revisional authorities, the commissioner and the State Government, in giving concurrence to a landlord for filing a suit for eviction against his tenant on grounds other than those specified in the statute, was held to be quasi-judicial for the authorities had to consider the pros and cons of the material placed before them by the landlord and the tenant. The holding of the court in this particular case could be justified for two important reasons: (i) the aggrieved party could go to a higher authority in revision against the order of the original authority thereby creating the situation of lis inter partes;31 (ii) the statutory rights created in favour of the tenant was of great significance which modified the landlord-tenant relationship existing under the ordinary law. Under S. 92 of the CPC, 1908, the Advocate-General, or two or more persons having an interest in a charitable or religious public trust and with the written consent of the Advocate-General, may institute a suit in the case of misuse of powers by the trustees. Unlike the situation in Shri Bhagwan, there is no provision for appeal or revision against the orders of the Advocate-General. In Amrita Nand v. Advocate-General, 32 the function of the Advocate-General in giving consent for filing of the suit was held to be not quasi-judicial, for in giving or refusing his consent, the Advocate-General does not adjudicate upon the rights of the contending parties, or on the merits of the controversy; his function is merely to see whether there was a prima facie case to go to a court. The parties would have full opportunity to present their case, and the defendant would have full opportunity to defend himself on all possible grounds, before the court. To the same effect is the judgment of the Kerala High Court in Mayor Simon v. Advocate-General .33 A few other High Courts have, however, taken a contrary view and held that the Advocate-General acts in a quasi-judicial capacity while giving his consent under S. 92, CPC.34

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Under S. 5(1) of the Special Courts Act, 1979, the Central Government was empowered to make a declaration that an offence, amongst the offences referred to in the preamble to the Act, committed by a person holding a high public or political office, should be dealt with under the Act. After such a declaration the offence could be tried by a special court. It was held that it was not necessary for the government to observe principles of natural justice before making the declaration. At that stage there was no lis pending nor had any prosecution been launched against the accused.35 The Central Government refused to give its consent, under S. 86, CPC, to the petitioner to sue the State of Algeria without giving him a hearing. The Supreme Court ruled in Harbhajan Singh v. Union of India, 36 that the government ought to have functioned according to the principles of natural justice in the instant case. The Court observed, "The power given to the Central Government must be exercised in accordance with the principles of natural justice... If the administrative authorities are enjoined to decide the rights of the parties, it is essential that such administrative authority should accord fair and proper hearing to the person to be affected by the order..." (q) Supersession of a municipality or a body In the matter of supersession of a municipality by the government, the government has to follow natural justice.37 The leading case on this point is S.L. Kapoor v. Jagmohan .38 The Lt. Governor of Delhi superseded the New Delhi Municipal Corporation under S. Section 238 of the Punjab Municipal Act, 1911 without giving it an opportunity of defending itself. In the preamble to the order it was stated that the committee was incompetent, had made persistent defaults in performing its duties and that it had abused its powers resulting in the wastage of funds. The Supreme Court held that before passing on order of suppression of a municipal corporation for incompetence or persistent default in performing its duties, it would be necessary to afford a hearing to the municipality concerned because dissolution of the committee unceremoniously involves several civil consequences for the committee, e.g., fall in its public esteem, loss of status and office and public rights and responsibilities attached to the committee, loss of expectation of the committee to serve its full term.39 Similarly, natural justice has to be observed when the state government suspends a panchayat,40 or the State Agricultural Marketing Board under the Punjab Agricultural Produce Markets Act, 1961,41 or when it appoints an administrator for a society registered under the Societies Registration Act in public interest,42 or when the Registrar supersedes the managing committee of a co-operative society.43 The State Government cancelled a resolution passed by the Patna Improvement Trust appointing the petitioner a permanent engineer on probation. The government had statutory power to cancel the resolution. Nevertheless, the government order was quashed by the Patna High Court on the ground that the government must have given a hearing to the person prejudicially affected before making its order.44 However, if by a notification under the statute, the State Government constitutes a municipal corporation for an area which results in the dissolution of an existing municipality in that area, the function will be regarded as legislative and not quasi-judicial and, therefore, no hearing may be called for.45 (r) Imposition of penalty Natural justice must be afforded by the concerned authority to the party on whom a pecuniary punishment is sought to be imposed for default in ful-filling a statutory duty. For example, natural justice has been insisted upon in proceedings to impose damages by the commissioner for failure to deposit provident fund by the employer under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952.46 Similarly, under the Coal Mines Provident Fund Act, if an employer makes default in payment of provident fund contribution, he may have to pay damages up to 25% of the amount of arrears. It is left to the Provident Fund Commissioner to quantify the damages payable by the defaulting employer. It has been ruled judicially that the Commissioner has to give a hearing to the concerned employer before deciding upon the amount of damages payable by him.47 The quantification of damages is not a mechanical process. Such damages cannot exceed 25%. This shows that the determination of damages is "not an inflexible application of a rigid formula" and the Commissioner must apply his mind to the facts and circumstances of the specific case and, therefore, the commissioner must give a hearing to the party concerned.

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A forest contractor felled trees in excess of what he had contracted for. Under the forest rules, a penalty could be imposed on him as well as he could be required to pay the amount of damages sustained by the State because of his illicit felling of trees. It was held that natural justice must be afforded to the contractor before any penalty could be imposed on him and was quantified because "any exercise of power prejudicially affecting another must be in conformity with the rules of natural justice."48 (s) Power to exempt Under the Sugarcane (Control) Order, 1966, a minimum price was to be payable by a sugar factory for sugarcane purchased by it. Over and above the minimum price, the Order provided for payment of an additional price according to a formula contained in the Order. This was a method of profit-sharing between the growers and the manufacturers. The Government had also been given power to exempt any sugar mill from payment of the additional price if the government was satisfied that during any year, the mill had made inadequate or no profit. Quashing an exemption order issued by the Government in favour of a mill, the Supreme Court held that the sugarcane growers had a statutorily accrued right to get an additional price, and so the sugarcane growers, whose right was adversely affected by the exemption order, must have been given a hearing before granting exemption to the mill.49 They were being deprived of a legitimate expectation that the additional price would be paid. They could challenge the bona bides and accuracy of the claim of the sugar mill for exemption. The Court observed: "The situations in which a duty will arise to act judicially according to natural justice cannot be exhaustively enumerated. A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that additional price would be paid. The factors which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions; if any, involved."50

Section 36 of the Payment of Bonus Act, 1965, provides that if the appropriate government having due regard to the financial position and other relevant circumstances of any establishment or class of establishments, is of the opinion that it will not be in the public interest to apply all or any of the provisions of the Act, then it may exempt the establishment or class of establishments by an appropriate order under this section from all or any of the provisions of the Bonus Act. A tea estate in Assam which was being run uneconomically applied to the Assam Government for exemption from the obligation to pay bonus under this Act. The Government rejected the request. The tea estate challenged the order on the ground that the power of the government being quasi-judicial, the order was void as it was passed without giving it a hearing. The Assam High Court ruled in A.K. Ghatak v. State, 51 that the Bonus Act cast a duty on all establishments to pay the minimum bonus in accordance with its provisions. If an establishment found itself unable to pay the minimum bonus, it could approach the government for an exemption order under S. 36. The formation of the government opinion under S. 36 was subject to the due consideration of the financial position and other relevant circumstances of the concerned establishment. If the government passed an exemption order, it would adversely affect the employees; if it refused to pass the order, it might affect the establishment very vitally. Thus, an exemption order under S. 36 entailed civil consequences either to the establishment or the employees and, therefore, the Government should act in a quasi-judicial manner. While exercising its power under S. 36, the Government should duly consider the financial position and other relevant circumstances which the concerned establishment might produce before it, hear the affected parties and then pass an order. It may be worthwhile to mention here that an order of exemption passed in favour of a class of establishment, instead of a specific establishment, may be regarded as legislative in character52 and no hearing would be necessary in such a case.53 (t) Miscellaneous Situations It is not possible to enumerate exhaustively the situations where the Administration may be obligated to follow the principles of natural justice. Besides the several specific situations mentioned above, there are innumerable other situations where the courts have conceded a right of hearing to the person affected. To name a few: termination of the citizenship of an Indian citizen on the ground that he has acquired citizenship

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of another country;54 Registrar issuing an order for winding up a co-operative society;55 ordering re-poll in a constituency by the Election Commission owing to hooliganism and breakdown of law and order at the time of counting of votes polled;56 withdrawing protection granted to a tenant against eviction under a statute;57 impounding a pass-port;58 cancellation of an agency by the Life Insurance Corporation;59 cancellation of lease of fishing rights,60 suppression of the governing body of a college by the concerned university.61 The government can exercise its power to transfer a labour dispute from one tribunal to another only after giving a hearing to the concerned parties.62 The Supreme Court has ruled that when an application for winding up of a company has been presented in a court, the workers are entitled to be heard as they are bound to be adversely affected if the company is wound up.63 Before disciplinary action is taken against a professional person on the ground of professional misconduct, the disciplinary authority has to follow natural justice and give an opportunity of being heard to the person concerned against the charges levelled against him.64 The State Legislature passed an Act authorizing the Chancellor of the Bihar University to scrutinize all appointments made in the University between two specified dates. He was to act in this matter on the recommendation of the State University Service Commission. The Supreme Court ruled that the Commission must, before making the recommendation as regards a teacher, hear him according to the rules of natural justice.65 Under S. 53(1) of the Copyright Act, 1957, the Registrar of Copyrights is empowered to order, after making such enquiry as he deems fit, that "copies made out of India of the work which if made in India would infringe copyright shall not be repeated." An appeal against the Registrar's order lies to the Copyright Board. The Supreme Court has ruled that S. 53(1) confers a quasi-judicial power on the Registrar. He has to consider the mischief sought to be prevented; he must hear those who would be affected if an order were passed and consider any contention which might be put forward as an excuse for import, as well as any other relevant circumstance.66 When once government has granted permission to a society to erect a statue of a leader at a place, the same cannot be cancelled without giving an opportunity of being heard to the concerned society.67 It has also been ruled that natural justice has to be followed by the government when it is seeking to withdraw an ex gratia benefit conferred by it on a person, e.g., cancelling pension granted to a freedom fighter.68 This view represents a fundamental break from the past when it used to be held that no hearing was required when the government withdraws a privilege conferred by it on some person.69 This shows that the dichotomy between privilege and right has come to an end so far as natural justice is concerned.70 There is also the inquiry procedure prescribed by some statutes to be followed by the Administration as a prelude to taking some action or making a policy or reaching a decision on some matter. The question of applicability of natural justice to inquiries is considered later.71 (u) Administrative Appeals or Revisions If a statute makes provision for hearing of appeals by senior administrative officials from decisions made by lower officials, then the appellate authorities may be regarded as discharging a quasi-judicial function even if the lower officials act in an administrative manner. In Nagendra Nath Bora v. Commissioner, Hills District,72 the question arose whether the appellate authorities under the Eastern Bengal and Assam Excise Act, 1910, which regulated the sale of country spirit through a licensing system, were quasi- judicial. The Supreme Court recognised that there was no inherent right to settlement of liquor shops and selection of a particular individual for the purpose was more or less a matter of administrative discretion (in some cases even drawing of lots was provided for). The Court inferred from the procedure followed by the appellate authorities under the rules that they did act in a quasi-judicial manner. The Court pointed out that "where there is a right vested in an authority created by statute... to hear appeals and revisions, it becomes its duty to hear judicially...."73 It remains uncertain however whether the original decision-making authorities could also be treated as quasi-judicial.

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Similarly, an authority exercising revisional or review power may also be characterised as quasi-judicial. Often, a superior authority is given power of suo motu revision of any order passed by an authority subordinate to itself. Such a power is to be exercised according to the principles of natural justice. In Shivji Nathubhai v. Union of India 74 arose the question of the nature of the function of the Central Government as a reviewing body from the decision of the State Government in the matter of granting mining leases. The State Government has power to grant mining leases under the Mineral Concession Rules, 1949, but a party aggrieved by its decision could apply to the Central Government for reviewing this decision. In the instant case, out of two applicants for lease of certain mining areas belonging to it, the State of Orissa granted the lease to one of the applicants. The other applicant applied to the Central Government for review. Without giving a hearing to the other applicant, the Central Government allowed the review application. The Supreme Court held that assuming that the State Government was discharging an administrative function, the review function discharged by the Central Government was quasi-judicial. The Court opined that prima facie there was lis between the person to whom the lease had been granted and the person aggrieved by the refusal, and, therefore, it was the duty of the reviewing authority to act in a quasi-judicial manner.75 The instant decision throws no light on the nature of the function discharged by the State Government. It is possible to argue that insofar as it has to select one out of several contestants for a mining lease for a particular piece of mining land, there is lis amongst the contestants, and therefore, the State Government would itself be acting in a quasi-judicial manner.76 In other situations as well, the power of review is held as quasi-judicial even though the kind of lis inter partes present in Shivji may be absent, i.e., when a dispute exists only between the Administration and the concerned person. Thus, the function of revision of an income tax assessment order by the commissioner at the application of an assesses has been held to be quasi-judicial.77 Under S. 5 of the Displaced Persons (Claims) Supplementary Act, 1954, the government has power to undertake suo motu revision of an order passed by the lower official. The Supreme Court held in Jaswant Singh Saluja v. Chief Settlement Commissioner78 that these powers cannot be exercised in respect of a finalised claim without giving a notice to the claimant that his claim is sought to be revised and giving him a reasonable opportunity of being heard against revising his claim.79 The State Government granted a mining lease to the appellant. After some time, the Central Government exercising its suo motu revisional power under the mineral concession rules, cancelled the lease. The Supreme Court quashed the Central Government's order. The Court ruled that if the government wished to exercise its suo motu power, it should have intimated this fact as well as the grounds on which it proposed to exercise that power to the appellant and given him time to show cause against the exercise of suo mote power as well as against the grounds on which it desired to exercise its power. As the Central Government failed to do so, the impugned order was vitiated.80 Under an Act, power was given to the government to reopen cases decided by various authorities under the Act. This power implied that the final orders made by the authorities could be set aside by the government and the matter reopened and, thus, the rights of the parties affected. The function of the State Government was characterised as quasi-judicial.81 (v) Discretionary Powers A full-fledged discussion on discretionary powers falls in a later portion of the book.82 Here the limited question to be considered is whether natural justice and discretionary power are incompatible, or natural justice as a safeguard is available when the Administration is exercising discretionary powers. It is of the essence of natural justice that it should be observed generally in the exercise of discretionary power. The mere fact that the discretion conferred is wide is no reason for weakening this principle. Although it has been said that there has in the past been some correlation between wide discretionary power and absence of a duty to observe natural justice,83 this scarcely seems to be supported except by decisions which are explicable on other grounds. At any rate, now that the frontiers of natural justice have been advanced considerably (and, as a Lord Chancellor has added, rightly),84 there seems to be no detectable correlation of this character. All discretionary powers have limits of some kind, and whether those limits are widely or narrowly drawn, the discretion ought to be exercised fairly, just as it must also be exercised reasonably.85

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Till about one and a half decades back the courts were inclined to hold a function as 'administrative', and thus deny hearing, where an administrative function involved wide discretion. This judicial view was based on the premise that where an authority has freedom to act in any way it likes without any regard to facts or evidence, there is no point in giving a hearing to the individual affected. This view was expressed by the Supreme Court in an old case Province of Bombay v. Khushaldas Advani .86 The Government of Bombay had statutory power to requisition any property for a public purpose if in its opinion it was necessary or expedient to do so. The Supreme Court held by majority that the function of the government in requisitioning property was not quasi- judicial for the government's decision was based on discretion or subjective satisfaction. The main issue presented in the case was that of 'public purpose' which is hard to determine objectively. Such questions as those of 'public interest', 'public policy', or 'public purpose' are not easy to decide. Full facts which may help in determining such questions usually are not available because the necessary data is either not available or lacks reliability. Moreover, since such facts are facts of a general nature (called in the U.S.A. as legislative facts),87 and not facts which are directly related to the specific party involved in the dispute with the Administration, the authority taking action is supposed to have more intimate knowledge of such facts than the party before it. The information may be contained in the departmental record or other public records to which it may have an easy access, or it may have to be obtained through consultation with the officials within the department. Advani is an old decision and is used here to show the basic factors involved in a discretionary action. It is no longer good law now. There may be some justification for saying that when an administrative action involves too wide discretion or administrative policy no hearing need be given, but it has also to be remembered that greater the discretion greater is the opportunity for adversely affecting the person, property and liberty of the party concerned and lesser are the judicial and other controls over the exercise of the discretionary power.88 This necessitates that the authority should be asked to hear the party before it acts in order to provide some procedural safeguards against administrative arbitrariness and maladministration. It is also recognised that the quality of the discretionary decision will improve if the decision-maker gives an opportunity to the affected person to have his say before deciding the matter. The present judicial trend increasingly is to insist on some kind of hearing even in the case of discretionary power involving questions of public interest or public policy when the rights of an individual are adversely affected. This trend is well depicted by most of the cases mentioned earlier in this Chapter.89 A few more cases may be mentioned here to illustrate this judicial trend. In State of Gujarat v. Krishna Cinema, 90 the power to grant a "no objection" certificate for construction of a cinema hall under the Bombay Cinemas (Regulation) Act, 1953 has been held to be quasi-judicial although under this provision, the State Government has an "absolute discretion" to grant or not to grant the certificate. The Supreme Court has emphasized that the power to grant a licence under the Act is quasi-judicial and that by using the expression "absolute discretion," the licensing authority does not become invested with arbitrary power so as to destroy the limitations to which it is subject by its inherent nature. Under Rule 445 of the Indian Telegraph Rules, the Telegraph Authority has an unfettered power to demand security deposit. Nevertheless, it has been ruled that when the Authority seeks to enhance the deposit of a subscriber, it must afford an opportunity of being heard so that the power is not exercised improperly.91 Under S. 326(2)of the Companies Act, 1956, the Central Government is not to accord its approval for appointment of a managing agent by a company unless, inter alia, in its opinion the person proposed to be appointed is a fit and proper person as such. In Rampur Distillery Co. v. Company Law Board, 92 the Supreme Court held that the words "in its opinion" in S. 326(2) do not mean that the subjective satisfaction of the government "is determinative of the question whether the proposed person is fit and proper to be appointed managing agent." The Court emphasized that the investment of power carries with it a duty to act judicially. In this case, therefore, the Court insisted on giving a hearing even in a discretionary matter. In a discretionary function, if at any stage a fact has to be determined objectively, hearing has to be given to determine that fact, and the function, to that extent, will be regarded as quasi-judicial. S. 3 of the U.P. (Temporary) Accommodation Requisition Act, 1947 gives discretion to the district magistrate to requisition any accommodation for a public purpose provided that if the accommodation is in actual possession of any person, he is of the opinion that suitable alternative accommodation exists or has been provided to him. It has been held by the Supreme Court in Daud Ahmad v. District Magistrate 93 that the question of existence of suitable alternative accommodation, or providing for alternative accommodation, has to be determined

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after hearing. The district magistrate could not form such an opinion by imagination. It was a question of fact which could be determined after some inquiry. Madan Gopal v. District Magistrate 94 suggests that while requisitioning property under the above Act, even on the issue of suitability of an accommodation for a public purpose, it will be necessary to give a hearing to the owner by the district magistrate. The Act interferes with property rights and the district magistrate has been constituted into a plenary authority as there is no provision for an appeal or revision from him. In Krishnakant Raghunath Bibhavneker v. State of Maharashtra, 95 a public servant, charged for a criminal offence, was acquitted on insufficient evidence and consequently reinstated. He claimed back wages of the suspension period, pensionary and other consequential benefits. the Supreme Court held that it would not be a matter of course. The disciplinary authority may enquire into the misconduct unless the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all and not on the basis is of benefit of doubt given. The authority may pass appropriate orders, including treating the suspension period as not spent on duty, after following the principles of natural justice.1 The courts are now more prone to hold as quasi-judicial what are seemingly "subjective satisfaction" functions.2 Under S. 298 of the Goa, Daman and Diu Municipalities Act, the government could appoint an administrator of the municipal council if "in the opinion of the Government" certain circumstances existed. The Goa High Court ruled that the government could exercise the power only after giving an opportunity of being heard to the municipal council concerned. In the opinion of the court, the words "if in the opinion of the government" do not always indicate that the power was to be exercised without following natural justice.3 Distinguishing Radeshyam, the court ruled that the consequences of appointing an administrator were more serious in the instant case than in Radeshyam.4 That a function is to be exercised by an authority in its subjective satisfaction is not determinative of the question whether the function is to be discharged subject to natural justice or not. The courts are increasingly moving towards imposing some restrictions on the exercise of such functions, and one such restriction is that which arises from natural justice.5 There is no inconsistency between hearing and discretionary function. Hearing or natural justice is a procedural safeguard and does not restrict the discretion of the decision-maker as regards the decisions to be arrived at by him. Merely because a function is discretionary it does not ipso facto exclude hearing procedure. In a discretionary action there may be present some other dominant element, such as, a major administrative policy or economic or other threat to the community, which may negative the ideal of fair hearing.6 This is illustrated by preventive detention. Rule 30(1)(b) of the Defence of India Rule, 1962 conferred power on the government to detain a person if it was satisfied that his activities were prejudicial to the defence of India, public safety and maintenance of public order. It was held in Sadhu Singh v. Delhi Administration7 that since the Defence of India Act was an emergency measure, it was a matter of subjective satisfaction for the government to make an order of detention and the authority was not required to act judicially. Rule 30-A(8) and (9) required that an order of detention once made had to be reviewed every six months. Was the authority required to act judicially in reviewing the order? The Court, holding that the administrative action was executive, argued that if the initial order was executive, a review of that order could not but be regarded as an executive order. In P.L. Lakhanpal v. Union of India, 8 the Court, however, overruled this position, and held that the reviewing function of the detaining authority was quasi-judicial. The Court pointed out that there was a difference in the government's power to detain initially and its power in continuing such detention beyond a period of six months. Whereas the former depended upon the subjective satisfaction of the detaining authority, the latter had to be determined objectively, i.e. upon the relevant material collected and by weighing evidence brought before it. The Court also stated that it was not possible for the authority to do so "unless the person concerned was given an opportunity to correct or contradict such evidence either by explanation or through other materials which he could place before the authority." This case depicts how at times the presence of discretion, or absence of it, may make a difference in the characterisation of an administrative function, even though the subject-matter of the ultimate decision in both the situations may be the same. 7. EXCLUSION OF NATURAL JUSTICE The concept of natural justice does not supplant the law of the land but supplements it. Accordingly, as has been stated above, natural justice is implied by the courts when the parent statute under which an action is

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being taken by the Administration is silent as to its applicability; omission to mention the right of hearing in the statutory provision under which the impugned action is being taken, does not ipso facto exclude hearing. As a corollary to this proposition, if the parent Act itself excludes natural justice either expressly or impliedly,9 then natural justice cannot be implied. But there should be a strong implication to exclude hearing. In this connection, the Supreme Court has warned that it is not "permissible to interpret any statutory instrument so as to exclude natural justice, unless the language of the instrument leaves no option to the court." The Supreme Court has also emphasized that natural justice "is so integral to good government" that "the onus is on him who urges exclusion to make out why."10 In Swadeshi,11 the Supreme Court has emphasized: .. this rule of fairplay must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications.

(a) Express exclusion by a statute It is rarely that a statute expressly excludes natural justice in any situation. One such example, however, is furnished by Art. 311(2) of the Constitution. Under this provision, no civil servant is to be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. It has been held in a catena of cases that Art. 311(2) gives a constitutional mandate to the principles of natural justice.12 But the second proviso to Art. 311(2) excepts inter alia the following situation from Art. 311(2): where the authority empowered to dismiss or remove a civil servant or reduce him in rank is satisfied that, for some reason to be recorded by it in writing, it is not reasonably practicable to hold such an inquiry, the inquiry may be dispensed with. The Supreme Court has explained the purport of this exception from the normal rule of natural justice in Tulsiram Patel.13 According to the Court: "... whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation." The matter thus falls within the realm of principles applicable to discretionary power.14 The decision of the disciplinary authority is final,15 provided it records the reasons in writing for denying the inquiry to the concerned civil servant. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily, or out of ulterior motives, or merely in order to avoid the holding of an inquiry, or because the department's case against the concerned servant is weak and must fail. In such a case, the Court can strike down the order dispensing with the inquiry as also the order imposing penalty. The reasons for dispensing with the inquiry must be germane thereto. While the Court cannot enquire into the adequacy or sufficiency of reasons, it can examine the reasons ex facie, and if they do not seem to be germane, the Court can hold that the pre-requisite for the exercise of power not having been satisfied the exercise of the power was bad or without jurisdiction.16 The Court also insisted that natural justice having been excluded by a constitutional provision there was no scope for re-introducing the same via Art. 14: "... to hold that once the second proviso is properly applied and clause (2) of Art. 311 excluded, Art. 14 will step in to take the place of Cl. (2) would be to nullify the effect of the opening words of the second proviso and, thus, frustrate the intention of the makers of the constitution..." The Supreme Court has adopted an absolutist view on the question of exclusion of natural justice in this area. In the situation mentioned above, no inquiry or hearing is to be held at all as Art. 311(2) does not apply. The exception from Art. 311(2) has been inserted in the Constitution "as a matter of public policy and in public interest and for public good." The exception "excludes anything" that Art. 311(2) contains and, therefore, natural justice cannot be implied as it is expressly excluded. Nor can Art. 14 be invoked to imply natural justice for to do so would nullify the effect of the second proviso to Art. 311(2).17 When, however, following Tulsiram Patel, a disciplinary authority dispenses with the inquiry and dismisses a public servant from service without giving him a hearing, the court may go into the question whether the ground to dispense with the inquiry was sufficient and relevant or not. This judicial approach is illustrated by Chief Security Officer v. Singasan Rabi Das .18 An employee was removed from service on the ground of gross

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misconduct. No inquiry was held as the concerned disciplinary authority considered it "not practicable". The reason given for dispensing with the inquiry was that it was not considered feasible or desirable to procure witnesses of the security and other railway employees as this would expose them and thus make them ineffective for future; these witnesses if asked to appear at a confronted inquiry were likely to suffer personal humiliation and insults and make them and their families targets of acts of violence. The Supreme Court quashed the order of removal as in its opinion the reason given for dispensing with the inquiry was "totally irrelevant and totally insufficient in law." Said the Court, "There is total absence of sufficient material or good grounds for dispensing with the inquiry." Delhi Transport Corporation made a regulation providing for termination of services of permanent employees on giving simply one month's notice or pay in lieu thereof without recording any reason therefor. Thus, an employee could be dismissed without assigning any reason and without being given any opportunity of being heard. The Supreme Court quashed the regulation as conferring unbridled, indiscriminate and uncanalised power to terminate the services of a permanent employee. The court has emphasized that government companies or public corporations must make service regulations conformable to Art. 14. The ' audi alteram partem' rule in essence, enforces the equality clause in Art. 14 of the Constitution. The regulation in question did not expressly exclude the application of natural justice and, as such, the order of termination of service of a permanent employee could not be passed without giving any hearing to the employee to controvert the allegation on the basis of which the purported order was made.19 This was also the view taken in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, 20 where it was observed: We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specified it is otiose. There is no such sequitur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Art. 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation.

(b) Implied Exclusion Even if a statute does not expressly exclude natural justice, there may arise a case at times when the concerned judge may interpret a statutory provision in such a way as to exclude natural justice. Union of India v. M.E. Reddy 21 furnishes one such example. Here a statutory provision was interpreted as giving an absolute right to the government to compulsorily retire a servant and thus excluding natural justice impliedly. The provision said that in certain circumstances, the Central Government may 'require' a servant to retire and the word 'require' in the provision was regarded by the Court as conferring an 'unqualified' and 'absolute' power. Also, the Court argued that the impugned order was passed by the highest authority, namely, the Central Government in the name of the President. This judicial opinion can be characterised as rather 'odd'22 as it sails against very strong present-day currents: (1) The rule of natural justice ought not to be lightly excluded. This point has been emphasized by the Supreme Court in several cases like Maneka Gandhi, Kapoor, Swadshi Mills; and (2) there is no rule regarding any discretion as 'absolute', a point discussed later.23 (3) Vesting of power in a high authority does not ipso facto exclude natural justice as has been emphasized by the Supreme Court in Mohinder Singh.24 Moreover, it has to be remembered that there is no inconsistency between discretion and natural justice,25 for natural justice is only procedural in nature and does not amount to any-substantive restriction. For proper development of administrative law in India, it is necessary that the courts avoid drawing unnecessary technical and artificial distinctions just to deny procedural safeguards to the people. There should be a very strong implication to exclude hearing. The courts should not lightly infer exclusion of hearing in a situation where the person suffers adversely.26 Recently, in Union of India v. W.N. Chadha, 27 the Supreme Court has laid down a few propositions as regards the exclusion of natural justice. Though these propositions have been laid down in the context of criminal justice, some of these are relevant to the area of Administrative Law as well. 1.

The rule of audi alteram partem is not attracted unless the impugned order is shown to have

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2.

3.

4.

5. 6.

deprived a person of his liberty or property. The rule of audi alteram partem is a rule of justice and its application is excluded in a situation where the rule will itself lead to injustice. Therefore, the rule is excluded in cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. The rule cannot be applied to defeat the ends of justice or to make the law "lifeless, absurd, stultifying and self defeating or plainly contrary to the common sense of the situation" and this rule "may be jettisoned in very exceptional circumstances where compulsive necessity so demands." When an investigating officer is not deciding any matter except collecting materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report follows in a trial before a court or tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. "The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all." Whether a prima facie case has been made out or not is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged inquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute does not expressly grant. A decision on substantive rights of parties is one thing but a mere decision that another body investigate and decide on these substantive rights is quite another, and the principles of hearing is not applicable to the latter class of cases. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer. The accused has no right to have any say as regards the manner and method of investigation. There are however certain provisions under the Code of Criminal Procedure empowering the magistrate to give an opportunity of being heard under certain specified circumstances.

In this case, a court in India issued a letter rogatory to a Swiss court against the respondent. He challenged the procedure inter alia on the ground that he was not heard by the court before issuing the letter rogatory. The Supreme Court overruling the objection held that in the facts and circumstances of the case, the rule of audi alteram partem was not attracted as he was not prejudiced and deprived of his right to property or liberty due to the alleged non-compliance of the principles of audi alteram partem. A State Act provided for an elaborate enquiry and reasonable opportunity of being heard for removal of the Vice-Chancellor from office before expiry of his term. But another provision in the Act provided that the Vice-Chancellor would cease to hold office as soon as the Government issued a notification that the administration of the University could not be carried on in accordance with the provisions of the Act. The Supreme Court ruled that by necessary implication, this provision excluded the application of natural justice. The Court observed: "The principle of natural justice does not supplant the law but supplements the law. Its application may be excluded either expressly or by necessary implication."28 (c) Exclusion of Natural Justice can be implied if the parent statute itself contains a procedure to be followed When the statute under which an authority is functioning itself lays down a procedure for the authority to follow, then this procedure has naturally to be followed. If the prescribed procedure falls deficient in any of the norms of natural justice,29 then the procedure may have to be supplemented with the rules of natural justice. For example, in Malloch,30 the right of hearing was superimposed by the court as a matter of natural justice over a statutory procedure for dismissal of a school teacher by the school board. The Supreme Court has adopted a similar approach. As the Court has observed in Ratna.31 "The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary." On the other hand, if the statutory procedure is detailed, fair and complete, it may give rise to an implication that natural justice has been excluded and nothing more than the statutorily prescribed procedure need be followed by the concerned authority. An example of this approach is furnished by Furnell.32 Here was involved the disciplinary code for New Zealand government teachers. Charges against a school teacher were

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investigated by a sub-committee which reported to the high school board. Neither the sub-committee nor the board gave the school teacher an opportunity of making representations but he was suspended from teaching without pay pending consideration and decision by the teachers' disciplinary board into the charges of misconduct against him. By a majority, the Privy Council refused to apply natural justice to him, because the procedure provided for in the relevant code of regulations was a complete and fair procedure which the court was not entitled to redraft. The procedure laid down in the regulations was not unfair. The suspended teacher would get later full opportunity to meet the charges against him. So, while suspension may cause hardship to the teacher, it does not constitute a final decision regarding the charges against him. On the other hand, in a dissenting decision, two of the Law Lords advocated hearing before suspension. They read natural justice into the regulations. The minority view seems to be more in consonance with the present day liberal judicial trend in the matter of applying natural justice. However, the authority of Furnell is open to doubt today.33Furnell can be invoked, if at all, when the relevant statute prescribes a procedure to be followed to reach a decision which is fair and full. Even here the better view seems to be that the statutorily prescribed procedure ought to be evaluated with reference to natural justice and any gaps therein ought to be filled by bringing in the norms of natural justice.34 This has been done in India in several cases as stated above. However, the Furnell proposition has been applied by the courts in a few cases in India. One such case is Subhash Oil.35 S s. 57 and 57A of the Electricity Supply Act, 1948, lay down a procedure for increasing rates for supplying electricity to consumers by a licensee company. A consumer challenged the enhanced rates on the ground that the company had not given him a hearing before enhancing the rates. The Court rejected his contention saying that the Act laid down an exhaustive procedure for enhancement of electricity rates which adequately protected the consumers' interests and, therefore, a consumer could not claim any right of being heard. The Court referred to Furnell in support of its view. However, as Furnell has been subjected to criticism in England, as stated above, it is suggested that the courts in India should use Furnell with great care and caution. (d) No prejudice Can natural justice be denied when facts are indisputable or its failure causes no prejudice to the affected parties ? It is argued from time to time by the Administration before the courts in a bid to justify denial of natural justice, that it was not essential to observe natural justice in the instant case as observance thereof would have made no difference because the admitted or indisputable facts spoke for themselves. In Chitra,36 to such an argument the Supreme Court's reply was: "We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed." In S.L. Kapoor v. Jagmohan 37 the Court characterised such an argument as "pernicious" which must be rejected. The Court went on to say that if on admitted or indisputable facts only one conclusion is possible, and under the law only one penalty is permissible, then the Court may not compel the observance of natural justice "not because it approves the non-observance of natural justice but because courts do not issue futile writs." But where conclusions are controversial, howsoever slightly, and penalties discretionary, natural justice is a must. The Court pointed out that there is also the general principle that justice should not only be done but should also be seen to be done. That maxim is applicable precisely when the Court is concerned not with a case of actual injustice but with the appearance of possible injustice. The Supreme Court has observed further as regards this argument: "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

The proposition has been reiterated by the Supreme Court in Swadeshi:38 even when facts "speak for themselves", and denial of natural justice may not cause any prejudice to an affected person, natural justice has to be applied as "non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary." In CATA,39 the Supreme Court pointed

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out that there is also the general principle that justice should be seen to be done. This maxim is applicable precisely when the court is concerned not with a case of actual injustice but with the appearance of injustice, or possible injustice. Megarry, J. in John v. Rees, 40 strongly repudiating the argument that hearing can be denied to an affected person on the ground that it would have made no difference to the result reached, observed: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.'41

(e) A statute providing hearing in one situation but not in another If a statute prescribes hearing in one situation but it is silent as to hearing in another situation, it may be argued that by implication hearing has been excluded in the latter situation. The Supreme Court accepted such an argument in Radeshyam v. State of M.P., 42 The statute in question expressly provided for hearing the municipality if the government proposed to dissolve it, but it did not provide for a hearing when the government proposed to appoint an administrator for a municipality for a limited period. The Court ruled that no hearing need be given in the latter case. The Court argued that the legislative silence in this case meant that the legislature did not want hearing to be given. The Court adopted a similar approach in Mohd. Ibrahim v. S. T.A. Tribunal .43 The M.V. Act, 1939, specifically provided for a hearing in the matter of granting stage carriage permits, but it was silent as regards hearing when the government was exercising power to limit the stage carriage permits. The Court ruled that hearing need not be given in the latter situation. Reference may also be made in this connection to Tewari mentioned earlier.44 A flaw in the judicial argumentation can be noted. Ordinarily, natural justice is implied when the statute is silent as to hearing in a situation, but here the implication was being reversed only on the thin ground that in the same statute the legislature had provided for hearing in another situation and so legislative silence ought to be taken as legislative denial of hearing. In course of time, however, judicial attitude underwent a change in this regard. In Coal Mines P.F. Commissioner v. J.P. Lalla 45 was involved the Coal Mines Provident Fund and Bonus Scheme Act, 1948. Under S. 10-F, if an employer makes a default in payment of his contribution of provident fund, the Central Government may recover from him damages "not exceeding twenty-five per cent of the amount of arrears it may think fit to impose." Under S. 7-B of the Act, there is an express provision for reasonable opportunity of being heard to be given to the employer while determining the amount of contribution due from him, but no provision for hearing has been made under S. 10-F. In Coal Mines, the question was raised whether provision for hearing in S. 7-B, and legislative silence on this point with regard to S. 10-F meant that no hearing need be given while fixing the quantum of damages. The Supreme Court ruled that in spite of legislative silence in S. 10-F, principles of natural justice must be observed in determining the extent of damages to be recovered from the employer. Again, in S.L. Kapoor v. Jagmohan, 46 the New Delhi Municipal Committee was superseded by the Central Government under S. Section 238 of the Punjab Municipal Act, 1911. S. 16 expressly provided for giving an opportunity of hearing to a member of the Committee while determining the question of his disqualification to be a member, but the Act was silent in the matter of suppression of the municipality. This circumstance, it was argued, must be taken to exclude natural justice by necessary implication. Nevertheless, the Supreme Court rejecting the argument ruled that legislative silence would not exclude natural justice in the matter of suppression. "The silence of a statute has no exclusionary effect except where it follows from necessary implication." The decisive consideration in this connection is: does the administrative action entail civil consequences ? If so, hearing must be afforded. The Court stated in this connection:47 "It is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, opportunity is to be considered as excluded from thatision. It may be a weighty consideration to be taken into account but the weightier conside other provration is whether the administrative action entails consequences."

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The Industries (Development & Regulation) Act provides for take-over of an industry by the Central Government after an investigation (S. 18-A), or takeover without any investigation if immediate preventive action is deemed necessary, (S. 18-AA). Under S. 18-A, the affected person has a right of being heard at the time of investigation but he has no such opportunity when action is being taken under S. 18-AA. In Swadeshi,48 the question was whether the management ought to be given a hearing when the undertaking is proposed to be taken-over under S. 18-AA. It was argued that the fact that the take-over under S. 18-A is pre-conditioned by an investigation, but not under S. 18-AA, shows that Parliament has excluded hearing in that case. The Court did not accept this argument and ruled that the government cannot act even under S. 18-AA without observing natural justice. The Supreme Court has ruled that dispensing with the requirement of prior investigation under S. 18-AA does not necessarily indicate an intention to exclude the application of fundamentals of natural justice or the duty to act fairly. The Act in question also has S. 18-F which provides for a, post-decisional hearing for cancelling the take-over order if certain conditions are ful-filled. Even S. 18-F does not mean that no hearing need be given under S. 18-AA, as the purpose of the post-decisional hearing under S. 18-F is entirely different from -the purpose of a pre-decisional hearing before take-over.49 The cases like Kapoor, Lalla and Swadeshi depict the correct judicial approach to the question at hand.50 It is quite possible that the exclusion of hearing in one instance may be not because of a conscious and deliberate forethought on the part of the legislature to exclude hearing in that situation, but may be just a matter of accident or inadvertence on the part of the draftsman. There cannot be an automatic exclusion of hearing in such a situation. Each case should be judged on its own merits. If the consequences of an action on the part of the Administration are serious to the person concerned, hearing should be provided to him as a safeguard against any injustice or arbitrary action by the Administration. In view of these pronouncements, the approach of the Supreme Court in Tewari51 seems no longer to be valid. Reference may be made in this connection to a Canadian case52 where the Supeme Court adopted a similar approach. A probationary constable in a municipality was dismissed without hearing. There was a statutory provision requiring hearing for those who had crossed the probationary period, but the statute was silent with regard to dismissal of those who were still on probation. Still the Supreme Court of Canada ruled that the probationer must be treated fairly and not arbitrarily. In the administrative field there is a general duty of fairness. In the instant case, the consequences to the concerned person were serious and so he must be told why his services were no longer required and given an opportunity to respond. The order of dismissal in the instant case was thus quashed. The moral of the case is clear: when a statute provides for hearing in one situation, but not in another situation, the court can still read the right of hearing on the basis of fairness in the situation where the statute is silent as to hearing. If a section in a statute has provision for natural justice, and later the legislature amends the section and drops the requirement of natural justice therefrom, can it be argued that natural justice could no longer be read into the section as the legislature has impliedly excluded natural justice. A difference of opinion arose on this question in H. Putappa v. State .53 The minority argued against implying natural justice into the amended section. On the other hand, the majority argued that repeal of the provision as to hearing has no relevance for determining the nature of the power conferred on the authority. The applicability of natural justice must rest on the need to observe fair procedure in exercising the power in question. The majority view seems to be the correct approach. A statutory provision is to be taken as it exists and interpreted on its own terms so as to see whether there is anything therein to exclude natural justice. Legislative history may not be relevant for the purpose; that the legislature excluded hearing may not be decisive of the question of application of natural justice for legislative action might not have been by design but by inadvertence. It can only mean that the right of hearing which was conferred by statute no longer remains statutory. But that does not mean that natural justice cannot be implied by ordinary interpretative technique. Exclusion of natural justice has to be based on much more substantial and solid ground than that. (f) Doctrine of pleasure Ordinarily, the 'pleasure' doctrine comes into play when the appointment of a Crown servant is terminated. Lord Diplock in Chelliah Kodeeswaran v. Attorney General of Ceylon, 54 stated the English law as follows:

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"It is now well established in British constitutional theory, at any rate as it has developed since the eighteenth century, that any appointment as a Crown servant, however subordinate, is terminable at will unless it is expressly otherwise provided by legislation."

The constitutional protection and privileges available under Article 311 to a person who holds a civil post under the Union or States are not applicable to a member of a Council who is nominated by the Governor.55 The Supreme Court in Rash Lal Yadav (Dr.) v. State of Bihar, 56 held that the principles of natural justice are not applicable in the absence of express words. That was a case where the removal from the Chairmanship of the Bihar Schools Board was challenged. Relying on an earlier decision in A.K. Kraipak v. Union of India, 57 it was held that if the statute, expressly or by necessary implication, omits the application of the rule of natural justice, the statute will not be invalidated for this omission on the ground of arbitrariness. The termination of the membership of four nominated members from the Mara Autonomous District Council, Mizoram, which is vested with legislative power on specified subjects was also challenged on the ground that these members were not given any notice and they were not heard and that there was a violation of the principles of natural justice. It is pertinent to note that these members held their office at the pleasure of the Governor. Therefore, the contention that these members of the Council were not heard before their nomination/appointment was terminated and hence illegal, cannot be accepted.58 In Om Narain Agarwal v. Nagar Palika, Shahjahanpur .59 The Supreme Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 of 1990, which made provision for the nomination of two women members by the State Government, and the fourth proviso provided that the nomination of such two members was at the pleasure of the State Government. The Court held: The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member.......But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution. In our view, such provision neither offends any article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or character of the nominated members. It is done purely on political considerations.

Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving an opportunity before removal would arise. It is significant when stigma is cast then, as in the instant case, sub-section (3) of Section 10 of the Nagpur Improvement Trust Act, 36 of 1936 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6 of the Act. Thus intent of legislature is very clear which reinforces the inference that doctrine of pleasure is implicit under Section 6.60 (g) Prompt Action Hearing may be excluded if prompt action needs to be taken by the Administration in the interest of public safety, public health, or public morality, or broadly in public interest. The reason is that hearing may delay administrative action, defeating the very purpose for taking action in the specific situation. Thus, in a national emergency, individuals may have to be detained on mere suspicion of their dangerous activities without hearing the concerned person to maintain national security. Therefore, in preventive detention cases, no hearing is given to the detenu before his detention.61 A few other examples where prompt action may have to be taken summarily are: pulling down some property to prevent fire from spreading; destruction of plants or animals suffering from a contagious disease; destruction of unwholesome food items unfit for human consumption; demolition of a wall or building which is in imminent danger of falling down.62 In such

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situations, it may not be possible to give a hearing to a person affected because of the urgency with which administrative action needs to be taken; here the need for immediate and rapid action outweighs the need for providing procedural safeguards to the person affected. A building may have to be demolished immediately, without giving a hearing to its owner, if it becomes necessary to do so to prevent fire from spreading to a nearby ammunition dump. Under S. 29(1) of the Defence of India Act, 1962 power was conferred on the Central Government or the State Government to requisition any immovable property if in its opinion it was necessary or expedient to do so for securing the defence of India etc. It was held that no hearing was necessary while making an order under S. 29(1). In an emergency, such an opportunity may defeat the very purpose in view.63 In Laxmi Khandsari,64 an order imposing a two month ban on power crushers without giving a hearing to the owners thereof was justified by the Court inter alia on the ground that the restriction was temporary and the situation warranted an "immediate and emergent" measure. There were a large number of owners of power crushers and if hearing were to be given to all of them, "it would have completely defeated and frustrated the very object" of the action taken. The Court observed: "If the rules of natural justice were not applied in such an emergent case, the petitioners cannot be heard to complain." However, law permits exclusion of natural justice in some cases, like emergency.65 But, in course of time, the judicial attitude has become strict in the matter of accepting the argument of need of quick action to deny hearing to an affected person. The Supreme Court now adopts a cautious attitude on the question of excluding hearing in the name of urgency. It has shown a tendency of not accepting lightly the argument of 'urgency' so as to exclude natural justice. Its stand has been that urgency is a matter of degree and that the cases of extreme urgency where administrative action really brooks no delay are rather rare. In many cases, the urgency is not so extreme that natural justice cannot be adapted to the exigencies of the situation--"to adjust and strike a balance between the competing claims of hurry and hearing". The stand of the Court has been that natural justice being a flexible concept,66 it is amenable to capsultation under pressure of circumstances; it is always possible to apply, except in rare situations, a shortened form of hearing. Therefore, before accepting an exclusion of natural justice in a given situation, the courts should make an effort to salvage the principle to the extent possible by seeing to what extent, and in what form, natural justice could be made applicable. In Swadeshi,67 the Court emphasized: "...this rule of fairplay must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The Court must make every effort to salvage this cardinal rule to the maximum extent possible with situational modifications". Accordingly, the Court refused to accept the argument that action under S. 18-AA(1) of the Industries (Development and Regulation) Act, 1951, has to be so urgent as to exclude the application of the audi alteram partem rule at the pre-decisional stage--"a short measure of fair hearing adjusted, attuned and tailored to the exigency of the situation." The reason to take such a cautious stand is that the power conferred by S. 18-AA is drastic and the consequences of take-over are far reaching and its effect on the rights and interests of the owner grave and deprivatory.68 The Court emphasized:69 The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of natural justice. To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in ultimate analysis, the question, (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case.

The Act involved in Swadeshi has a provision, S. 18-F, under which the government has power to cancel the order, on an application of the owner, if it appears to the government that such an order is no longer necessary. The Court refused to accept the hearing under S. 18-F as a good substitute for a hearing before passing the order of take-over. ";The so-called right of a post decisional hearing available to the aggrieved owner of the undertaking under S. 18-F is illusory as the operation and effect of the power of review is 'prospective' and not 'retroactive'--"being strictly restricted to and dependent upon the post-take over circumstances." The cancellation of the order under S. 18-F cannot have the effect of "annulling, rescinding or obliterating the order of take-over with retroactive force; it can only have a prospective effect." The Act in question provides for no adequate remedial hearing to the aggrieved party even where his undertaking may have been taken-over arbitrarily on insufficient grounds.70 In Mohinder Singh Gill,71 the question was whether the Election Commission was bound to hear the

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candidates before countermanding the polling in a constituency, and ordering a fresh poll therein, because of hooliganism and breakdown of law and order at the time of counting of votes. It was argued inter alia that there was need for a speedy decision in such a situation and so natural justice would be excluded. Discounting such an argument, the Court. emphasized that the argument of need for a speedy decision could not exclude natural justice altogether although it could modify it in its applicability to a particular situation. The Court emphasized that the cardinal principle of natural justice as a condition precedent for decision-making cannot be martyred for the cause of administrative immediacy "unless the clearest case of public injury flowing from the least delay is self-evident". The Court pointed out that the standards of natural justice vary with the situations "contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings" and "situational modifications" can be made in natural justice procedure. "The full panoply may not be there but a manageable minimum may make do." Natural justice cannot be sacrificed in the name of urgency "unless the clearest case of public injury flowing from the least delay is self-evident." Similarly, the Supreme Court has emphasized in S.L. Kapoor v. Jagmohan, 72 which involved an order of suppression of a municipal corporation, that even when an emergency action is to be taken, the right of hearing may not be excluded. Natural justice being flexible, it can always be tailored to the situation. The question to consider will be whether or not minimal natural justice, "the barest notice and littlest opportunity" of hearing in the shortest time cannot be provided ? In Shephard,73 the Administration was required to reach a decision within six months. The Supreme Court refused to accept the argument that rules of natural justice are ousted by necessary implication because of the time-limit. The Court insisted that the time-limit provides scope for an opportunity of being heard being extended to the affected persons so that "a hearing commensurate to the situation" is afforded to them. In Swadeshi,74 even when the statutory provision warranted "immediate action," the Supreme Court refused to read the provision as excluding natural justice. The Court argued that such situations as brook absolutely no delay are rare; in most cases, "where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing". In the ultimate analysis, the question as to what extent and in what measure the rule of fair hearing would apply "will depend upon the degree or urgency, if any, evident from the facts and circumstances of the particular case". The Court cautioned in this connection. ..... if the statute conferring the power is silent with regard to the giving of pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against the decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude.

(h) Large number of cases to be decided If an authority has to decide a large number of cases of one type, this may be deemed to be a circumstance exclusionary of natural justice. The reason is that if the authority is required to give fair hearing in all cases, it may not be able to perform its task. This, therefore, may be a basis for holding that natural justice need not be given by the concerned authority.75 This however is a weak ground to deny natural justice as it takes into consideration only the administrative exigencies and not the interests of the individuals affected. In Ghanshyam,76 it was sought to be argued that there were a large number of cases of using unfair means at the examination and if hearing were to be given in every case, the concerned committee would find it impossible to carry on its task. The Court refused to accept such an argument saying. "This in our opinion is no criterion for deciding whether a duty is cast to act judicially in view of all the circumstances of the case." The Supreme Court rejected such an exclusionary argument on two grounds mainly: (i) there were no fixed criteria of fair hearing and all that was required was that the concerned person should have an opportunity of adequately presenting his case, and so a shortened form of hearing can be devised in such cases; (ii) the consequences of the order on the candidate were very serious. Again, in Chitra,77 to the argument that it would cast a heavy burden on the Board if cancellation of examination of a candidate was held to be quasi-judicial in view of a large number of candidates appearing at the examination, the Court replied: "Principles of natural justice are to some minds burdensome but this price-a small price indeed--has to be

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paid if we desire a society governed by the rule of law." However, there is a limit to the flexibility of the hearing procedure, and even the minimal requirement of hearing involved in a proceeding may act as a real hindrance for an authority to discharge its function because of the large number of cases. It is therefore suggested that in such a situation, if hearing at the initial stage is not found feasible, there must be provision for hearing at the appellate stage in the interest of justice.78 (i) Legislative Function Hearing is excluded when the administrative action in question is regarded as legislative in character as contrasted with an administrative function. An order of a general nature, and not one applying to one person or a few specified persons, may be regarded as legislative. For instance, in making sub-delegated legislation, as stated earlier, no hearing need be given unless the statute expressly provides for the same.79 The authority usually cited for the purpose is Bates v. Hailsham, 80 where Meagrry, J., held that in case of an order of legislative nature, no compulsory or obligatory hearing is called for. As Megarry, J., observed: ".. I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given."

Thus there is no implied right to being heard in legislative process.81 The same principle has been followed in India.82 For example, in the following cases, denial of natural justice has been judicially upheld because the function was considered to be legislative: a notification issued by the cane commissioner prohibiting power crushers and Khandsari units from working their units in any reserved area for a sugar mill for a few months with a view increase sugar production;83 a notification issued by the government extending the limits of a town area committee;84 a notification proposing formation of a municipal corporation,85 enhancement of electricity rates under the Electric Supply Act, 1948;86 notifying a market area for marketing of specified commodities;87 enhancement of rates of royalty and dead rent for grant of mining leases for minerals;88 Price-fixation;89 revision of insurance premia rates;90 fixation of telephone tariff under the Indian Telegraph Act91 and declaration of an area as dry area.92 An amendment was made by the State Government to the M.P. Food Stuffs (Distribution) Control Order, 1960, doing away with "appointed dealers." They challenged the amendment on the ground that as no notice was given to them, there was a violation of natural justice. Over ruling the objection, the Supreme Court ruled that the amendment of the Control Order being a legislative function, there was no question of affording an opportunity to those who were to be affected by it.93 The justification for this approach appears to be that large number of persons were affected by these decisions and if natural justice was to be observed in such a case it would not be possible to take timely action. The court has now reiterated over and over again that no hearing would be necessary when the Administration is discharging the rule-making function, except when the parent statute itself ordains some kind of hearing. But there are cases in which the Supreme Court has relented somewhat and has insisted on hearing being given even when the function could be regarded as legislative94 It may also be noted that even in case of legislative action by the Administration, hearing can be claimed on the basis of deprivation of a legitimate expectation.95 (j) National Security The House of Lords has ruled in CCSU96 that the right of being heard may have to give way to the overriding considerations of national security. But on the question whether national security is involved in a situation, the court cannot accept the mere ipse dixit of a Minister. The court cannot accept the dictum that those who are responsible for maintaining national security should be the sole judges of what national security requires. The court itself would have to be satisfied on this point by presentation of some evidence to show that an

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issue of national security is involved in the specific situation. As Lord Fraser of Tullybelton has stated in CCSU.97 "The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the government and not for the courts; the government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the government is under an obligation to produce evidence that the decision was in fact based on grounds of national security..."

(k) Post-decisional hearing A hearing which takes place before a decision is arrived at by the decision-making authority is known as a 'pre-decisional' hearing; a hearing held after a tentative decision is reached is known as a 'post-decisional' hearing. The Supreme Court expounded the principle of post-decisional hearing in Meneka Gandhi.98 In cases where it may not be feasible to hold a predecisional hearing, as for example, when the authority has to deal with a large number of cases, or when a prompt decision needs to be taken, a post-decisional hearing may be held if a pre-decisional hearing is not feasible. For instance, the power to impound a passport may be frustrated if a prior notice and hearing must be given to the concerned passport-holder before taking such an action against him. He may leave the country before his passport is actually impounded. Therefore, in such a case, the passport authority may first impound the passport without giving a hearing, and, thereafter, "an opportunity of hearing, remedial in aim, should be given to him." A fair opportunity of being heard following immediately upon the impounding order would satisfy the mandate of natural justice. In justification of this approach, Bhagwati, J. stated in Maneka Gandhi that the life of law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism. Therefore, the audi alteram partem rule would, by the experimental test, be excluded if it has the effect of paralysing the administrative process, or the need of promptitude or the urgency of the situation so demands. But, at the same time, as the rule is of vital importance in the field of Administrative Law, it must not be jettisoned save in exceptional circumstances where compulsive necessity so demands. "It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case." The concept of natural justice is flexible and, it is amenable to capsultation under pressure of circumstances. Therefore, before accepting exclusion of natural justice in a given situation, the courts should make an effort to salvage the principle to the extent possible by seeing to what extent, and in what form, natural justice could be made applicable. It would not be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a passport might be frustrated, if prior notice and hearing were to be given to the concerned person before taking such action. The passport authority may impound the passport without giving a hearing first, but, as soon as the order is made, "an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the passport authority. A fair opportunity of being heard following immediately upon the impounding order would satisfy the mandate of natural justice. This procedure must be read by implication into the Passport Act." Post-decisional hearing procedures are in vogue in the U.S.A. in many situations. The idea underlying post-decisional hearing is to strengthen, not to weaken, the concept of administrative fairness. By introducing post-decisional hearing process in India, the Supreme Court has in effect expanded the horizons of natural justice. If in a situation, pre-decisional hearing is not feasible, then post-decisional hearing may be resorted to rather than denying hearing altogether. But post-decisional hearing procedure ought to be used restrictively and not as a substitute for pre-decisional hearing, the reason being that for the affected person, pre-decisional hearing affords a much better safeguard. Post-decisional hearing is to be resorted to only when no pre-decisional hearing is feasible. There have been many situations where courts have permitted a post-decisional hearing as pre-decisional hearing did not appear to be feasible, and also cases where courts have refused to accept post-decisional hearing where pre-decisional hearing could have been given.1 Certain banks were amalgamated with nationalised banks. As a result of this, certain employees of the banks

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which were amalgamated were excluded and their services were not taken over by the transferee banks. Such exclusion was made without giving any hearing to the affected employees. The action was challenged by some of these employees. The Supreme Court concluded that these employees ought to have been given a hearing before they were excluded. The Supreme Court refused to agree with the view that a post-decisional hearing would be adequate in the situation.2 The Court observed: They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose.

In this case, a post-decisional hearing was sought to be used as a substitute for a pre-decisional hearing. There was no reason as to why a pre-decisional hearing could not be held in this case. A post-decisional hearing is less effective than a pre-decisional hearing for, as the Court has pointed out, once a decision has been taken by an authority, its natural tendency would be to support the same and a representation against it may not really yield any fruitful result. Therefore, post-decisional hearing is not adequate in dismissal case where the consequences to the concerned person are very serious. The post-decisional hearing mechanism may be resorted to only when pre-decisional hearing may not be feasible, and the only choice is between no hearing and a post-decisional hearing. However, in the instant case in which 6000 to 7000 employees were thrown out of job after giving them notice to show cause through publication of notice in the newspaper for consecutive days, B.L. Hansaria, J. of the Division Bench partly dissenting held such giving of notice to show cause to be inadequate and unreasonable. However, he did not cancel their dismissal order, treating the consideration of their objections by the Apex Court as a post-decisional hearing. However, the larger Bench found no violation of principles of natural justice.3 A similar judicial approach is visible in H.L. Trehan v. Union of India .4 Coril (Caltex Oil Refinery Ltd.), a government company, acquired shares of some private petroleum companies along with their staff. Under the relevant law, Coril could alter the remuneration and conditions of service of such employees. Accordingly, Coril issued a circular reducing their perquisites and allowances. Some of the employees challenged the circular on the ground that it substantially altered their terms of service to their prejudice without a hearing having been given to them before issuing the circular. Accepting the contention, the Supreme Court observed: It is now well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a government servant without complying with the rules of natural justice by giving the government servant concerned an opportunity of being heard.

The impugned circular was invalidated as it offended against the principles of natural justice. Coril had contended that after issuing the circular it did give to the employees an opportunity of being heard with regard to the alterations made in the conditions of service. The Court ruled that this was no good as "the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation of such a post-decisional opportunity." Reference has already been made to Liberty.5 The Court has stated in this case that the opportunity to be heard may not be pre-decisional in every case. It necessarily has to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook on delay. "If an area is devastated by flood, one cannot wait to issue show-cause notices for requisitioning vehicles to evacuate population. If there is an out-break of an epidemic we presume one does not have to issue show-cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity." In some situations, it may not even be necessary to issue notices for a post-decisional hearing; it would be sufficient but obligatory to consider any

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representation that may be made by the aggrieved person and this would satisfy the requirements of procedural fairness and natural justice. The Supreme Court has suggested in this case that under Cl. 8B of the Imports and Exports (Control) Act, 1947, a pre-decisional opportunity may not be necessary but a post-decisional opportunity must be given if so requested by the person affected. "The requirements of natural justice will be met in the case of action under Cl. 8B by considering, bona fide any representation that may be made in that behalf by the person aggrieved." Also, where interim decisions are taken pending investigation or inquiry, "pre-decisional natural justice is not usually, contemplated". An interim orders may be made ex party, but the aggrieved party always has a right to make an appropriate representation seeking a review of the order and asking the authority to rescind or modify the same. "The principles of natural justice would be satisfied if the aggrieved party is given an opportunity at his request. There is no violation of a principle of natural justice if an ex-parte ad interim order is made unless of course the statute itself provides for a hearing before the order is made. Natural Justice will be violated if the authority refuses to consider the request of the aggrieved party for an opportunity to make his representation against the ex parte ad interim orders." But, again, the Court cautioned that there may be interim orders which may cause serious detriment to the concerned person and in such cases some modicum of residual, core natural justice, sufficient to enable the affected person to make an adequate representation is necessary. "An interim order of stay or suspension which has the effect of preventing a person, however, temporarily, say, from pursuing his profession or line of business may have substantial, serious and even disastrous consequences to him and may expose him to grave risk and hazard." The courts can intervene if the concerned authority declines to consider the representation. S. 53(1)(vii) of Goa, Daman, Diu Public Health Act, 1985, empowers the State Government to isolate persons found to be positive for AIDS for such period and on such conditions as may be considered necessary in such institutions or wards thereof as may be prescribed. The Bombay High Court has ruled in Lucy S. D'Souza v. State of Goa 6 that the principle of audi alteram partem has to be read in the provision as it affects a valuable civil right. But in a case suffering from AIDS, a pre-decisional hearing may frustrate the object of isolation and may not even be practicable. Therefore, by implication, a post-decisional right of hearing ought to be read in S. 53 against the decision to isolate a patient.

It was contended that before making the notification whereby an organization is declared as a terrorist organization, there is no provision for pre-decisional hearing. But this cannot be considered as a violation of audi alteram partem principle, which itself is not absolute. Because in the peculiar background of terrorism it may be necessary for the Central Government to declare an organization as terrorist organization even without hearing that organization. At the same time under Section 19 of POTA, 2002 the aggrieved persons can approach the Central Government itself for reviewing its decision. If they are not satisfied by the decision of the Central Government they can subsequently approach the Review Committee and they are also free to exercise their constitutional remedies. The post-decisional remedy provided under POTA, 2002 satisfies the audi alteram partem requirement in the matter of declaring an organization as a terrorist organization. Therefore, the absence of pre-decisional hearing cannot be treated as a ground for declaring Section 18 of POTA, 2002 as invalid.7 The Central Govt. made orders of moratorium in respect of certain Banking Companies and the draft scheme in respect of which was forwarded to them by the Reserve Bank of India and objections against the said orders and the draft scheme were submitted by the Companies to the Reserve Bank of India. It was contended by the Companies that since the orders of moratorium were passed by the Central Govt., the post-decisional hearing against the said orders should be by the Central Govt. and the consideration of their objections by the Reserve Bank of India would not satisfy the object of the post-decisional hearing in respect of those orders. The Supreme Court observed that as the comments of the Reserve Bank of India on the objections filed by the companies would be considered by the Central Govt., there was no fault in the matter of the post-decisional hearing.8

1 Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 440. 2 Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 439.

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3 See, infra, this Chapter, notes 40-50. 4 R.L. Sharma v. Managing Committee, Dr. Hari Ram H.S. School, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], 2160; see Chapter XI, infra. 5 For historical development of the concept see, Union of India v. Tulsiram Patel, AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398: 1985 (2) LLJ 206 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219] Jain, Cases, 467. 6 Supra, Chapter 1. 7 See, infra, Judicial Control of Administrative Action. 8 See, infra, Chapter XV. 9 It may be noted that the terms 'hearing', fair hearing', 'natural justice' and ' audi alteram partem' used in this Chapter are interchangeable, as these terms have practically the same meaning. 10 Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 440. 11 Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563], 323(paras 45 and 46): AIR 2004 SC 2227 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563]. See also Divisional Manager, Plantation Division Andaman & Nicobar Islands v. Munnu Barrick, (2005) 2 SCC 237, 243(para 17): AIR 2005 SC 1158 [LNIND 2004 SC 1258] [LNIND 2004 SC 1258] [LNIND 2004 SC 1258]. 12 Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563], 323(para 47): AIR 2004 SC 2227 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563]. 13 (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], 432-33(para 4): AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], as cited in Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563], 323(para 48): AIR 2004 SC 2227 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563]. 14 (2004) 6 SCC 299 [LNIND 2004 SC 472] [LNIND 2004 SC 472] [LNIND 2004 SC 472], 308(paras 24 and 25): AIR 2004 SC 2538 [LNIND 2004 SC 472] [LNIND 2004 SC 472] [LNIND 2004 SC 472], as cited in Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563], 324(para 49): AIR 2004 SC 2227 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563]. See also Mardia Chemicals Ltd. v. U.O.I., (2004) 4 SCC 311 [LNIND 2004 SC 458] [LNIND 2004 SC 458] [LNIND 2004 SC 458]: (2004) 4 Scale 338 [LNIND 2004 SC 458] [LNIND 2004 SC 458] [LNIND 2004 SC 458] and Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324]: 2003 SCC (L&S) 507; Transmission Corporation of A.P. Ltd. v. Sri Ram Krishna Rice Mills, (2006) 3 SCC 74 [LNIND 2006 SC 111] [LNIND 2006 SC 111] [LNIND 2006 SC 111], 78(para 6). 15 (2003) 7 SCC 492 [LNIND 2003 SC 730] [LNIND 2003 SC 730] [LNIND 2003 SC 730], 506(para 29): AIR 2004 SC 856 [LNIND 2003 SC 730] [LNIND 2003 SC 730] [LNIND 2003 SC 730]. 16 (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], 477(para 97), as cited in Bar Council of India v. High Court of Kerala, (2004) 6 SCC 311 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563], 324(para 50): AIR 2004 SC 2227 [LNIND 2004 SC 563] [LNIND 2004 SC 563] [LNIND 2004 SC 563]. 17 Rajendra Construction Company v. Maharashtra Housing & Area Development Authority, (2005) 6 SCC 678 [LNIND 2005 SC 612] [LNIND 2005 SC 612] [LNIND 2005 SC 612]: 2005 (7) JT 388. 18 Industrial Credit and Investment Corporation of India v. Grapco Industries Ltd., (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND 1999 SC 410], 716(para 11): AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410]. 19 See, Govt. of Mysore v. J.V. Bhat, AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110; Jain Cases, 516; infra, Chapter XVIII. Also, Jain, Indian Constitutional Law, Chapter 22 (1987). 20 See under heading: 'Rule of Law', Chapter II. AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319. Also see, infra, Chapter XVIII . 21 Cantonment Board v. Taramani Devi, (1992) Supp (2) SCC 502: AIR 1992 SC 61. See, infra, Chapter XVIII . 22 Union of India v. Tulsiram Patel, AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398. See, Jain, Cases, 634. Also see, Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corp., AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506]: 1992 Supp (1) SCC 5. 23 Govt. of Mysore v. J.V. Bhat, AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110, Jain, Cases, 516, Chapter 21. Also see, Delhi Transport Corp v. D.T.C. Mazdoor Union, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1 9991 (1) LLJ 395: 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]; infra, Chapter XVIII; Jain, Cases, Chapter XV.

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24 Khem Chand v. Union of India, AIR 1958 SC 300 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]: 1959 (1) LLJ 167: 1958 SCR 1080 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]. Also, Jain, Indian Constitutional Law, Chapter 31 (1987). 25 Kesava Mills Ltd. v. Union of India, AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]: (1973) 1 SCC 380; Jain, Cases, 807. 26 Mohd. Ibrahim v. STA Tribunal, Madras, AIR 1970 SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251]: (1970) 2 SCC 233. 27 Devi Sahai v. TA. Tribunal, AIR 1970 Raj 48 [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119]. Also see, Gullapalli Nageswara Rao v. A.P. State Road Transport Co., AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319; Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corp., AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506]: 1992 Supp (1) SCC 5; Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, 1998 (3) Raj 483: 1998 (5) Scale 655 [LNIND 1998 SC 970] [LNIND 1998 SC 970] [LNIND 1998 SC 970]: AIR 1999 SC 22: (1998) 8 SCC 1. 28 CATA Sale Co-operative Society v. A.P. Government, AIR 1977 SC 2317; Jain, Cases, 656; Singa Govindji v. Dy. Chief Controller of Imports, (1962) 1 SCJ 93: 1962 (1) SCR 540 [LNIND 1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542]; Gullapalli Nageswara Rao v. A.P. State Road Transport Co., AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319; Harbhajan Singh v. Union of India, AIR 1987 SC 9 [LNIND 1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420]: (1986) 4 SCC 678; Jain, Cases, Ch VIII, 566. 29 Dewan Singh v. State of Haryana, AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]: (1976) 3 SCC 638. For norms of natural justice, see, Chapter X, infra; Jain, Cases, Chapter IX. 30 CATA Sale Co-op. Society v. A.P. Government, AIR 1977 SC 2317. 31 Mohd. Ibrahim Khan v. State of Madhya Pradesh, AIR 1980 SC 517 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384]: (1979) 4 SC 458. The nature of the enquiry held by the collector under S. Section 5A of the Land Acquisition Act remains doubtful; Also see under heading: 'Property Rights', infra this chapter. AIR 1968 SC 432 [LNIND 1967 SC 275] [LNIND 1967 SC 275] [LNIND 1967 SC 275]: 1968 (1) SCR 597. 32 On this point see, infra, Vol. II, under Judicial Control. 33 Cooper v. Wandsworth Board of Works, 143 ER 414 (1863). 34 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405. See also S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]; Basudeo Tiwary v. Sido Kanhu University, (1998) 8 SCC 194 [LNIND 1998 SC 893] [LNIND 1998 SC 893] [LNIND 1998 SC 893], 199 (para 10): AIR 1998 SC 3261 [LNIND 1998 SC 893] [LNIND 1998 SC 893] [LNIND 1998 SC 893]. 35 See under heading: 'Exclusion of Natural Justice' infra this chapter. AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398: 1985 (2) LLJ 206 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]. 36 Committee (England) on Minister's Powers, Cmd. 4060 (1932), 73, as cited by Wade & Forsyth in A dministrative Law, 9th Edn., 2005 pp. 482-83. 37 Mersey Docks Trustees v. Gibbs, (1866) LR 1 HL 93 at 110, as cited by Wade & Forsyth in Administrative Law, 9th Edn., 2005, p. 482. 38 The courts at times interchangeably use the terms "judicial" and " quasi-judicial". But the use of the term "quasi-judicial" is more appropriate because an administrative agency lacks the independence, and its procedure is not as formal as that, of a court even if it may be required to follow natural justice which is a fairly flexible concept. See, infra, Chapter X . 39 R. v. Electricity Commissioners, (1924) 1 KB 171, 205, per Atkin, L.J; Province of Bombay v. Khushaldas Advani, AIR 1950 SC 222 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32]: 1950 SCR 621; Radeshyam v. State of M.P., AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440; R. v. London County Council, (1931) 2 KB 215: 144 LT 464. 40 Wade & Forsyth: Administrative Law, 9th Edn., 2004, p. 41. 41 Commissioner of Customs v. Indian Oil Corporation Ltd., (2004) 3 SCC 488 [LNIND 2004 SC 235] [LNIND 2004 SC 235] [LNIND 2004 SC 235], 499 (para 24): AIR 2004 SC 2799 [LNIND 2004 SC 235] [LNIND 2004 SC 235] [LNIND 2004 SC 235], relying on Sirpur Paper Mills Ltd. v. CWT, (1970) 1 SCC 795 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216]: AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216]. 42 AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: (1959) 1 MLJ 5: 1959 SCR 1440 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113].

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43 (1924) 1 KB 171: 130 LT 164. 44 Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 698 (para 20): AIR 2002 SC 2158 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400]. See also Manju Varma (Dr.) v. State of U.P., (2005) 1 SCC 73 [LNIND 2004 SC 1143] [LNIND 2004 SC 1143] [LNIND 2004 SC 1143], 79 (para 6). 45 (1937) 2 KB 309: (1937) 2 All ER 726: 106 LJKB 728 (CA). 46 (1878) 2 IR R 371. 47 (1924) 1 KB 171: 1923 All ER Rep 150: 93 LJKB 390 (CA). 48 AIR 1950 SC 222 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32], 260 (para 173) 1950 SCR 621 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32]. 49 Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 700 (para 24): AIR 2002 SC 2158 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400]. 50 Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 700 (para 25): AIR 2002 SC 2158 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400]. 51 Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 701-02 (paras 31 and 32): AIR 2002 SC 2158 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400]. 52 Orissa Textile & Steel Ltd. v. State of Orissa, (2002) 2 SCC 578 [LNIND 2002 SC 42] [LNIND 2002 SC 42] [LNIND 2002 SC 42], 600 (para 16): AIR 2002 SC 708 [LNIND 2002 SC 42] [LNIND 2002 SC 42] [LNIND 2002 SC 42]. 53 State of H.P. v. Raja Mahendra Pal, (1999) 4 SCC 43 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328], 56 (paras 8 and 9): AIR 1999 SC 1786 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328]. 54 State of H.P. v. Raja Mahendra Pal, (1999) 4 SCC 43 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328], 56-57 (para 9): AIR 1999 SC 1786 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328]. 55 State of H.P. v. Raja Mahendra Pal, (1999) 4 SCC 43 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328], 56-58 (para 9): AIR 1999 SC 1786 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328]. 56 Union of India v. GTC Industries Ltd., Bombay, (2003) 5 SCC 106 [LNIND 2003 SC 354] [LNIND 2003 SC 354] [LNIND 2003 SC 354], 112 (para 13): AIR 2003 SC 1383 [LNIND 2003 SC 354] [LNIND 2003 SC 354] [LNIND 2003 SC 354]. 57 Krishna Mohan Shukla v. Union of India, (2000) 10 SCC 507 [LNIND 2000 SC 160] [LNIND 2000 SC 160] [LNIND 2000 SC 160], 508-9 (para 1). 58 Karnataka Rare Earth v. Senior Geologist, Department of Mines & Geology, (2004) 2 SCC 783 [LNIND 2004 SC 109] [LNIND 2004 SC 109] [LNIND 2004 SC 109], 792-93 (paras 18): AIR 2004 SC 2915 [LNIND 2004 SC 109] [LNIND 2004 SC 109] [LNIND 2004 SC 109]. 59 Ghulam Qadir v. Special Tribunal, (2002) 1 SCC 33 [LNIND 2001 SC 2216] [LNIND 2001 SC 2216] [LNIND 2001 SC 2216], 62 (para 47). 60 State of Kerala v. N. Avinasiappan, (2004) 1 SCC 344, 346 (para 4). 61 Union of India v. K.M. Shankarappa, (2001) 1 SCC 582 [LNIND 2000 SC 1673] [LNIND 2000 SC 1673] [LNIND 2000 SC 1673], 585 (para 7): AIR 2000 SC 3678 [LNIND 2000 SC 1673] [LNIND 2000 SC 1673] [LNIND 2000 SC 1673]. 62 Manju Varma (Dr.) v. State of U.P., (2005) 1 SCC 73 [LNIND 2004 SC 1143] [LNIND 2004 SC 1143] [LNIND 2004 SC 1143], 82 (para 15). 63 Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570 [LNIND 2004 SC 1269] [LNIND 2004 SC 1269] [LNIND 2004 SC 1269]: (2005) 3 SCC 241. 64 See, infra, Chapter XIII . Also, Jain, Cases, Chapter XII . 65 Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188 [LNIND 1950 SC 4] [LNIND 1950 SC 4] [LNIND 1950 SC 4]: 1950 LLJ 921: 1950 SCR 459; Also, infra, Chapter XIII; Jain, Cases, Chapter XII, Sec. T. 66 New Praskash Transport Co. v. New Suwarna Transport Co. AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132]: 1957 (1) LLJ 344: 1957 SCR 98; Abdulla Rowther v. State Transport Appellate Tribunals, AIR 1959 SC 896; infra, Chapter XIII; Jain, Cases, Chapter XII, Sec. O. 67 Gullapalli Nageswara Rao v. A.P. State Road Transport Corp., AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC

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139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319; Jain, Cases, 896. 68 J.Y. Kondala Rao v. A.P.S.R.T. Corp., AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]. Also see, infra, Chapter XI . 69 AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206]: (1961) 31 Comp Cas 387: 1962 (2) SCR 339 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206]. 70 Also see, Shivji Nathubahai v. U.O.I., AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13]: 1960 (2) SCR 775. 71 AIR 1965 SC 507 [LNIND 1963 SC 19] [LNIND 1963 SC 19] [LNIND 1963 SC 19]: 1964 (1) SCR 717. 72 AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346]: 1965 (1) LLJ 433: 1965 (2) SCR 366 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346]. 73 See under heading: 'Natural Justice in India', infra this chapter. See also under heading 'Administrative appeals or Revisions', infra, this chapter. AIR 1962 SC 1110 [LNIND 1962 SC 55] [LNIND 1962 SC 55] [LNIND 1962 SC 55]: 1962 Supp (3) SCC 36. 74 See under heading: 'Functional Approach', infra this chapter. AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277]: 1963 (3) SCR 767. 75 See R. v. Metropolitan Police Commissioner, (1953) 1 WLR 1150, where the Court denied natural justice when a cab-driver's licence was revoked for misconduct. Also, Ex p. Fry, (1954) 2 All ER 118. 76 (1951) AC 66: see, Jain, Cases, 473. 77 See, R. v. Electricity Commissioners, ex P. London Electricity Joint Committee Co., 1924 (1) KB 171 and, supra, note 18. 78 See, for example, Wade, Twilight of Natural Justice, 67 LQR 103; Gordon, The Cab Driver's Licence case, 70 LQR 203. 79 (1964) AC 40. For the text of this case, see, Jain, Cases, 475. 80 (1924) 1 KB 171. 81 (1964) AC 40. For the text of this case, see, Jain, Cases, 475. 82 Allen, Law and Orders, 242 (1965). 83 See, De Smith, The House of Lords on Natural Justice, 1963 Mod LR 543, 545; Comments on this case in 1963 Pub Law 269, 271: 80 LQR 105: 39 MLR 342: 25 MLR 455, 544-5 84 It may be interesting to note that in the U.S.A. as well, a similiar trend has emerged. There was a time when hearing was denied on the ground that only a privilege, and not a right, was being affected. This approach has now changed and the 'privilege' concept has been discarded for purposes of hearing. What was regarded as a the 'privilege' once, is now considered as a right, and a right of hearing is being conceded now where it was formerly denied. See, Goldberg v. Kelly, 397 US 254 (1970); Goss v. Lopez, (1975) 419 US 565; Davis, I Administrative Law Treatise, 452-506 (1958); Schwartz, Administrative Law, 226 (1976). 85 For example, see: Malloch v. Aberdeen Corporation, (1971) 2 All ER 127. 86 (1967) 1 All ER 226; Jain, Cases, 480. 87 See, for instance, the following cases where the concept of fairness has been applied by the courts: Re Pergamon Press Ltd., (1970) 3 All ER 535, also, infra, Chapter X ; Maxwell v. Dept. for Trade and Industry, (1974) QB 523; R. v. Hull Prison Board of Visitors, (1979) 3 All ER 545, Jain, Cases, 681. Where it was held that the Board of Visitors must act fairly while enforcing discipline in the prison; R. v. Army Board of the Defence Council, ex p. Anderson, [1992] 1 QB 169. 88 Sachs, L.J., stated in Pergamon Press, supra, note 41 at 541-42: ".., it is... not necessary to label the proceeding 'judicial', 'quasi-judicial', 'administrative', 'investigatory'; it is the characteristics of the proceedings that matter not the precise compartments into which they fall...". Also see, Jackson, Natural Justice (1979); Gravells, Fairness as the Basis of Procedure for Decision-making Bodies, 39 MLR 342 (1976); Clark, Natural Justice: Substance and Shadow, 1975 Pub Law 27; Shepard, Fairness and Audi Alteram Partem, 1975 Pub Law 242. 89 See the Report of the Committee on Ministers' Powers, 81-82 (1932); cf. Pradyat Kumar v. Chief Justice, Calcutta High Court, AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]: 1955 (2) SCR 1331; see, Jain, Cases, Chapter XI, Sec. I. 90 Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108]: 1962 Supp (3) SCR 713; per Kapur, J. in Radeshyam v. State of M.P., AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440.

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91 Schmidt v. Secretary of State for Home Affairs, (1969) 2 WLR 337: (1969) 2 Ch. D 149. 92 (1983) 2 AC 237. 93 (1983) 2 All ER 346; Jain, Cases, 487. 94 R. v. Liverpool Corp., et p. Liverpool Taxi Fleet Operators' Association, (1972) 2 QB 299. 1 C.C.S.U. v. Minister for Civil Service, (1985) AC 374; Jain, Cases, 491. There was a well established practice at G C H Q (Govt. Communications Headquarters) of consultation between the official and the trade union sides about any significant alteration in the service conditions of the staff members. There was no such legal right. Nevertheless. the House of Lords ruled that the staff members could have a legitimate expectation of consultation between union and the government whenever any important change was proposed to be made in the service conditions. As Lord Fraser of Tullybelton observed: "Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from existence of a regular practice which the claimant can reasonably expect to continue."; supra, Chapter VI, under 'Consultation.' 2 On Certiorari, see, infra, under Judicial Control. 3 See the next Chapter. 4 For discussion on this aspect, see, next Chapter. 5 Paul Jackson, Natural Justice, 102-3 (1979). 6 Northey, The Aftermath of the Furnell Decision, 6 NZULR 19 (1974). 7 For such situations, see, Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405. 8 See S.N. Jain, Administrative Law Aspects of Maneka Gandhi, (1979) 21 JILI 383. 9 Board of High School v. Ghanshyam Das, AIR 1962 SC 1110 [LNIND 1962 SC 55] [LNIND 1962 SC 55] [LNIND 1962 SC 55]: 1962 Supp (3) SCR 36; Jain, Cases, 616. 10 Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64]: 1965 (3) SCR 218. 11 For some examples of this approach see, under "Functional Approach" infra this chapter. 12 AIR 1987 SC 2257 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626]: (1987) 4 SCC 328: 1988 (1) LLJ 453 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626]. 13 A.K. Kraipak v. U.O.I., AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], 154: (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]; Jain, Cases, 504. For comments on this case, see, M.P. Jain, Bias and Administrative Power, 13 JILI 362 (1971) and also VI ASIL 88 (1970). 14 For facts and issues involved in Kraipak, see infra, Chapter XI . Also, Jain, Cases, 504 and Chapter X, Sec. B. 15 AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]at 154: (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. 16 M.P. Jain, The Evolving Indian Adm. Law, 45 (1983); M.P. Jain, Justice Bhagwati and the Indian Administrative Law, (1980) Ban LJ 1. Also see, D.F.O., South Kheri v. Ram Sanehi Singh, AIR 1973 SC 205: (1971) 3 SCC 864; Jain, Cases, 510. 17 Maneka Gandhi v. U.O.I., AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; Jain, Cases, 522. 18 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]at 626: (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]. 19 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; Jain, Cases, 529. 20 Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465; Jain, Cases, 552. 21 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379; infra, note 166; Jain, Cases, 536. Also see, R.L. Sharma v. Managing Committee, Hari Ram (Dr.) H.S. School, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], 2160. 22 Punjab National Bank v. All India New Bank of India Employee's Federation, (1997) 10 SCC 627, 638 (para 16): AIR 1997 SC 1086, relying on Gurmail Singh v. State of Punjab, (1991) 1 SCC 89 and U.O.I. v. D. Mohan, (1995) 3 SCC 115 [LNIND

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1995 SC 184] [LNIND 1995 SC 184] [LNIND 1995 SC 184]. 23 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685], 130 (para 10): AIR 1997 SC 152 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685]. 24 P. Janardhana Reddy v. State of A.P., (2001) 6 SCC 50 [LNIND 2001 SC 1335] [LNIND 2001 SC 1335] [LNIND 2001 SC 1335], 58-59 (para 10): AIR 2001 SC 2631 [LNIND 2001 SC 1335] [LNIND 2001 SC 1335] [LNIND 2001 SC 1335]. 25 Padma v. Hiralal Motilal Desarda, (2002) 7 SCC 564 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621], 577 (para 11): AIR 2002 SC 3252 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621]. 26 Haryana Financial Corporation v. Jagdamba Oil Mills, (2002) 3 SCC 496 [LNIND 2002 SC 73] [LNIND 2002 SC 73] [LNIND 2002 SC 73], 505 (paras 9 and 10): AIR 2002 SC 834 [LNIND 2002 SC 73] [LNIND 2002 SC 73] [LNIND 2002 SC 73]. See also Karnataka State Industrial Investment & Development Corporation Ltd. v. Cavalet India Ltd., (2005) 4 SCC 456 [LNIND 2005 SC 307] [LNIND 2005 SC 307] [LNIND 2005 SC 307], 467 (para 22). 27 Biman Krishna Bose v. United India Insurance Co. Ltd., (2001) 6 SCC 477 [LNIND 2001 SC 1575] [LNIND 2001 SC 1575] [LNIND 2001 SC 1575]: JT 2001 (6) SC 125 [LNIND 2001 SC 1575] [LNIND 2001 SC 1575] [LNIND 2001 SC 1575]. Govt. authorities to be fair, reasonable and alive to the situation, V.C. Mohan v. U.O.I., (2002) 3 SCC 451 [LNIND 2002 SC 160] [LNIND 2002 SC 160] [LNIND 2002 SC 160], 455 (para 13): AIR 2002 SC 1205 [LNIND 2002 SC 160] [LNIND 2002 SC 160] [LNIND 2002 SC 160]. See also Rajindra v. Commissioner of Police, Nagpur Division, 1994 Supp (2) SCC 714: 1994 SCC (Cri) 1706. 28 Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405 [LNIND 2002 SC 193] [LNIND 2002 SC 193]: (2002) 4 SCC 21. 29 SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 619 (para 132). 30 (1972) 2 All ER 6, 17 f-g: (1972) 1 WLR 534 (HL), as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 691-92 (para 133). 31 1982 AC 779: (1982) 3 WLR 159 (HL), as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 692 (para 34). 32 (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570], 387 (para 8): AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570], as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 692 (paras 135 and 136). 33 (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], 434 (para 48): AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 693 (para 137). 34 (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72], 55 (para 20) as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 693 (para 138). 35 M.S. Nally Bharat Engg. Co. Ltd. v. State of Bihar, (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72], 55 (para 19) as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 693 (para 138). 36 A.P. State Financial Corporation v. Vajra Chemicals, (1997) 7 SCC 76, 83 (para 21): AIR 1997 SC 3059. 37 State of A.P. v. Bollapragada Suryanarayana, (1997) 6 SCC 258 [LNIND 1997 SC 942] [LNIND 1997 SC 942] [LNIND 1997 SC 942], 261-262 (paras 7 and 8): AIR 1997 SC 3065 [LNIND 1997 SC 942] [LNIND 1997 SC 942] [LNIND 1997 SC 942]. 38 UNICHEM Laboratories Ltd. v. Collector of Central Excise, (2002) 7 SCC 145 [LNIND 2002 SC 540] [LNIND 2002 SC 540] [LNIND 2002 SC 540], 150 (para 12): AIR 2002 SC 3158 [LNIND 2002 SC 540] [LNIND 2002 SC 540] [LNIND 2002 SC 540]. 39 Union Public Service Commission v. Jagannath Mishra, (2003) 9 SCC 237, 240 (para 4), relying on Prem Parkash Kaluniya v. Punjab University, (1973) 3 SCC 424: AIR 1972 SC 1408. 40 Union of India v. Raja Mohd. Amir Mohd. Khan, (2005) 8 SCC 696 [LNIND 2005 SC 828] [LNIND 2005 SC 828] [LNIND 2005 SC 828], 707 (para 29): AIR 2005 SC 4383 [LNIND 2005 SC 828] [LNIND 2005 SC 828] [LNIND 2005 SC 828]. 41 (1999) 3 SCC 384 [LNIND 1999 SC 182] [LNIND 1999 SC 182] [LNIND 1999 SC 182], 395 (para 18): AIR 1999 SC 1204 [LNIND 1999 SC 182] [LNIND 1999 SC 182] [LNIND 1999 SC 182]. 42 De Smith: Judicial Review of Administrative Action, (1995), p. 399, as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 694 (para 138). 43 Wade & Forsyth: Administrative Law, (2005), pp. 492-94; De Smith: Judicial Review of Administrative Action, (1995), pp. 397-98, as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851]

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[LNIND 2005 SC 851], 694 (para 139). 44 C.K. Thakker: " From Duty to Act Judicially to Duty to Act Fairly". (2003) 4 SCC Journal Section 1, as cited in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 694 (para 140). 45 State of Orissa v. Binapani Dei (Dr.), AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: (1967) 2 SCR 625. 46 Also see, Apeejay (P.) Ltd. v. U.O.I., AIR 1978 Cal 577 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148], where the High Court has ruled that natural justice may have to be observed not only when statutory power is being exercised but even when a decision is taken administratively which involves civil consequences to a person. 47 See, S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. 48 (1987) 2 SCC 510: AIR 1987 SC 1239. 49 1995 Supp (2) SCC 305 [LNIND 1995 SC 417] [LNIND 1995 SC 417] [LNIND 1995 SC 417], 334: AIR 1995 SC 1512 [LNIND 1995 SC 417] [LNIND 1995 SC 417] [LNIND 1995 SC 417]. 50 Saij Gram Panchayat v. State of Gujarat, (1999) 2 SCC 366 [LNIND 1999 SC 64] [LNIND 1999 SC 64] [LNIND 1999 SC 64], 374 (para 22): AIR 1999 SC 826 [LNIND 1999 SC 64] [LNIND 1999 SC 64] [LNIND 1999 SC 64]. 51 On the doctrine of 'legitimate expectation,' See under heading: From Quasi-Judicial to Fairness', supra, this chapter. (1969) 2 WLR 337: (1969) 2 Ch. D. 149. 52 Indian Sugar & Refineries Ltd. v. Amarvathi Service Co-op. Society, AIR 1976 SC 775 [LNIND 1975 SC 591] [LNIND 1975 SC 591] [LNIND 1975 SC 591]: (1976) 1 SCC 318. 53 Navjyoti Coop. Group Housing Society v. India, AIR 1993 SC 155: (1992) 4 SCC 477; Jain, Cases, 496. 54 AIR 1993 Mad 216 [LNIND 1992 MAD 363] [LNIND 1992 MAD 363] [LNIND 1992 MAD 363]. 55 Ujjam Bai v. State of U.P., AIR 1962 SC 1621 [LNIND 1962 SC 584] [LNIND 1962 SC 584] [LNIND 1962 SC 584]: 1963 (1) SCR 778. For discussion on Art, 32, see, infra, under Judicial Control. 56 For explanation of these terms see infra, under Judicial Control. 57 For a discussion on certiorari see, infra, Vol. II. 58 Mahabir Jute Mills v. Shibban Lal Saxena, AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]: 1975 (2) LLJ 326: (1975) 2 SCC 818 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]. Also see, infra, Chapter XV . 59 See next Chapter. 60 See, infra, Chapter XIV . 61 For a discussion on Art. 136 see, infra, under Judicial Control. 62 See, infra, Chapter XV . 63 Ashwani Kumar v. State of Bihar, (1996) 7 SCC 577 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137], 609 (para 72): AIR 1996 SC 2833 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137]. See also Ashwani Kumar v. State of Bihar, (1997) 2 SCC 17: AIR 1997 SC 1628 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]. 64 Punjab & Sind Bank v. Sakatter Singh, (2001) 1 SCC 214 [LNIND 2000 SC 1689] [LNIND 2000 SC 1689] [LNIND 2000 SC 1689], 216 (para 4). 65 Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337 [LNIND 2005 SC 456] [LNIND 2005 SC 456] [LNIND 2005 SC 456], See also Gurjeewan Garewal (Dr.) v. Dumitra Dash (Dr.), (2004) 5 SCC 263 [LNIND 2004 SC 470] [LNIND 2004 SC 470] [LNIND 2004 SC 470]: AIR 2004 SC 2530 [LNIND 2004 SC 470] [LNIND 2004 SC 470] [LNIND 2004 SC 470]; State of Punjab v. Jagir Singh, (2004) 8 SCC 129 [LNIND 2004 SC 995] [LNIND 2004 SC 995] [LNIND 2004 SC 995]; Karnataka State Road Transport Corportation v. S.G. Koturappa, (2005) 2 Scale 493; State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, 684 (para 48). 66 Hira Nath Misra v. Principal, Rajendra Medical College, (1973) 1 SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: AIR 1973 1260. See also Shiv Sagar Tiwari v. U.O.I., (1997) 1 SCC 444 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], 461 (para 48): AIR 1997 SC 2725 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873]; Mangilal v. State of M.P., (2004) 2 SCC 447, 453-454 (para 10): AIR 2004 SC 1280.

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67 U.P. SRTC v. Ram Chandra Yadav, (2000) 9 SCC 327, 329 (para 4). 68 Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715], 76 (para 16): AIR 2000 SC 2198 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715]. 69 Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67], 969 (para 13): (1977) 2 SCC 256 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67], per Krishna Iyer, J. See also Shiv Sagar Tiwari v. U.O.I., (1997) 1 SCC 444 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], 461 (para 49): AIR 1997 SC 2725 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873]. 70 Raj Bahadur Narain Singh Sugar M. Ltd. v. Union of India, (1997) 6 SCC 81, 84 (paras 9 and 10). To The Same Effect Collector of Customs v. Tin Plate Co. of India Ltd., (1997) 10 SCC 538, 541 (para 4), affirming Tin Plate Co. of India Ltd. v. Collector of Customs, (1987) ELT (CEGAT), See also Commissioner of Customs v. Virgo Steels, (2002) 4 SCC 316 [LNIND 2002 SC 261] [LNIND 2002 SC 261] [LNIND 2002 SC 261], 322 (para 8): AIR 2002 SC 1745 [LNIND 2002 SC 261] [LNIND 2002 SC 261] [LNIND 2002 SC 261]. 71 CIT v. Pearl Mech. Engg. & Foundary Works (P.) Ltd., (2004) 4 SCC 597 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506], 603 (para 6): AIR 2004 SC 2345 [LNIND 2004 SC 506] [LNIND 2004 SC 506] [LNIND 2004 SC 506]. 72 State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731 [LNIND 2003 SC 203] [LNIND 2003 SC 203] [LNIND 2003 SC 203], 756 (para 30): AIR 2003 SC 1659 [LNIND 2003 SC 203] [LNIND 2003 SC 203] [LNIND 2003 SC 203]. 73 Wade & Forsyth: Administrative Law, 8th Edn., 2000, pp. 491-92. 74 (1949) 1 All ER 109, 118E (CA). See also Ganesh Santa Ram Sirur v. SBI, (2005) 1 SCC 13 [LNIND 2004 SC 1148] [LNIND 2004 SC 1148] [LNIND 2004 SC 1148], 29 (para 31): AIR 2005 SC 314 [LNIND 2004 SC 1148] [LNIND 2004 SC 1148] [LNIND 2004 SC 1148]. 75 1987 AC 625, 702: (1987) 1 All ER 1118, 1161c-e: (1987) 2 WLR 821. Wade & Forsyth: Administrative Law, 8th Edn., 2000, p. 493. 76 State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731 [LNIND 2003 SC 203] [LNIND 2003 SC 203] [LNIND 2003 SC 203], 757-58 (para 32): AIR 2003 SC 1659 [LNIND 2003 SC 203] [LNIND 2003 SC 203] [LNIND 2003 SC 203]. 77 Wade & Forsyth: Administrative Law, 8th Edn., 2000, at pp. 543-44. 78 Ecorts Farms Ltd. v. Commissioner, Kumaon Division, (2004) 4 SCC 281, 309-10 (para 64): AIR 2004 SC 2186. 79 Ashwani Kumar v. State of Bihar, (1996) 7 SCC 577 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137], 609 (para 73): AIR 1996 SC 2833 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137]. 80 Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715], 77 (para 19): AIR 2000 SC 2198 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715], relied on by implication in Punjab & Sind Bank v. Sakattar Singh, (2001) 1 SCC 214 [LNIND 2000 SC 1689] [LNIND 2000 SC 1689] [LNIND 2000 SC 1689], 216-17 (paras 4 and 5). 81 (2005) 7 SCC 764 [LNIND 2005 SC 711] [LNIND 2005 SC 711] [LNIND 2005 SC 711], 785-86 (para 44). 82 (1723) 1 STR 557: 93 ER 698. 83 (1990) 1 SCC 613 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639], 705 (para 124): AIR 1990 SC 1480 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639]. 84 Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, AIR 2005 SC 3520 [LNIND 2005 SC 719] [LNIND 2005 SC 719] [LNIND 2005 SC 719]: (2005) 7 SCC 627. 85 Board of High School v. Bagleshwar, AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277]: 1963 (7) FLR 415. Suresh Koshy v. Univ. of Kerala, AIR 1969 SC 198 [LNIND 1968 SC 161] [LNIND 1968 SC 161] [LNIND 1968 SC 161]: 1969 (1) SCR 317; Prem Prakash v. Punjab Univ., AIR 1972 SC 1408: (1973) 3 SCC 424; Hira Nath Mishra v. Rajendra Medical College, AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: (1973) 1 SCC 805: 1973 (2) LLJ 111 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]; Jain, Cases, Chapter IX, 695; Glynn. v. Keele University, (1971) 1 WLR 487, Jain Cases, 620: Bhupendrakumar Singhal v. P.R. Mehta, AIR 1990 Guj 49; Jain, Cases, 817; Board of Technical Education, UP. v. Dhanwantri Kumar, AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC 626] [LNIND 1990 SC 626]; Jain, Cases, 920. 86 AIR 1962 SC 1110 [LNIND 1962 SC 55] [LNIND 1962 SC 55] [LNIND 1962 SC 55]: 1962 Supp (3) SCR 36; Jain, Cases, 616. 87 AIR 1970 SC 1039 [LNIND 1969 SC 458] [LNIND 1969 SC 458] [LNIND 1969 SC 458]: (1970) 1 SCC 121.

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88 See, for example, N.N. Misra v. Vice-Chancellor, Gorakhpur Univ., AIR 1975 All 290, K.C. Cyriac v. Vice-Chancellor, AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41]; Narendra Nath v. High SCHOOL & Inter Education Board, AIR 1982 All 123; Ram Narayan Kishori v. Univ. of Calcutta, AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284]; Pradip Kumar v. Utkal Univ., AIR 1987 Ori 98 [LNIND 1986 ORI 63] [LNIND 1986 ORI 63] [LNIND 1986 ORI 63]; J.B. Parikh v. Univ of Bombay, AIR 1987 Bom 332 [LNIND 1987 BOM 124] [LNIND 1987 BOM 124] [LNIND 1987 BOM 124]; Madhusudan Paswan v. State of Bihar, AIR 1989 Pat 106. 89 Vibhu Kapoor v. Council of ISC Examination, AIR 1985 Del. 142. 90 AIR 1970 SC 1269 [LNIND 1970 SC 117] [LNIND 1970 SC 117] [LNIND 1970 SC 117]: (1970) 1 SCC 648; Jain, Cases, 622. Also, R. Radhakrishan v. Osmania Univ., AIR 1974 AP 283 [LNIND 1974 AP 67] [LNIND 1974 AP 67] [LNIND 1974 AP 67]. Shiv Sagar Tiwari v. U.O.I., (1997) 1 SCC 444 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873]. 461 (para 48): AIR 1997 SC 2725 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873]. 91 Also see, Madan Mohan v. Calcutta University, AIR 1979 Cal 67 [LNIND 1978 CAL 324] [LNIND 1978 CAL 324] [LNIND 1978 CAL 324]; Rai Kurnar Agarwala v. Calcutta University. AIR 1979 Cal 393 [LNIND 1979 CAL 57] [LNIND 1979 CAL 57] [LNIND 1979 CAL 57]; Upendra Baxi, Mass Copying: Should Courts act as Controller of Examinations ? Delhi Law Rev.. 144 (1977-78). However, in Recta v. Berhampur University, AIR 1993 Ori 27 [LNIND 1992 ORI 10] [LNIND 1992 ORI 10] [LNIND 1992 ORI 10], the High Court has held that where the number of candidates is small (in the instant case there were only 12 candidates), it may not be difficult or impracticable to give a hearing to each candidate even though the charge against them is that of mass copying. In Subhas, the number of candidates was large and to give all of them an opportunity of being heard would have resulted in holding up the functioning of the Examination Board. The Orissa view seems to be the right approach. 92 Karnataka Public Service Commission v. B.M. Vijaya Shankar, AIR 1992 SC 952 [LNIND 1992 SC 164] [LNIND 1992 SC 164] [LNIND 1992 SC 164]: (1992) 2 SCC 206. 93 U.P. Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani, AIR 1991 SC 909 [LNIND 1990 SC 480] [LNIND 1990 SC 480] [LNIND 1990 SC 480]: (1990) 4 SCC 633. 94 Hiranath Mishra v. Rajcndra Medical College, Ranchi, AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: (1973) 1 SCC 805: 1973 (2) LLJ 111 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]; Jain, Cases, Chapter IX, 695; S.K. Puri v. Principal, M.A. Mahavidyalaya, Jabalpur, AIR 1973 MP 278 [LNIND 1973 MP 43] [LNIND 1973 MP 43] [LNIND 1973 MP 43]; Bhupesh Gupta v. Himachal Pradesh, AIR 1990 HP 56; Rohtas Singh v. Haryana HBT Education, AIR 1988 P&.H 90. 95 AIR 1980 SC 1666 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND 1980 SC 366]: (1980) 4 SCC 480. 96 Also see, R. v. Senate of University of Aston, [1969] 2 All ER 964. 1 State of Maharashtra v. Ishwar Piraji Kalpatri, (1996) 1 SCC 542 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213], 549-50 (paras 15 and 16): AIR 1996 SC 722 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213]. 2 (1992) Supp (1) SCC 222, 268-69 (para 67): AIR 1991 SC 1260 [LNIND 1991 SC 184] [LNIND 1991 SC 184] [LNIND 1991 SC 184], relied on in State of Maharashtra v. Ishwar Piraji Kalpatri, (1996) 1 SCC 542 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213], 554 (para 17): AIR 1996 SC 722 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213]. See also State Anti-Corruption Bureau v. P. Suryaprakasam, 1999 SCC (Cri) 373; State of M.P. v. Krishna Chandra Saksena, 1996 (7) Scale 592: 1996 (8) Supreme 800: (1996) 11 SCC 439 [LNIND 1996 SC 1696] [LNIND 1996 SC 1696] [LNIND 1996 SC 1696]. 3 Administrative Law by David Foulkes (7th Edn.), p. 285. 4 1971 AC 297: (1969) 3 All ER 275: (1969) 3 WLR 706 (HL). 5 (1863) 14 CBNS 180: (1861-73) All ER Rep Ext 1554: 8 LT 278. 6 (1972) 2 All ER 6: (1972) 1 WLR 534 (HL). 7 1971 AC 297: (1969) 3 All ER 275: (1969) 3 WLR 706 (HL). 8 (1981) 2 All ER 246: 1981 QB 910: (1981) 3 WLR 660 (CA). 9 Asstt. Commissioner v. Veliappa Textiles Ltd., (2003) 11 SCC 405 [LNIND 2003 SC 794] [LNIND 2003 SC 794] [LNIND 2003 SC 794], 417 (para 8): AIR 2004 SC 86 [LNIND 2003 SC 794] [LNIND 2003 SC 794] [LNIND 2003 SC 794]. 10 (1995) 6 SCC 225 [LNIND 1995 SC 797] [LNIND 1995 SC 797] [LNIND 1995 SC 797], 226: 1995 SCC (Cri) 1095. 11 Asstt. Commissioner v. Velliappa Textiles Ltd., (2003) 11 SCC 405 [LNIND 2003 SC 794] [LNIND 2003 SC 794] [LNIND 2003 SC 794], 418 (para 8.1.0): AIR 2004 SC 86 [LNIND 2003 SC 794] [LNIND 2003 SC 794] [LNIND 2003 SC 794]. 12 Jain, Indian Constitutional Law, 776-93(1987). Also, supra, note 9.

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13 D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395: JT 1990 (3) SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. Also see M.P. Jain, Legal Status of Public Corporations, 18 JILI, 1 (1976); S.N. Jain, Wrongful Dismissal of an Employee: Judicial Remedies Available to Him, 6 Jl. Const. and Parl. Studies 1 (1972). 14 Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967 SC 254]: 1968 (2) LLJ 135; Jain, Cases, 503. 15 Jagdish Pandey v. Chancellor, University of Bihar, AIR 1968 SC 353 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]: 1968 (1) SCR 231. 16 Calcutta Dock Labour Board v. Jaffar Imam, AIR 1966 SC 282 [LNIND 1965 SC 92] [LNIND 1965 SC 92] [LNIND 1965 SC 92]: 1965 (2) LLJ 112: 1966 Crlj 189. 17 Mafatlal Naradas Barot v. J.D. Rathod, AIR 1966 SC 1364 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC 372]: 1966 (1) LLJ 437; Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]: (1975) 1 SCC 421: 1975 (1) LLJ 399 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], Jain, Cases, 372; Sirsi Municipality v. C.K.F. Tellis, AIR 1973 SC 855 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16]: (1973) 1 SCC 409: 1973 (1) LLJ 226 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16]; B.D. Gupta v. State of Haryana, AIR 1972 SC 2472 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]: (1973) 3 SCC 149: 1973 (1) LLJ 26 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]. 18 Jagdish Pandey v. Chancellor, Kurushetra University, AIR 1968 SC 353 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]: 1968 (1) SCR 231. 19 AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]: 1980 (1) LLJ 222; Jain, Cases, 572. 20 State of Haryana v. Rattan Singh, AIR 1977 SC 1512: (1977) 2 SCC 491: 1982 (1) LLJ 46. 21 Babulal v. State of Haryana, AIR 1991 SC 1310 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]: 1991 (2) LLJ 327: (1991) 2 SCC 335 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]; Om Prakash Goel v. Himachal Pradesh Tourism Development Corp. Ltd., AIR 1991 SC 1490 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267]: 1992 (1) LLJ 469: (1991) 3 SCC 291 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267]; Jain, Cases, 575. 22 Babulal v. State of Haryana, AIR 1991 SC 1310 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]: (1991) 2 SCC 335; Om Prakash Goel v. Himachal Pradesh Tourism Development Corpn. Ltd., AIR 1991 SC 1490 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267]: (1991) 3 SCC 291; Jain Cases, 575. Also, Anoop v. Govt. of India, AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]: 1984 (1) LLJ 337: (1984) 2 SCC 369 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]; Jain, Cases, 577; K.C. Joshi v. U.O.I., AIR 1985 SC 1046 [LNIND 1985 SC 143] [LNIND 1985 SC 143] [LNIND 1985 SC 143]: (1985) 3 SCC 153: 1985 (2) LLJ 416 [LNIND 1985 SC 143] [LNIND 1985 SC 143] [LNIND 1985 SC 143]; Workmen, Hindustan Steel Ltd., v. Hindustan Steel Ltd., AIR 1985 SC 251 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: 1985 (1) LLJ 267: 1984 Supp SCC 554; D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: (1991) Supp (1) SCC 600: 1991 (1) LLJ 395 [LNIND 1990 SC 489] [LNIND 1990 SC 489] [LNIND 1990 SC 489]: JT (1990) 3 SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]; Jarnail Singh v. State of Punjab, AIR 1986 SC 1626 [LNIND 1986 SC 177] [LNIND 1986 SC 177] [LNIND 1986 SC 177]: (1986) 3 SCC 277: 1986 (2) LLJ 268 [LNIND 1986 SC 177] [LNIND 1986 SC 177] [LNIND 1986 SC 177]; Rajinder Kaur v. Punjab, AIR 1986 SC 1790 [LNIND 1986 SC 586] [LNIND 1986 SC 586] [LNIND 1986 SC 586]: (1986) 4 SCC 141: 1987 (1) LLJ 93 [LNIND 1986 SC 254] [LNIND 1986 SC 254] [LNIND 1986 SC 254]. 23 Indian Airlines Corp. v. Sukhdeo Rai, AIR 1971 SC 1829: (1971) 2 SCC 192: 1971 (1) LLJ 496; Jain, Cases 369-371. Also see, infra, under Public Sector Undertakings for further discussion on this point. 24 (1964) AC 40. 25 [1971] 2 All ER 1278 (HL). For discussion on Malloch, See, M.P. Jain, Legal Status of Public Corps., 18 JILI 1 (1976): AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395: JT (1990) 3 SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. 26 [1982] 3 All ER 141. 27 AIR 1964 SC 1680 [LNIND 1963 SC 110] [LNIND 1963 SC 110] [LNIND 1963 SC 110]: 1964 (1) LLJ 1: 1964 (3) SCR 55 [LNIND 1963 SC 110] [LNIND 1963 SC 110] [LNIND 1963 SC 110]. 28 See under heading: 'A statute providing hearing in one situation but not in another' infra, this chapter. AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440. Contrast this with Re Nicholson & Board of Police Commrs., Jain, Cases, 481. 29 On this point see, infra, under Judicial Control. 30 Shyam Lal v. State of U.P., AIR 1954 SC 369 [LNIND 1954 SC 54] [LNIND 1954 SC 54] [LNIND 1954 SC 54]: 1954 (2) LLJ

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139; U.O.I. v. J.N. Sinha, AIR 1979 SC 40: (1970) 2 SCC 458: 1970 (2) LLJ 284 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]; E.V. Naidu v. U.O.I., AIR 1973 SC 698 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC 2]: (1973) 1 SCC 361; U.O.I. v. M.E. Reddy, AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]: (1980) 2 SCC 15: 1980 (1) LLJ 7 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]. Baikuntha Nath Das v. Chief District Medical Officer, Baripada, AIR 1992 SC 1029 [LNIND 1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176]: (1992) 2 SCC 299: 1992 (1) LLJ 784 [LNIND 1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176]; Jain, Cases, 579 and Chapter XV, infra; State of Sikkim v. Sonam Lama, AIR 1991 SC 534: 1991 Supp (1) SCC 179. 31 High Court of Judicature at Patna v. Pandey Madan Mohan Prasad Sinha, (1997) 10 SCC 409 [LNIND 1996 SC 763] [LNIND 1996 SC 763] [LNIND 1996 SC 763], 413 (para 6). 32 Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246]: (1974) 2 SCC 831: (1974) 2 LLJ 465 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246]; Anoop Jaiswal v. Govt. of India, AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]: (1984) 2 SCC 369: 1984 (1) LLJ 337 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]; U.O.I. v. Shaik Ali, AIR 1990 SC 450 [LNIND 1989 SC 500] [LNIND 1989 SC 500] [LNIND 1989 SC 500]: 1989 Supp (2) SCC 717. 33 Baldev Raj Chadha v. U.O.I., AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333]: (1980) 4 SCC 321: 1980 (2) LLJ 459 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333]; Ram Ekbal Sharma v. State of Bihar, AIR 1990 SC 1368 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831]: (1990) 3 SCC 504: 1990 (2) LLJ 601 [LNIND 1990 SC 269] [LNIND 1990 SC 269] [LNIND 1990 SC 269]. 34 Infra, Chapters XVII, XVIII and XIX 35 S.R. Venkataraman v. U.O.I., AIR 1979 SC 49: (1979) 2 SCC 491: (1979) 1 LLJ 25; Jain, Cases, Chapter XVI; Govt. Branch Press v. D.B. Balliappa, AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364]: (1979) 1 SCC 477; Baldev Raj v. U.O.I., AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333]: (1980) 4 SCC 321: 1980 (2) LLJ 459 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333]; J.D. Srivastava v. Madhya Pradesh, AIR 1984 SC 630 [LNIND 1984 SC 22] [LNIND 1984 SC 22] [LNIND 1984 SC 22]: (1984) 2 SCC 8: 1984 (1) LLJ 344 [LNIND 1984 SC 22] [LNIND 1984 SC 22] [LNIND 1984 SC 22]. 36 B.D. Gupta v. State of Haryana, AIR 1972 SC 2472 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]: (1973) 3 SCC 149: 1973 (1) LLJ 26 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]. Also see, M. Gopalkrishna Naidu v. State of Madhya Pradesh, AIR 1968 SC 240 [LNIND 1967 SC 244] [LNIND 1967 SC 244] [LNIND 1967 SC 244]: 1968 (2) LLJ 125. 37 Shiv Shankar v. U.O.I., AIR 1985 SC 514 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18]: (1985) 2 SCC 30: 1985 (1) LLJ 437 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18]. 38 Manzoor Ahmed Mazumder v. State of Meghalaya, (1997) 11 SCC 374. 39 O.P. Gupta v. U.O.I., AIR 1987 SC 2257 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626], 2265: (1987) 4 SCC 328 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626]: 1988 (1) LLJ 453 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626]. 40 State of Punjab v. Iqbal Singh, AIR 1976 SC 667 [LNIND 1976 SC 45] [LNIND 1976 SC 45] [LNIND 1976 SC 45]: (1976) 2 SCC 1: 1976 (2) LLJ 377 [LNIND 1976 SC 45] [LNIND 1976 SC 45] [LNIND 1976 SC 45]; State of U.P. v. Brahm Dutt Sharma, AIR 1987 SC 943 [LNIND 1987 SC 251] [LNIND 1987 SC 251] [LNIND 1987 SC 251]: (1987) 2 SCC 179; Jain, Cases, 564; State of Maharashtra v. M.H. Mazumdar, AIR 1988 SC 842 [LNIND 1988 SC 663] [LNIND 1988 SC 663] [LNIND 1988 SC 663]: 1988 (2) LLJ 62: (1988) 2 SCC 52 [LNIND 1988 SC 663] [LNIND 1988 SC 663] [LNIND 1988 SC 663]. 41 Sarjoo Prasad v. General Manager, AIR 1981 SC 148: (1981) 3 SCC 544: 1981 (2) LLJ 380 [LNIND 1981 SC 45] [LNIND 1981 SC 45] [LNIND 1981 SC 45]. Also, Orissa v. Binapani Dei, AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: 1967 (2) LLJ 266, Jain, Cases, 501. 42 AIR 1971 SC 1093 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54]: 1971 (1) LLJ 256: (1971) 1 SCC 396 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54]; Jain, Cases, 678. 43 D.K. Yadav v. J.M.A. Industries, (1993) 3 SCC 259 [LNIND 1993 SC 443] [LNIND 1993 SC 443] [LNIND 1993 SC 443]: 1993 (2) LLJ 696 [LNIND 1993 SC 443] [LNIND 1993 SC 443] [LNIND 1993 SC 443] Jain, Cases, 571. Also see, infra, Chapter XVIII ; Jain, Indian Const. Law, Chapter 24. 44 Bhagat Ram v. State of Punjab, AIR 1972 SC 1571 [LNIND 1972 SC 215] [LNIND 1972 SC 215] [LNIND 1972 SC 215]: (1972) 2 SCC 170. 45 D. Subba Rao v. State of Andhra Pradesh, AIR 1975 SC 94: (1975) 4 SCC 808. 46 State of Punjab v. Bakhtawar Singh, AIR 1972 SC 2083: 1972 SLR 85; Dr. Anil Kohli v. U.O.I., AIR 1994 Del. 279 [LNIND 1994 DEL 45] [LNIND 1994 DEL 45] [LNIND 1994 DEL 45]. 47 Ratna V Kushnoor v. State of Karnataka, AIR 1994 Kant 94 [LNIND 1993 KANT 202] [LNIND 1993 KANT 202] [LNIND 1993

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KANT 202]. See, infra, Chapter XIII for the provisions of the Consumer Protection Act. Also, Jain, Cases, Chapter XII, See, K. 48 Radhey Shyam v. State of Rajasthan, AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: 1967 (2) SCR 625: 1967 (2) LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]. 49 AIR 1987 SC 1463 [LNIND 1987 SC 470] [LNIND 1987 SC 470] [LNIND 1987 SC 470]: (1987) 3 SCC 251. 50 Sub-Committeee of Judicial Accountability v. U.O.I., AIR 1992 SC 320 [LNIND 1991 SC 968] [LNIND 1991 SC 968] [LNIND 1991 SC 968]: (1991) 4 SCC 699. 51 AIR 1974 SC 87 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]: (1973) 3 SCC 836. 52 Shrawan Kumar v. State of Bihar, AIR 1991 SC 309: 1991 Supp (1) SCC 330. 53 Union Territory of Chandigarh v. Dilbagh Singh, AIR 1993 SC 796 [LNIND 1992 SC 793] [LNIND 1992 SC 793] [LNIND 1992 SC 793]: (1993) 1 SCC 154: 1993 (2) LLJ 1043 [LNIND 1992 SC 793] [LNIND 1992 SC 793] [LNIND 1992 SC 793]; Jain, Cases, 506. 54 Shridhar v. Nagarpalika, Jaunpur, AIR 1990 SC 307 [LNIND 1989 SC 577] [LNIND 1989 SC 577] [LNIND 1989 SC 577]: 1990 Supp SCC 157. 55 AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: (1976) 3 SCC 585: 1977 (1) LLJ 68 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]; Jain, Cases, 878. 56 See, A.K. Kraipak v. U.O.I., AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. Chapter XI, under "Bias". 57 AIR 1982 SC 149: 1981 Supp SCC 87. 58 AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]: (1973) 1 SCC 380; Jain, Cases, 807. 59 AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 664: (1981) 51 Comp Cas 210; also see, infra, notes 223, 233-244. Jain, Cases, 542 60 AIR 1972 SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135]: (1971) 1 SCC 697. Also see, infra, Chapter XVI and Jain, Cases, Chapter XVIII . 61 Also see, Chuharmal v. U.O.I., AIR 1988 SC 1474 [LNIND 1988 SC 265] [LNIND 1988 SC 265] [LNIND 1988 SC 265]: (1988) 3 SCC 257; I.J. Rao v. Bibhuti Bhisham Bagh, AIR 1988 SC 1885: (1989) 3 SCC 202. Jain, Cases, Chapter IX, Sec. A. 645. A similar provision was made in S. Section 79, Gold Control Act, 1968. In Natulal v. Dy. Collector of Central Excise, AIR 1982 Guj 258, the High Court followed Malhotra while interpreting S. 79. Extension of time beyond six months could not be granted ex parte without giving to the party concerned an opportunity of being heard before granting an extension of time 62 Supra, Chapter II, Also supra, Chapter VI, under 'Consultation; infra, under Legislative function; Jain, Cases, Chapter II, and Chapter V, Sec C, 284-288, 310-316. 63 M.P. Electricity Board v. Harsh Wood Products, (1996) 4 SCC 522 [LNIND 1996 SC 813] [LNIND 1996 SC 813] [LNIND 1996 SC 813], 526 (para 9): AIR 1996 SC 2258 [LNIND 1996 SC 813] [LNIND 1996 SC 813] [LNIND 1996 SC 813]. 64 AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79]: (1984) 3 SCC 258; Jain, Cases, 666. 65 Mohd. Ibrahim v. S.T.A. Tribunal, AIR 1970 SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251]: (1970) 2 SCC 233. 66 (1972) 2 QB 299. 67 Also see, infra, under Promissory Estoppel and, under Legitimate Expectation. Under heading: 'From Quasi-Judicial to Fairness', supra, this chapter. 68 See under heading: 'From Quasi-Judicial to Fairness', supra, this chapter. Att. Gen. of Honkong v. Ng. Yuen Shiu, (1983) 2 All ER 346; R. v. Liverpool Taxi Fleet Operators' Association, (1972) 2 Q.B. 299 and C.C.S.U. v. Minister for Civil Service, (1985) A.C. 374. 69 Krishnagopal Datta v. R.T.A. Burdwan, AIR 1970 Cal 104 [LNIND 1969 CAL 116] [LNIND 1969 CAL 116] [LNIND 1969 CAL 116]. 70 Secretary, RTA, Guntur v. E. Rama Rao, AIR 1991 AP 11 [LNIND 1990 AP 199] [LNIND 1990 AP 199] [LNIND 1990 AP 199]; Jain, Cases, Chapter XII, Sec. O. 71 Sukhwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 64: (1982) 1 SCC 31. However, in Kashiram Dalmia, AIR 1987 Pat 265infra, note 126, the High Court insisted that even in case of a suspension of a trading licence, the licensee ought to be given an opportunity of being heard. To the same effect is T.S. Mahadevaial v. State of Karnataka, AIR 1986 Kant 185.

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72 Ananta Datta v. Dy Supdt of Police, AIR 1970 Goa 116. 73 Raj Kumar v. Licensing Authority, AIR 1985 All 325 [LNIND 1985 ALL 60] [LNIND 1985 ALL 60] [LNIND 1985 ALL 60]. 74 North Bihar Agency v. State of Bihar, AIR 1981 SC 1758: (1981) 3 SCC 131. 75 Bhagat Singh v. State of Punjab, AIR 1975 P&H 236; State of Punjab v. Ajudhta Nath, AIR 1981 SC 1374 [LNIND 1981 SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC 279]: (1981) 3 SCC 251. 76 Mahabir Prasad Santosh Kurnar v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; Jain, Cases, 856 J Also, C.M. Shah v. M. Patil, AIR 1970 Guj 67. 77 Sinha Govindji v. Deputy Controller of Imports, (1962) I SCJ 93: 1962 (1) SCR 540. 78 Board of Mining Examination v. Ramjee, AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]: (1977) 2 SCC 256; Jain, Cases, Chapter IX, Sec. I. 79 Devi Sahai v. Transport Appellate Tribunal, AIR 1970 Raj 48 [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119]; Shib Kumar v. State Transport Authority, AIR 1970 Cal 174 [LNIND 1969 CAL 41] [LNIND 1969 CAL 41] [LNIND 1969 CAL 41]. Other cases on cancellation of permits: Dhanmal v. R.T.A., AIR 1959 Mad 531 [LNIND 1959 MAD 20] [LNIND 1959 MAD 20] [LNIND 1959 MAD 20]; Krishna Gopal v. R.T.A. 1960 Raj LW 156; Madan Mohan v. S.T.A., AIR 1966 MP 144; S.M. Transport v. S.T.A. Tribunal, AIR 1965 Mad 471 [LNIND 1964 MAD 36] [LNIND 1964 MAD 36] [LNIND 1964 MAD 36]. 80 City Corner v. PA. to Collector, AIR 1976 SC 143 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369]: (1976) 1 SCC 214. 81 Kashiram Dalmia v. State, AIR 1978 Pat 265. 82 Purshottam Bahel v. State, AIR 1971 A. & N. 173. 83 [1970] 2 QB 417. 84 Raj Restaurant v. Municipal Corp., Delhi, AIR 1982 SC 1550: (1982) 3 SCC 388; Jain, Cases, 570. Also see, Paras Nath Prasad v. State of Bihar, AIR 1986 Pat 30. 85 Under S. 17(3), the licensing authority can revoke a licence for arms if the authority deems it necessary for the security of the public peace or for public safety. The authority is to record reasons for revoking the licence, and an appeal from the order can be taken to an appellate authority. 86 Kailash Nath v. State, AIR 1985 All 291 [LNIND 1985 SC 357] [LNIND 1985 SC 357] [LNIND 1985 SC 357]. Also, Sisir Kumar v. State, AIR 1970 Ori 110 [LNIND 1969 ORI 114] [LNIND 1969 ORI 114] [LNIND 1969 ORI 114]; K.N. Naik v. Addl. Dist. Magistrate, AIR 1971 Ker 162 [LNIND 1970 KER 172] [LNIND 1970 KER 172] [LNIND 1970 KER 172]. But, contra, Chhanga Pershad Sahu v. State, AIR 1988 All 142. 87 Infra, notes 270-280, under Post-decisional Hearing; see Jain, Cases, Chapter VIII, Sec. F (XVIII). 88 Wade, Constitutional Fundamentals, 55 (1980). 89 AIR 1975 SC 266 [LNIND 1974 SC 357] [LNIND 1974 SC 357] [LNIND 1974 SC 357]: 1975 (1) SCC 70; Jain, Cases, 511. 90 See also, infra, under Govt. Contracts, infra, this chapter. Also see, infra, Chapter XXIII . 91 Joseph Vilangandan v. Executive Engineer, AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108]: (1978) 3 SCC 36. Also see, Bhim Sain v. U.O.I., AIR 1981 Del. 260 [LNIND 1980 DEL 256] [LNIND 1980 DEL 256] [LNIND 1980 DEL 256]; Mohinder Singh v. U.O.I., AIR 1977 Del. 156 [LNIND 1976 DEL 142] [LNIND 1976 DEL 142] [LNIND 1976 DEL 142]; Raghunath Thakur v. State of Bihar, AIR 1989 SC 620 [LNIND 1988 SC 549] [LNIND 1988 SC 549] [LNIND 1988 SC 549]: (1989) 1 SCC 229; Jain, Cases, 513. 92 State Bank of India v. Kalapaka Transport Co., AIR 1979 Bom 250 [LNIND 1978 BOM 236] [LNIND 1978 BOM 236] [LNIND 1978 BOM 236]. 93 On legitimate expectation, See under heading: ' Quasi-Judicial to Fairness', supra, this chapter. 94 Sri Rama Engg. Contractors v. U.O.I., AIR 1981 AP 165 [LNIND 1981 AP 64] [LNIND 1981 AP 64] [LNIND 1981 AP 64]. 95 (1989) 1 SCC 229 [LNIND 1988 SC 549] [LNIND 1988 SC 549] [LNIND 1988 SC 549]: AIR 1989 SC 620 [LNIND 1988 SC 549] [LNIND 1988 SC 549] [LNIND 1988 SC 549]; Jain, Cases, 513. 96 AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465; Jain, Cases, 552. 97 Liberty Oil Mills v. U.O.I., AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381], 1283: (1984) 3 SCC 465 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381].

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98 AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110; Jain, Cases, 516. 1 See, infra, Chapter XVIII, for discussion on these Articles of the Constitution; also, Jain, Cases, Chapter XV . 2 Scheduled Castes and Weaker Section Welfare Association v. State of Karnataka, AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180]: (1991) 2 SCC 604. On 'legitimate expectation' See under heading: 'From Quasi-Judicial to Fairness', supra, this chapter. 3 Nanda Kishore v. State of M.P., AIR 1982 MP 33 [LNIND 1981 MP 68] [LNIND 1981 MP 68] [LNIND 1981 MP 68]. 4 AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC 246]: 1964 (5) SCR 294. The proceedings before the collector were also regarded as administrative in Abdul Hussain Tayabali v. State of Gujarat, AIR 1968 SC 432 [LNIND 1967 SC 275] [LNIND 1967 SC 275] [LNIND 1967 SC 275]: 1968 (1) SCR 597. In P.J. Jani v. State of Gujarat, AIR 1971 SC 1188 [LNIND 1971 SC 217] [LNIND 1971 SC 217] [LNIND 1971 SC 217]: (1971) 1 SCC 843, the question was left open. 5 AIR 1978 SC 515: (1978) 2 SCC 373. 6 Abdul Hussain Tayabali v. State of Gujarat, AIR 1968 SC 432 [LNIND 1967 SC 275] [LNIND 1967 SC 275] [LNIND 1967 SC 275]: 1968 (1) SCR 597; Bai Malimabu v. State of Gujarat, AIR 1978 SC 515: (1978) 2 SCC 373. 7 These provisions are made by the Companies Acquisition Rules made under the Land Acquisition Act. 8 State of Gujarat v. Ambalal Haiderbhai, AIR 1976 SC 2002 [LNIND 1976 SC 172] [LNIND 1976 SC 172] [LNIND 1976 SC 172]: (1976) 3 SCC 495, Jain, Cases, 514; State of Gujarat v. Chaturbhai, AIR 1975 SC 629 [LNIND 1975 SC 22] [LNIND 1975 SC 22] [LNIND 1975 SC 22]: (1975) 1 SCC 583. Also see, M.P. Jain, Administrative Process in Land Acquisition in ILI, Law of Urbanisation in India, 173-210 (1969). For more cases in the area of property, see, infra, this Chapter. 9 Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corp., AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506], 2135: 1992 Supp (1) SCC 5. 10 Pratap v. Gandhidham Development Authority, AIR 1985 Guj 68 [LNIND 1984 GUJ 200] [LNIND 1984 GUJ 200] [LNIND 1984 GUJ 200]. Also see, G. Kamalakumari v. Municipal Corp. of Hyderabad, AIR 1990 AP 159 [LNIND 1989 AP 50] [LNIND 1989 AP 50] [LNIND 1989 AP 50]. 11 143 ER 414 (1863). 12 AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505; Jain, Cases, 597. 13 Cantonment Board v. Taramani Devi, (1992) 2 Supp SCC 501: AIR 1992 SC 61. 14 AIR 1988 SC 1301 [LNIND 1988 SC 297] [LNIND 1988 SC 297] [LNIND 1988 SC 297]: (1988) 3 SCC 416; Jain, Cases, 594. Also, Assam Sillimanite Ltd. v. U.O.I., AIR 1990 SC 1417 [LNIND 1990 SC 161] [LNIND 1990 SC 161] [LNIND 1990 SC 161]: (1990) 3 SCC 182. 15 Serajuddin & Co. v. State of Orissa, AIR 1974 Cal 296 [LNIND 1973 CAL 227] [LNIND 1973 CAL 227] [LNIND 1973 CAL 227]; also see, infra, Chapter XII . 16 AIR 1973 SC 205: (1971) 3 SCC 864. 17 AIR 1981 SC 1374 [LNIND 1981 SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC 279]: (1981) 3 SCC 251. 18 AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137]: (1977) 3 SCC 457. 19 For further discussion on this topic, see, infra, under Government Contracts. 20 Dhakeswari Cotton Mills Ltd. v. Cmmr. of Income Tax, AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 (1) SCR 941; State of Kerala v. Shaduli, AIR 1977 SC 1627 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC 133]: (1977) 2 SCC 777. Also see, infra, next Chapter. 21 Mahadayal Prem Chandra v. Commercial Tax Officer, AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1959 SCR 551. 22 Orient Paper Mills v. Dy. Collector, AIR 1971 Ori 25; Prakash Cotton Mills v. B.N. Rangwani, AIR 1971 Bom 386 [LNIND 1970 BOM 61] [LNIND 1970 BOM 61] [LNIND 1970 BOM 61]. 23 Moopil Nair v. State of Kerala, AIR 1961 SC 552 [LNIND 1960 SC 331] [LNIND 1960 SC 331] [LNIND 1960 SC 331]: 1961 (2) SCR 77. 24 Siemens Engg. and Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. But see, Glaxo Laboratories v. Venkateswaran, AIR 1959 Bom 372 [LNIND 1958 BOM 120] [LNIND 1958 BOM 120] [LNIND 1958 BOM 120].

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25 AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107]: (1965) 57 ITR 349. 26 Board of Revenue v. Vidyawati, AIR 1962 SC 1217 [LNIND 1962 SC 497] [LNIND 1962 SC 497] [LNIND 1962 SC 497]: 1962 Supp (3) SCR 50. 27 Indo-China Navigation v. Jasjit Singh, AIR 1964 SC 1140 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25]: 1964 (2) Crlj 234. 28 In Kantilal Babulal & Bros. v. H.C. Patel, AIR 1968 SC 445 [LNIND 1967 SC 288] [LNIND 1967 SC 288] [LNIND 1967 SC 288]: 1968 (1) SCR 735, a case involving penalty under a sales tax statute, the Supreme Court stated that "the imposition of a penalty on a person is at least of a quasi-judicial character." 29 AIR 1989 SC 1038 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710]: (1989) 1 SCC 628; Jain, Cases, 608. Also, C.I.T. v. B.N. Bhattacharya, (1979) 4 SCC 121 [LNIND 1979 SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274]: AIR 1979 SC 1725 [LNIND 1979 SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274]. Also see, infra, Chapter XIII and Jain, Cases, Chapter XII, Sec. R. 30 AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64]: 1965 (3) SCR 218. 31 See under sub-heading: 'Lis inter parts', under heading, ' Quasi-Judicial: Natural Justice' supra, this chapter. 32 AIR 1974 P&H 334. 33 AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]. 34 Sadhu Singh Sunder Singh v. Mangalgir M. Dera, AIR 1956 Pepsu 65; Abu Backer Adam Sait v. Adv. Gen., AIR 1954 TC 331. 35 Delhi Administration v. V.C. Shukla, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179]: (1980) 2 SCC 665. 36 AIR 1987 SC 9 [LNIND 1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420]: (1986) 4 SCC 678. 37 Suresh v. State, AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND 1969 MP 9] [LNIND 1969 MP 9]. J.R. Sirsat v. Fiqueredo, AIR 193 Goa 32; T.V.R. Radhakrishnan v. State of Tamil Nadu, AIR 1974 SC 1862: (1974) 2 SCC 496; Duryappah v. Fernando, (1967) 2 AC 337; N.P. Singh v. State of Bihar, AIR 1975 Pat 249; Malkapur Municipality v. State, AIR 1977 Bom 244 [LNIND 1976 BOM 190] [LNIND 1976 BOM 190] [LNIND 1976 BOM 190]. 38 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. Jain, Cases, 536. 39 Also see, Vidarbha Nagarpalika Parishad v. State of Maharashtra, AIR 1986 Bom 147 [LNIND 1985 BOM 176] [LNIND 1985 BOM 176] [LNIND 1985 BOM 176]. 40 T.V.R. Radhakrishnan Chettiar v. State of Tamil Nadu, AIR 1974 SC 1862: (1974) 2 SCC 496. 41 Jathedar v. State, AIR 1982 P&H 16. 42 People's Education Society v. State of Karnataka, AIR 1980 Kant 151 [LNIND 1979 KANT 133] [LNIND 1979 KANT 133] [LNIND 1979 KANT 133]. 43 Durga Shankar v. State, AIR 1982 Ori 20 [LNIND 1981 ORI 64] [LNIND 1981 ORI 64] [LNIND 1981 ORI 64]. 44 Surya Vijoy Singh v. State of Bihar, AIR 1970 Pat 213. 45 Raghunath Pandey v. State of Bihar, AIR 1982 Pat 1. 46 Organs Chemical Industries v. U.O.I., AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: 1979 (2) LLJ 416: (1979) 4 SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]. 47 Coal Mines P.F. Commr. v. Lalla, AIR 1976 SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47]: (1976) 1 SCC 964: 1976 (2) LLJ 91 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47]. 48 A.S. Reddy v. Conservator of Forests, AIR 1976 SC 782 [LNIND 1975 SC 337] [LNIND 1975 SC 337] [LNIND 1975 SC 337]: (1976) 1 SCC 106. Also, D.F.O., South Kheri v. Ram Sanehi, AIR 1973 SC 205: (1971) 3 SCC 864. 49 Indian Sugar & Refineries Ltd. v. Amarvathi Service Coop. Society, AIR 1976 SC 775 [LNIND 1975 SC 591] [LNIND 1975 SC 591] [LNIND 1975 SC 591]: (1976) 1 SCC 318. Also see, A.S.C. Society v. U.O.I., AIR 1970 Mys 243, where the High Court decided a similar question. The court ruled that the sugarcane growers ought to be heard as granting exemption to the sugarmill from payment of additional price adversely affected their statutorily accrued right to get additional price for the sugarcane supplied by them to the mill. 50 On 'legitimate expectation', See under heading: 'From Quasi-Judicial to Fairness', supra, this chapter.

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51 AIR 1971 Ass 32. 52 Supra, Chapter III. 53 S.M. Mallewar v. State of Maharashtra, AIR 1993 Bom 327. 54 Md. Ayub Khan v. Commissioner of Police, AIR 1965 SC 1623: 1965 (2) SCR 884. 55 President, Commonwealth Co-operative Society v. Joint Registrar, AIR 1971 Ker 34. 56 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; Jain, Cases, 529. 57 A.N. Dyes Corp. v. State, AIR 1981 AP 386 [LNIND 1981 AP 156] [LNIND 1981 AP 156] [LNIND 1981 AP 156]. 58 Maneka Gandhi v. U.O.I., AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; Jain, Cases, 522. 59 S. Prasanna v. Sr. Divisional Manager, L.I.C. of India, AIR 1993 Mad 150 [LNIND 1992 MAD 398] [LNIND 1992 MAD 398] [LNIND 1992 MAD 398]. 60 P.F. Co-op. Society v. Collector, Thanjavur, AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185]; IKOP Laidakol Fishing Co op. Society Ltd. v. State of Manipur, AIR 1982 Gau 14. 61 Khagendra Nath v. Calcutta University, AIR 1974 Cal 187 [LNIND 1974 CAL 33] [LNIND 1974 CAL 33] [LNIND 1974 CAL 33]. 62 Management of M/S Nally Bharat Engineering Co. Ltd. v. State of Bihar, (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72]: 1990 (2) LLJ 211 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72]. 63 National Textile Workers Union v. N.R. Ramakrishnan, AIR 1983 SC 75: 1983 (1) LLJ 45: (1983) 1 SCC 228. 64 An Advocate, AIR 1989 SC 245; Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 4 SCC 537; Jain, Cases, 786. Also see, Chapter X, infra. 65 Jagdish Pandey v. Chancellor Bihar University, AIR 1968 SC 353 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]: 1968 (1) SCR 231. 66 Gramophone Co. of India Ltd. v. Birendra Bahadur Pande, AIR 1984 SC 667 [LNIND 1984 SC 51] [LNIND 1984 SC 51] [LNIND 1984 SC 51]: (1984) 2 SCC 534. 67 A.I. Amitabh Bachan's Fans Ass. v. State of Tamil Nadu, AIR 1993 Mad 108 [LNIND 1992 MAD 321] [LNIND 1992 MAD 321] [LNIND 1992 MAD 321]. 68 G. Rama Subbu Pillai v. Govt. of India, AIR 1980 Mad 23 [LNIND 1979 MAD 32] [LNIND 1979 MAD 32] [LNIND 1979 MAD 32]. 69 Nakkuda Ali v. Jayaratne, (1951) AC 66; Jain, Cases, 473. 70 For further discussion on this topic, see, infra, Chapter XXIII, under Government Contracts and Conferral of Benefits. 71 Infra, Chapter XV. 72 AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]: 1958 SCR 1240. 73 Nagendra Nath Bora v. Commissioner, Hills District, AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]at 406: 1958 SCR 1240 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]: 1958 SCJ 798 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]. 74 AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13]: 1960 SCJ 579. 75 On the notion of lis; See under sub-heading: 'Lis inter partes', under heading ' Quasi-Judicial: Natural Justice', supra, this chapter. 76 Also see, M.P. Industries v. U.O.I., AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466; Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64]: 1965 (3) SCR 218; D.N. Roy v. State of Bihar, AIR 1971 SC 1045 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402]: (1970) 3 SCC 119. 77 Dwarka Nath v. I.T.O., AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107]: (1965) 57 ILR 349. Also see, infra, Chapter XIII .

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78 AIR 1971 SC 748: (1972) 4 SCC 78. 79 Also see, Surinder Singh v. Central Govt., AIR 1986 SC 2166 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352], 2170: (1986) 4 SCC 667 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352]; Usha Devi v. State, AIR 1990 MP 268 [LNIND 1989 MP 231] [LNIND 1989 MP 231] [LNIND 1989 MP 231]; Piara Singh v. State of Punjabi, (2000) 5 SCC 765 [LNIND 2000 SC 913] [LNIND 2000 SC 913] [LNIND 2000 SC 913], 771 (para 17); see under sub-heading: ' Lis inter partes', under heading ' Quasi-judicial: Natural Justice', supra, this chapter; Jain, Cases, Chapter XIII, Sec. V; Collector of Central Excise, Madras v. M.M. Rubber & Co., AIR 1991 SC 2141 [LNIND 1991 SC 431] [LNIND 1991 SC 431] [LNIND 1991 SC 431]: 1992 Supp (1) SCC 471; Jain, Cases, Chapter XIII, Sec. E. 80 D.N. Roy v. State of Bihar, AIR 1971 SC 1045 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402]: (1970) 3 SCC 119. 81 Sanwal Ram v. Additional District Magistrate, AIR 1982 Raj 139 [LNIND 1981 RAJ 118] [LNIND 1981 RAJ 118] [LNIND 1981 RAJ 118]. 82 Chapters XVII, XVIII & XIX. 83 De Smith: Judicial Review of Administrative Action, 4th Edn., p. 186. 84 Pearlberg v. Varty, [1972] 1 WLR 534 at 540 (Lord Hailsham LC). 85 Cited in Wade & Forsyth: Administrative Law, 9th Edn., 2005, pp. 532-33. 86 AIR 1950 SC 222 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32]: 1950 SCJ 451. 87 Davis, I Administrative Law Treatise, 413, 506 (1958). 88 Infra, Chapters XVII-XIX. 89 Supra, this chapter. 90 AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744. 91 K. Channappa v. U.O.I., AIR 1991 Kant 18 [LNIND 1990 KANT 179] [LNIND 1990 KANT 179] [LNIND 1990 KANT 179]. 92 AIR 1970 SC 1789 [LNIND 1969 SC 307] [LNIND 1969 SC 307] [LNIND 1969 SC 307]: (1969) 2 SCC 774. 93 AIR 1972 SC 896 [LNIND 1972 SC 91] [LNIND 1972 SC 91] [LNIND 1972 SC 91]: (1972) 1 SCC 655. 94 AIR 1972 SC 2656 [LNIND 1972 SC 488] [LNIND 1972 SC 488] [LNIND 1972 SC 488]: (1973) 1 SCC 89. 95 (1997) 3 SCC 636 [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65], 637 (para 4): AIR 1997 SC 1434 [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65]. 1 (1997) 3 SCC 636 [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65], 637 (para 4): AIR 1997 SC 1434 [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65] [LNINDORD 1997 SC 65]. 2 For a few more cases, see, President, Commonwealth Coop. Society v. Joint Registrar, AIR 1971 Ker 34; Jairam Ramchandra Sirsat v. J.A. Fiquerdo, AIR 1973 Goa 32; Reserve Bank of India v. R.N. Dutt, AIR 1975 Cal 48 [LNIND 1974 CAL 41] [LNIND 1974 CAL 41] [LNIND 1974 CAL 41]; Assistant Collector of Customs v. Malhotra, AIR 1972 SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135]: (1971) 1 SCC 697; I.J. Rao v. Bibhuti Bhishan Bagh, AIR 1988 SC 1885: (1989) 3 SCC 202. 3 Jairam Ramchandra Sirsat v. J.A. Fiqueredo, AIR 1973 Goa 32. 4 Radeshyam v. State of M.P., AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440; see, infra, note 256. 5 Also see, infra, Chapters XVII, XVIII and XIX . 6 See also infra, this chapter (1964) AC 40. 7 AIR 1966 SC 91 [LNIND 1965 SC 174] [LNIND 1965 SC 174] [LNIND 1965 SC 174]: 1966 (1) SCR 243. 8 AIR 1967 SC 1507 [LNIND 1967 SC 64] [LNIND 1967 SC 64] [LNIND 1967 SC 64]: 1967 Crlj 1390. 9 Secretary, RTA,Guntur v. E. Rama Rao, AIR 1991 AP 11 [LNIND 1990 AP 199] [LNIND 1990 AP 199] [LNIND 1990 AP 199]. 10 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405. 11 Swadeshi Cotton Mills v. U.O.I., AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1

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SCC 73. 12 Jain, Indian Constitutional Law, 766-801. Also see, Babu Lal v. State of Haryana, AIR 1991 SC 1310 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]: 1991 (2) LLJ 327: (1991) 2 SCC 335 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]. 13 U.O.I v. Tulsiram Patel, AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398: 1985 (2) LLJ 206 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]; See also Sahadeo Singh v. U.O.I., (2003) 9 SCC 75 [LNIND 2003 SC 168] [LNIND 2003 SC 168] [LNIND 2003 SC 168], 79 (para 9): AIR 2003 SC 1568 [LNIND 2003 SC 168] [LNIND 2003 SC 168] [LNIND 2003 SC 168]; Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., (2005) 7 SCC 764 [LNIND 2005 SC 711] [LNIND 2005 SC 711] [LNIND 2005 SC 711], 780-82 (para 29 and 30). Jain, Cases, 467; supra, note 2. 14 Infra, Chapter XIX. 15 Art. 311 (3). 16 The Tulsiram Patel ruling has been reiterated in Satyavir Singh v. U.O.I., AIR 1986 SC 555 [LNIND 1985 SC 283] [LNIND 1985 SC 283] [LNIND 1985 SC 283]: (1985) 4 SCC252: 1986 (1) LLJ 36 [LNIND 1985 SC 283] [LNIND 1985 SC 283] [LNIND 1985 SC 283]; A.K. Sen v. U.O.I., AIR 1986 SC 335: (1985) 4 SCC 641. 17 See, infra, Chapter XVII . 18 AIR 1991 SC 1043 [LNIND 1991 SC 9] [LNIND 1991 SC 9] [LNIND 1991 SC 9]: (1991) 1 SCC 729: 1991 (1) LLJ 308 [LNIND 1991 SC 9] [LNIND 1991 SC 9] [LNIND 1991 SC 9]. Also see, Jaswant Singh v. State of Punjab, AIR 1991 SC 385 [LNIND 1990 SC 743] [LNIND 1990 SC 743] [LNIND 1990 SC 743]: (1991) 1 SCC 362: 1991 (1) SLR 180. Here also the Court found that the dispensation of the inquiry was based solely on the ipse dixit of the disciplinary authority and that there was no satisfactory basis for the same. 19 D.T.C. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824], 166: 1990 (5) SLR 311 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: JT 1990 (3) SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824];infra, Chapter XVIII; Jain, Cases, Chapter XV. Also see, Central Inland Water Transport Corp. v. Brojonath, (1986) 3 SCC 156 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]; Jain, Cases, Chapter IV, 228; Workmen, Hindustan Steel Ltd. v. Hindustan Steel Ltd., AIR 1985 SC 251 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: 1985 (1) SLR 735 : 1984 (2) Scale 927 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]; Antonio S.C. Pereira v. Ricardina Noronha, (2006) 7 SCC 740 [LNIND 2006 SC 731] [LNIND 2006 SC 731] [LNIND 2006 SC 731]. 20 AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], 881-82 (para 76): (1978) 2 SCR 272 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], 316. 21 AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]: (1980) 2 SCC 15: 1980 (1) LLJ 7 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]; Jain, Cases, Chapter XIV, Sec D. 22 For comments on Reddy, see XVI ASIL, 371-72 (1980). 23 See, infra, Chapters XVII - XIX . 24 Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405. 25 See under 'Discretionary powers', supra, under this chapter. 26 See, R.B. Shreeram Durga Prasad v. Settlement Commission, AIR 1989 SC 1039: (1989) 1 SCC 628. 27 AIR 1993 SC 1082: 1993 Supp (4) SCC 260: 1993 (1) Crimes 308. 28 Umrao Singh Chaudhary (Dr.) v. State of M.P., (1994) 4 SCC 328 [LNINDORD 1994 SC 21] [LNINDORD 1994 SC 21] [LNINDORD 1994 SC 21] : 1994 (4) SLR 24. 29 For Norms of Natural Justice, see, infra, next Chapter. 30 Malloch v. Aberdeen Corporation, (1971) 2 All ER 127. 31 Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 4 SCC 537, see, infra, next Chapter; Jain, Cases, Chapter IX, Sec. H, 786. 32 Furnell v. Whangarei High SCHOOLS Board, (1973) AC 660. 33 For comments on Furnell, see J.M. Evans, Some Limits to the SCOPE of Natural Justice 36 MLR 439 (1973); Northey, The Aftermath of the Furnell Decision, 6 NZULR 19 (1974). Wade has characterised the Fumell decision as doubtful: Administrative Law, 504 (1982).

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34 Subhas Oil Industries v. State of U.P., AIR 1954 All 19 [LNIND 1952 ALL 222] [LNIND 1952 ALL 222] [LNIND 1952 ALL 222]; Chhanga Pd. Sahu v. State, AIR 1988 All 142. 35 Subhas Oil Industries v. State of U.P., AIR 1954 All 19 [LNIND 1952 ALL 222] [LNIND 1952 ALL 222] [LNIND 1952 ALL 222]. 36 Board of High School and Intermediate Education, U.P. v. Chitra, AIR 1970 SC 1039 [LNIND 1969 SC 458] [LNIND 1969 SC 458] [LNIND 1969 SC 458]: (1970) 1 SCC 121. 37 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. No prejudice caused, no violation, State of Karnataka v. Mangalore University Non-Teaching Employees' Association, (2002) 3 SCC 302 [LNIND 2002 SC 154] [LNIND 2002 SC 154] [LNIND 2002 SC 154], 313 (para 11): AIR 2002 SC 1223 [LNIND 2002 SC 154] [LNIND 2002 SC 154] [LNIND 2002 SC 154]. 38 Swadeshi Cotton Mills v. U.O.I., AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 664. Also see, Madan Sharma v. B.S.E. Board, AIR 1971 Pat 371: Management of Nally Bharat Engineering Co. Ltd. v. State of Bihar, (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72]: 1990 (2) LLJ 211 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72]. 39 CATA Sales Coop. Society v. A.P. Govt., AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275]: (1977) 4 SCC 337; Jain, Cases, 656. 40 (1970) 1 Chapter 345, 402. 41 Also see, Ridge v. Balldwin, (1964) AC 40. A similar view has been taken in the U.S.A.: Margarite Fuentes et at. v. Robert L. Shevin, (1972) 32 L. Ed 2d 556, 574. Also see, infra, Chapter XII . 42 AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440. 43 AIR 1970 SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251]: (1970) 2 SCC 233. 44 S.R. Tewari v. District Board, AIR 1964 SC 1680 [LNIND 1963 SC 110] [LNIND 1963 SC 110] [LNIND 1963 SC 110]: (1964) 3 SCR 55: 1964 (1) LLJ 1 [LNIND 1963 SC 110] [LNIND 1963 SC 110] [LNIND 1963 SC 110]. Also see Chhanga Pershad Sahu v. State, AIR 1988 All 142. 45 AIR 1976 SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47]: (1976) 1 SCC 964: 1976 (2) LLJ 91 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47]. 46 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. 47 S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. 48 Swadeshi Cotton Mills v. U.O.I., AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 664. 49 See, Maneka Gandhi v. U.O.I., AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. Also see Liberty Oil Mills v. U.O.I., AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465. 50 See, De Smith, Judicial Review of Administration Action, 187 (1980). 51 S.R. Tewari v. District Board, AIR 1964 SC 1680 [LNIND 1963 SC 110] [LNIND 1963 SC 110] [LNIND 1963 SC 110]: 1964 (1) LLJ 1. 52 Nicholson v. Haldimand Norfolk Regional Board of Commissioners of Police, (1979) 1 SLR 331; 88 DLR (3d) 671 (1979); Jain, Cases, 481; supra, note 91. 53 AIR 1978 Kant 148 [LNIND 1978 KANT 36] [LNIND 1978 KANT 36] [LNIND 1978 KANT 36]. 54 1970 AC 1111, 1118: (1970) 2 WLR 456 (PC). 55 Pu Myllai Hlychho v. State of Mizoram, (2005) 2 SCC 92 [LNIND 2005 SC 31] [LNIND 2005 SC 31] [LNIND 2005 SC 31], 101 (para 24): AIR 2005 SC 1537 [LNIND 2005 SC 31] [LNIND 2005 SC 31] [LNIND 2005 SC 31]. 56 (1994) 5 SCC 267 [LNIND 1994 SC 557] [LNIND 1994 SC 557] [LNIND 1994 SC 557]: 1994 SCC (L&S) 1063: (1094) 27 ATC 855. 57 (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. 58 Pu Myllai Hlychho v. State of Mizoram, (2005) 2 SCC 92 [LNIND 2005 SC 31] [LNIND 2005 SC 31] [LNIND 2005 SC 31],

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101 (paras 22 and 26): AIR 2005 SC 1537 [LNIND 2005 SC 31] [LNIND 2005 SC 31] [LNIND 2005 SC 31]. 59 AIR 1993 SC 1440 [LNIND 1993 SC 149] [LNIND 1993 SC 149] [LNIND 1993 SC 149], as cited in Krishna v. State of Maharashtra, (2001) 2 SCC 441 [LNIND 2001 SC 210] [LNIND 2001 SC 210] [LNIND 2001 SC 210], 447 (para 11): AIR 2001 SC 695 [LNIND 2001 SC 210] [LNIND 2001 SC 210] [LNIND 2001 SC 210]. 60 Krishna v. State of Maharashtra, (2001) 2 SCC 441 [LNIND 2001 SC 210] [LNIND 2001 SC 210] [LNIND 2001 SC 210], 447 (para 11): AIR 2001 SC 695 [LNIND 2001 SC 210] [LNIND 2001 SC 210] [LNIND 2001 SC 210]. 61 Sadhu Singh v. Delhi Administration, AIR 1966 SC 91 [LNIND 1965 SC 174] [LNIND 1965 SC 174] [LNIND 1965 SC 174]: 1966 (1) SCR 243. 62 Siddhartha v. Calcutta Municipality, AIR 1985 Cal 153 [LNIND 1984 CAL 196] [LNIND 1984 CAL 196] [LNIND 1984 CAL 196]. 63 Chowgule R.E. and C. Co v. Govt. of Goa, AIR 1970 Goa 80. Also see, State of Assam v. Bharat Kala Bhandar, AIR 1967 SC 1768. In Radeshyam v. State of M.P., AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]: 1959 SCR 1440, the need to take swift action by the Administration was also emphasized upon as a factor to deny hearing to the municipality while appointing an administrator. 64 Jain, Cases, 630. 65 Ashwani Kumar v. State of Bihar, (1996) 7 SCC 577 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137], 609 (para 73): AIR 1996 SC 2833 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137]. See also Ashwani Kumar v. State of Bihar, (1997) 2 SCC 1 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]: AIR 1997 SC 1628 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]. 66 Infra, next Chapter. 67 Swadeshi Cotton Mills v. U.O.I., AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 73: (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]. 68 The Allahabad High Court had held in Janki Sugar Mills v. U.O.I., AIR 1976 All 99, that natural justice is not necessary under S. 18-AA because under it the government is to take prompt action. 69 AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], at 842: (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]. Also see, next Chapter. 70 Also see under Post-Decisional Hearing, infra, this Chapter. 71 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405. 72 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379. 73 Shephard K.I. v. Union of India, AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: 1988 (1) LLJ 162: (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]; Jain, Cases, 588. 74 Swadeshi Cotton Mills v. U.O.I., AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 73: (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]. 75 See, Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], 893: (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]; Jain, Cases, 286, 354; Mohd. Ibrahim Khan v. State of M.P., AIR 1980 SC 517 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384]: (1979) 4 SCC 458; also infra, under Legislative Function. 76 Board of High School v. Ghanshyam, AIR 1962 SC 1110 [LNIND 1962 SC 55] [LNIND 1962 SC 55] [LNIND 1962 SC 55]: 1962 Supp (3) SCR 36. 77 The Board of H.S. and Inter Ed., U.P. v. Chitra, AIR 1970 SC 1039 [LNIND 1969 SC 458] [LNIND 1969 SC 458] [LNIND 1969 SC 458]: (1970) 1 SCC 121. 78 See Byse, Opportunity to be Heard in Licence Issuance, 101 Univ. of Pennsylvania L.R. 57 (1952). Reviewing the procedures prevalent in the U.S. in case of liquor licensing where the number of applications is large, the author says: "Between the extremes of no hearings and hearings on all applications is the widely adopted procedure of granting a hearing if, after the application has been refused, the applicant seeks opportunity to be heard." Ibid., 72. The author has found three main variants of procedure in these cases: (i) hearing by the agency refusing the application; (ii) hearing by an appellate administrative authority; and (iii) de novo hearing by a court. 79 Supra, Chapter III and Chapter VI under "Consultation." 80 (1972) 1 WLR 1372. Also see, Chapter III, supra.

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81 Also see, Paul Jackson, Natural Justice, 169 (2nd. Ed.). 82 See, Natraj Construction Co. v. State of A.P., AIR 1984 AP 59 [LNIND 1983 AP 54] [LNIND 1983 AP 54] [LNIND 1983 AP 54]; D.C. & G Mills Co. Ltd. v. R.S.E. Board, AIR 1984 Raj 131. 83 Laxmi Khandsari v. State of U.P., AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]: (1981) 2 SCC 600; supra, Chapter VI, note 127; Jain, Cases, 286. 84 Tulsipur Sugar Co. v. Notified Area Committee, AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]: (1980) 2 SCC 295; note 140, Chapter VI; Jain Cases, 284. 85 Sundarjas Kanyalal Bhathija v. Collector, Thane, AIR 1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]: (1989) 3 SCC 396; Jain Cases, 629. 86 Subash Oil Industries v. State of U.P., AIR 1975 All 19; Akhil Bhartiya Grahak Panchayat v. A.P.S.E. Board, AIR 1983 AP 283 [LNIND 1982 AP 303] [LNIND 1982 AP 303] [LNIND 1982 AP 303]. 87 R.K Porwal v. State of Maharashtra. AIR 1981 SC 1127 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86]. See also State of Punjab v. Tehal Singh, (2002) 2 SCC 7 [LNIND 2002 SC 1476] [LNIND 2002 SC 1476] [LNIND 2002 SC 1476], 14-15 (paras 9 and 10): AIR 2002 SC 559 [LNIND 2002 SC 14] [LNIND 2002 SC 14] [LNIND 2002 SC 14]; State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210]. 88 D.K. Trivedi v. Gujarat, AIR 1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50]: 1986 Supp SCC 20. 89 U.O.I. v. Cynamide India Ltd. AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: (1987) 2 SCC 720; Jain, Cases, 310. 90 Bhashir Kumar v. U.O.I., AIR 1985 All 183 [LNIND 1985 ALL 10] [LNIND 1985 ALL 10] [LNIND 1985 ALL 10]. 91 S. Narayan Iyer v. U.O.I., AIR 1976 SC 1986 [LNIND 1976 SC 199] [LNIND 1976 SC 199] [LNIND 1976 SC 199]: (1976) 3 SCC 428. 92 S.M. Mallewar v. State of Maharashtra, AIR 1993 Bom 327. 93 Sakari Sasta Anaj Vikreta Sangh v. Sate of Madhya Pradesh, AIR 1981 SC 2030, 2034: (1981) 4 SCC 471. 94 See supra, Chapter III and VI . 95 C.C.S.U. v. Minister for Civil Service, (1985) AC 374: AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405, Chapter VI and Chapter VIII. 96 For such situation. See, Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; C.C.S.U. v. Minister for Civil Service, (1985) AC 374. 97 Jain, Cases, 491. 98 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 1 I.J. Rao v. Bibhuti Bhisham Bagh, AIR 1988 SC 1885: (1989) 3 SCC 202. 2 K.I. Shepard v. U.O.I., AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]: (1987) 4 SCC 431: 1988 (1) LLJ 162 [LNIND 1987 SC 658] [LNIND 1987 SC 658] [LNIND 1987 SC 658]. 3 Ashwani Kumar v. State of Bihar (DB), (1996) 7 SCC 577 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137], 611 (para 80): AIR 1996 SC 2833 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137]and Ashwani Kumar v. State of Bihar (F.B), (1997) 2 SCC 1 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]: AIR 1997 SC 1628 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]. 4 (1989) 1 SCC 764 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]: AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND 1988 SC 557] [LNIND 1988 SC 557]. 5 Liberty Oil Mills Ltd. v. U.O.I., AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465; supra, note 62 & 138. 6 AIR 1990 Bom 355 [LNIND 1989 BOM 466] [LNIND 1989 BOM 466] [LNIND 1989 BOM 466]. 7 People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 [LNIND 2003 SC 1103] [LNIND 2003 SC 1103] [LNIND 2003 SC 1103], 604-05 (para 43): AIR 2004 SC 456 [LNIND 2003 SC 1103] [LNIND 2003 SC 1103] [LNIND 2003 SC 1103], relying on Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: AIR 1981 SC 818

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[LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]: AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]and U.O.I. v. Tulsiram Patel, (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: 1985 SCC (L&S) 672: AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]. 8 Bari Doab Bank Ltd. v. Union of India, (1997) 6 SCC 417, 419 (para 6): (1997) 89 Com Cases 462.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER X PRINCIPLES OF NATURAL JUSTICE OR FAIRNESS - 1 of 2

CHAPTER X PRINCIPLES OF NATURAL JUSTICE OR FAIRNESS The doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. In Ridge v. Baldwin, 1 it was held that the doctrine of natural justice was incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. In India, a reasonable man cannot but be a common man similarly placed.2 Over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and cannot be made to define the doctrine in a specific manner or method. Strait-jacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance with the doctrine, the law Courts in that event ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most-accepted methodology of a Government action.3 1. AUDI ALTERAM PARTEM In the last Chapter, the question when can a person claim natural justice or fairness has been discussed. It has been seen that the Courts are increasingly insisting that the Administration acts according to the principles of natural justice/fairness. Natural justice has two main limbs: (i) the right to a fair hearing, also known as the audi alteram partem rule which means that no one is to be condemned unheard; and (ii) the rule against bias, or, nemo judex in causa sua, i.e. no one may be a judge in this own cause. These two concepts may be put in two words: fairness and impartiality. These two are the twin pillars supporting natural justice. In this Chapter, the question to discuss is: What does fair hearing, or, audi alteram partem envisage? What procedural safeguards are necessary so that hearing is not just a sham but meaningful and fair? The question thus is: What are the norms or components of a fair hearing.4 The concept of audi alteram partem, or the rule of fair hearing is of crucial importance. It can be used to construe a whole code of administrative procedural norms or "administrative due process". The concept comprises of many norms. To what extent these various norms apply in a given situation is somewhat fluid. The norms of fair hearing are elastic and uncrystallised and are not rigid or susceptible of precise definition. Not only do the norms of fair hearing vary from body to body but also vary from situation to situation before the same body. While the civil Courts are bound by the rules of procedure contained in the Civil Procedure Code, and the criminal Courts are bound by the procedural rules laid down in the Criminal Procedure Code, there is no such code of procedural rules to be followed by administrative bodies while acting in an adjudicatory capacity. It is therefore for the Courts to articulate from case to case what is involved in the concept of natural justice in a particular situation. The Courts do not like the idea of confining the rules of natural justice within any rigid formula. The Courts insist that what is required is fairplay in action. While over time the Courts have been expanding the parameters of the applicability of natural justice or fairness in

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administrative process, the Courts have, at the same time, exhibited an equivocal attitude on the question of norms of fair hearing to be observed by adjudicatory bodies. The Courts insist that natural justice is not a fixed but a flexible concept,5 that there is no invariable standard of fair hearing and that each case has to be decided on its own merits. As the Supreme Court has emphasized, the standards of natural justice vary with situations "contracting into a brief, even post-decisional opportunity, or expanding into trial-type trappings."6 The reason behind the flexible judicial approach to natural justice is the feeling that since hearing may have to be given in so many varied situations, and by so many different types of decision-making bodies--varying from Court like tribunals right down to bodies which are administrative in nature7--that one fixed set of rules of hearing may not suit all situations and all bodies and insistence on rigid rules of hearing may ultimately hamper action by the Administration. What a Minister ought to do while considering objections against a planning scheme may be very different from what a tribunal may be required to do while investigating charges of corruption against a government employee as a prelude to his dismissal. The Courts therefore discourage the idea of subjecting natural justice within a strait-jacket. Accordingly, the Supreme Court has emphasized time and again that principles of natural justice are not 'embodied' rules8 and, therefore, it is not possible, and practicable to precisely define the parameters of natural justice; that the aim of these rules is to secure justice or to prevent miscarriage of justice; that there is no invariable standard of reasonableness in the matter of hearing and whether in a particular case natural justice has been contravened or not is ultimately for the Courts to decide. Each case is to be decided on its own merits.9 For example, in Mineral Development Ltd. v. State of Bihar, 10 the Court observed that the concept of fair hearing is "an elastic one and is not susceptible of easy and precise definition." Again, in Fedco,11 the Court observed that there can be no invariable standard for reasonableness in such matters except that the Court's conscience must be satisfied that the person against whom an action is proposed has had a fair chance of convincing the authority who proposes to take action against him and that the ground on which the action is proposed are either non-existent, or even if they exist, they do not justify the proposed action. The Court decision on this question will necessarily depend upon the peculiar facts and circumstances of each case, including the nature of the decision making body, the nature of the action proposed, the grounds on which the action is proposed, the materials on which the allegations are based, the attitude of the party against whom the action is proposed in showing cause against such proposed action, the nature of the plea raised by him in reply, the requests for further opportunity that may be made by him, his admissions by conduct or otherwise of some or all the allegations, the effect of the ruling made and all other matters which help the mind in coming to a fair conclusion on the question.. In the celebrated Maneka Gandhi case,12 it has been said:13 "The rules of natural justice are not embodied rules. What particular rules of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of the case.

Talking of natural justice in the context of preventive detention, the Supreme Court has emphasized in A.K. Roy v. U.O.I. 14 that the rules of natural justice "are not rigid norms of unchanging context." The ambit of those rules must vary according to the context and "they have to be tailored to suit the nature of the proceedings in relation to which the particular right is claimed as a component of natural justice." The Supreme Court has emphasized in K.L. Tripathi v. State Bank of U.O.I., 15 that whether any particular principle of natural justice would be applicable to a particular situation, or the question whether there has been any infraction of the application of that principle, has to be judged, in the facts and circumstances of each case. "The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons......... the rules of natural justice are flexible and cannot be put on any rigid formula."16 While considering the question of processual rights of a detenu under preventive detention before the advisory board, the Supreme Court has again emphasized that the rules of natural justice "are not rigid norms of unchanging content": the ambit of those rules must vary according to the context, and "they have to be tailored to suit the nature of the proceedings in relation to which the particular right is claimed as a component of natural justice."17 The

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hearing procedures thus vary from tribunal to tribunal, authority to authority and situation to situation. A consequence of this flexibility is that the rules of natural justice are vague and indefinite and there prevails too much uncertainty in the area under discussion. Fair hearing does not stipulate that proceedings be as formal as in a Court. Natural justice is elementary justice, as distinct from complex or technical justice. Natural justice is not a replica of Court procedure; it only sets certain standards of procedural fairness. It is regarded unwise to fully judicialize hearing procedures followed by adjudicatory bodies. Many a time, adjudicatory functions are cast on administrators. Their working will be very adversely affected if they are required to follow an elaborate and formal procedure and much of the rationale and justification of having adjudicatory bodies outside the normal Court system will evaporate in thin air if they are saddled with too judicial a procedure. Also, costs of administration will increase enormously. Therefore, the attempt is to keep the hearing procedure less formal consistent, however, with the minimal fundamental concepts of procedural due process so as to promote justice and fairplay. Adjudicatory bodies enjoy a good deal of freedom in ordering their hearing procedures subject, however, to the over-all condition that the party affected gets a reasonable opportunity of presenting his case. In Liberty Oil Mills v. U.O.I., 18 referring to clauses 8 and 10 of the Imports (Control) Order, 1955, the Supreme Court said that it is not necessary for the concerned authority (Central Government or the Chief Controller of Imports and Exports) to follow "any rigid, hide-bound, pre-determined procedure." The procedure may be different in each case. The authority may designate its own procedure to suit the requirements of each individual case depending on its facts, circumstances and exigencies. What is required is that "the procedure must be fair and not so designed as to defeat well known principles of justice and thus deny justice." Hearing procedures thus vary from tribunal to tribunal and body to body. In some cases, more formal procedures may be insisted upon than in other cases, as for example, in case of dismissal from service (in a situation where Art. 311(2)of the Constitution applies).19 Similarly, in case of a domestic enquiry by an employer against his employees in labour matters, the Supreme Court has imposed strict standards of hearing to eliminate the risk of victimisation, e.g., the right to cross-examination of witnesses has been regarded as an essential ingredient of such inquiries, but the same is not regarded as essential in other situations.20 The procedure of tribunals (which are Court-like bodies)21 is normally more formal (because of their tendency to follow a simplified version of Court procedure) than other departmental adjudicatory bodies. Many a time, the statute under which an adjudicatory body functions may itself lay down a procedure and this would naturally have to be followed. As already stated, if the procedure is adequate and self-sufficient, it may mean exclusion of natural justice. The rules of natural justice can operate only in areas not covered by any law validly made.22 But if the statutory procedure has gaps, it may have to be supplemented by bringing in relevant norms of natural justice. The Courts can not supplant the law, but can only supplement procedure laid down in legislation where they find it necessary to make it fair. If a statutory provision can be read consistently with the principles of natural justice, the Courts would do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice, then the Courts cannot ignore the legislative mandate and still read in the concerned provision the principle of natural justice in question.23 Usually, the relevant statute is either completely silent as to procedure, or may merely ordain that the parties shall be heard before an action is taken, or may lay down some skeletal procedural norms. In such cases, Courts imply norms of natural justice or fairness.24 As the Supreme Court has emphasized in Ratna,25 "The principles of natural justice must be read into the unoccupied interstices of the statute unless there is a clear mandate to the contrary." The justification of this judicial approach is that no statute can possibly lay down each and every procedural detail involved in a hearing. The concept of fair hearing, or audi alteram partem, involves many components, such as, notice, opportunity to be given to a party to present his case, legal representation, etc. These various components do not have a fixed, but a flexible or variable, tenor and their scope and applicability vary from case to case. The reason being that the whole concept of natural justice, as stated above, is flexible and variable. It will be seen from the discussion which follows that there is too much confusion in the area because of the Courts' case to case approach. There are too many inconsistencies in the judicial views on the same point and it is extremely difficult to categorically state any general proposition of law in the area under discussion. The advantage of a flexible concept of natural justice is that since there is a wide variety of adjudicatory bodies functioning in the country, the Court can modulate the hearing procedure to the practical needs of the

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specific body in question. Thus, procedure does not become a strait-jacket and administrative process is not unduly hampered. On the other hand, the disadvantage is that in the absence of any minimum procedural requirements for each body to follow while performing adjudicatory functions, no one can be sure what norms of natural justice are applicable before a specific body. Only the Courts can spell out the norms for each body as and when the occasion arises. Thus, things become very imprecise and indefinite and no proposition of law can be laid down with any certainty as the Court prefer to deal with the problems on a case to case basis without making generalisations. The Courts take shelter behind the thesis that natural justice is not a fixed but flexible concept. The consequence of this approach is that law becomes completely unpredictable. There is also the danger that the Courts may take an indulgent view of the procedure followed by adjudicatory bodies and not insist on some higher norms. The danger in this approach is that in the absence of any concept of the minimal procedural norms, the substance or the essence of natural justice may disappear and only the form or shadow may remain. Natural justice may then become an empty formality without affording much of a protection to the concerned person. The newly emerging concept of 'fairplay' makes things all the more vague as it is not clear whether fairplay is equal to, or more, or less, than natural justice. Many Court cases leave behind the uncomfortable feeling that the Courts have taken too lenient or equivocal a view of the procedure adopted by adjudicatory bodies, and in the process, natural justice has been denuded of much of its substance. Of late, the Courts have been expanding the applicability of natural justice to new situations. But along with this expansion, the concept of natural justice is also becoming more and more amorphous. This danger can be averted if the Courts remember that natural justice is not merely an empty ritual or a formal incantation but an effective procedural safeguard against undue or improper use of power and if they insist not on the minimum, but rather the maximum, of natural justice consistent with the needs of the situation.26 It needs to be emphasized that natural justice is only a procedural concept and does not impose any substantive restriction on the decision making body. Natural justice furnishes no basis to probe into the merits of a decision made by an authority; it does not dictate the quality of a decision. It will be instructive to see what the present-day position is with regard to each of the components of fair hearing. The two essential elements of natural justice i.e. (a) no man shall be judge in his own cause; and (b) no man shall be condemned, either civilly or criminally, without being afforded an opportunity of being heard in answer to the charge made against him in course of time by various judicial pronouncements, have been expanded, e.g., a party must have due notice when the tribunal will proceed; the tribunal should not act on irrelevant evidence or shut out relevant evidence; if the tribunal consists of several members they all must sit together at all times; the tribunal should act independently and should not be biased against any party; its action should be based on good faith and order and should act in a just, fair and reasonable manner. These in fact are the extensions or refinements of the main principles of natural justice stated above.27 Non-arbitrariness is an essential facet of Art. 14pervading the entire realm of State action governed by Art. 14.It has came to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Art. 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well-settled that any action taken by the employer must be fair, just and reasonable which are components of fair treatment.28

1 1964 AC 40: (1963) 2 All ER 66 (HL). 2 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 187 (para 1): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], relying on A.K. Kraipak v. U.O.I., (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 335 (para 1): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 3 Kumaon Mandal Vikas Nigam Ltd. v. Girja shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 188: AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], relying on Keshav Mills Co. Ltd. v. U.O.I., (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570], 387 (para 8): AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]. See also State of Punjab v.

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V.K.Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 354 (para 37): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 4 The three terms natural justice, fairness and fair hearing are used synonymously in the Indian case law. No worthwhile distinction has been drawn between natural justice or fairness in India. The reason may be that the concept of natural justice is itself flexible and can contract or expand according to the facts and circumstances of the specific situation. The term popular in India is "natural justice". It is only rarely that the term "fairness" is used in contradistinction to "natural justice" to denote some diluted version of natural justice. See, for example, Chingleput Bottlers, v. Majestic Bottling Co., AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79]: (1984) 3 SCC 258; also, JAIN, Cases, 666. 5 The Supreme Court has recently observed in Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10: 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: "Since the rules of natural justice were not embodied rules it is not possible and practicable to precisely define the parameters of natural justice.". 6 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; JAIN, Cases, 529. 7 For a description of some select adjudicatory bodies, see, infra, Chapter XIII. 8 "... the so-called rules of natural justice are not engraved on tablets of stone," per Lord BRIDGE of HARWICH in Lloyds & Others v. Mcmahon, (1987) 1 All ER 1118. 9 U.O.I. v. J.N. Sinha, AIR 1971 SC 40 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]: (1970) 2 SCC 458: 1970 (2) LLJ 284 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]; C.B. Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 [LNIND 1969 SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368]: (1970) 1 SCC 43. 10 AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]: 1960 (2) SCR 609; JAIN, Cases, 874. 11 Fedco v. Bilgrami, AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]: 1960 SCJ 235. 12 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; JAIN, Cases, 522. 13 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 14 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]at 749: 1982 Crlj 340: (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]; JAIN, Cases, 251, 718. 15 AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: (1984) 1 SCC 43: 1984 (1) LLJ 2 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]; JAIN, Cases, 690. 16 K. L. Tripathi v. State Bank of India, AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], 285: (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. 17 A.K. Roy v. U.O.I., AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: 1982 Crlj 340: (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]. 18 AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465: (1970) Ch D 345: (1985) AC 374. 19 JAIN, Indian Constitutional Law 771 et seq (1987). 20 See under heading: 'Cross-examination', infra, this chapter. 21 infra, Chapter XII, on 'Tribunals'. 22 supra, Chapter IX; also see, Subhash Oil Industries v. State of U.P., AIR 1975 All 19. 23 U.O.I. v. J.N. Sinha, AIR 1971 SC 41: (1970) 2 SCC 458; C.B. Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 [LNIND 1969 SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368]: (1970) 1 SCC 43; See also State Govt. Houseless Harijan Employees' Association v. State of Karnataka, (2001) 1 SCC 610 [LNIND 2000 SC 1829] [LNIND 2000 SC 1829] [LNIND 2000 SC 1829], 620-21 (paras 27-30): AIR 2001 SC 437 [LNIND 2000 SC 1829] [LNIND 2000 SC 1829] [LNIND 2000 SC 1829]; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]: AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]and C.B. Gautam v. U.O.I., (1993) 1 SCC 78 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833]. 24 supra, Chapter IX. Also see, Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]: (1985) 3 SCC 545; Dewan Singh, v. State of Haryana, AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]: (1976) 3 SCC 638: 1976 (2) LLJ 321 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]; Lloyd v. Mcmahon, (1987) 1 AC 625.

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25 Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1987) 164 ITR 1: 1996 (3) Comp LJ 352; also, infra. 26 See, C.P. SEEPERSAD, Fairness and Audi Alteram Partem, 1975 Public Law 242; D.H.C. CLARKE, Natural Justice: Substance and Shadow, 1975 Public Law 27. 27 Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715], 77 (para 17): AIR 2000 SC 2198 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715]. 28 Basudeo Tiwary v. Sido Kanhu University, (1998) 8 SCC 194 [LNIND 1998 SC 893] [LNIND 1998 SC 893] [LNIND 1998 SC 893], 199 (para 9): AIR 1998 SC 3261 [LNIND 1998 SC 893] [LNIND 1998 SC 893] [LNIND 1998 SC 893], relying on Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. See also Lakshmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 (para 16): AIR 2002 SC 2194 [LNIND 2002 SC 363] [LNIND 2002 SC 363] [LNIND 2002 SC 363].

2. NOTICE The term "notice" originated from the Latin word " notifia" which means "a being known" or a knowing and is wide enough in legal circle to include a plaint filed in a suit (para 15). Notice is making something known, of what a man was or might be ignorant of before. And if produces diverse effects, for, by it, the party who gives the same shall have the same benefit, which otherwise he should not have had; the party to whom the notice is given is made subject to some action or charge, that otherwise he had not been liable to; and his estate in danger of prejudice (Para 17).29 "Notice is a direct and definite statement of a thing as distinguished from supplying materials from which the existence of such thing may be inferred."30 The starting point of adjudicatory process is notice to the party concerned detailing the case against him and informing him of the action proposed to be taken against him. Whatever other procedural rights a person entitled to a hearing may or may not have, notice is the first and extremely important step in the hearing procedure. A basic principle of fair hearing is that before adjudication-proceedings start, the authority concerned should give to the affected party a notice of the case against him so that he may adequately defend himself. Notice is regarded as the minimum obligatory condition. The right of being heard becomes illusory if the party has no knowledge of the allegations which he has to counter at the hearing. Condemning a person without telling him what he is accused of amounts to flagrant violation of natural justice. It is the sine qua non of a fair hearing. Any proceeding taken against a person without notice to him violates natural justice.31 The importance of notice in adjudicatory proceedings has been underlined by the Supreme Court in Olga Tellis v. Bombay Municipal Corporation .32 The Bombay pavement dwellers challenged the procedure prescribed by S. 314of the Municipal Corporation Act, 1888, as unreasonable vis-a-vis Art. 21of the Constitution in so far as the provision not only did not require giving of notice to the dwellers before demolition of their huts on the pavements but it expressly provided that the corporation may cause the encroachment to be removed "without notice". The Supreme Court upholding the validity of the provision ruled that it was merely an enabling provision. It did not command that the commissioner shall cause an encroachment to be removed without notice. The discretion must be exercised in a reasonable manner in accordance with the constitutional mandate contained in Art. 21that the procedure for performing a public act must be fair and reasonable. The power given by S. 314was to be exercised sparingly in cases of urgency which brooked no delay. In normal circumstances, no departure from the audi alteram partem rule was envisaged under S.314 which provided only an exception and not the rule. The normal rule is that before making a decision, the concerned authority should give a hearing to the concerned parties. Natural justice is implied in the law even if the concerned persons have no effective answer to give. Accordingly, the Court ruled that S. 314was valid as it did not exclude notice to the concerned persons in normal circumstances. A departure from the fundamental rules of natural justice could be presumed to be intended by the legislature only in circumstances which warranted the same and such circumstances must be shown to exist by those who asserted their existence when required to do so. Notice would be necessary even though in a generality of cases the pavement encroachers may not have an effective answer for their action because justice should

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not only be done, it must manifestly be seen to have been done.33 When a statute requires a notice to be given, the requirement is invariably regarded as mandatory, and an action taken without such a notice would be invalid. For example, under S. 11-Aof the Central Excise and Salt Act, 1944, it is mandatory to give a notice before raising a demand of excise duty. The cause shown by the assessee against the demand must be considered by the concerned authority before assessing the amount. This scheme of the Act accords with the principles of natural justice. In Gokak Patel Volkart Ltd. v. Collector, Central Excise, 34 the Court quashed a demand for excise duty as the same had been assessed without giving a notice to the assessee.35 Under the Bombay Town Planning Rules, apart from a general notice published in the newspapers, the town planning officer was also to give a special notice of three clear days to each person interested in any land comprised in town planning scheme. The Supreme Court ruled in Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation 36 that it was mandatory to give special notice to each interested person. This was in consonance with natural justice. The legislature has made a distinction between general notice and a special notice. Non-observance of this condition will vitiate the validity of the final scheme. The main reason for the Court to hold special notice mandatory was that the town planning scheme would adversely affect property rights. If a show cause notice has been issued but the person concerned does not respond thereto, the adjudicatory proceedings may then proceed further ex prate without causing any violation of natural jusitee.37 In Jethmal v. U.O.I., 38 proceedings were initiated against the appellant under S. 167(8)of the Sea Customs Act and S. Section 19 of the Foreign Exchange Regulation Act for smuggling gold into India. A notice was given to him to show cause as to why the gold should not be confiscated and further penal action taken against him. He was also asked to indicate in his written statement whether he wished to be heard in person. The appellant sent no reply to the notice. After some time, the customs authorities adjudicated on the matter on the basis of materials before them, confiscated the gold, and levied a penalty. The Supreme Court ruled that there was no violation of natural justice. If no reply was sent to the show cause notice, the authorities could proceed ex parte. When an adjudicatory body gives notice to the concerned party informing him of the time, date and place of hearing but he fails to attend, the concerned body may proceed ex parte.39 However, when the concerned person failed to appear at the first hearing, but was present at the second hearing, it would amount to a violation of natural justice if the authority then refuses to hear him.40 Is the issue of notice by the authority still necessary when the affected person suo motu makes representation without having received any notice ? Ordinarily, the rule is that denial of notice cannot be justified on the ground that the knowledge of the matter in dispute was imputable to the concerned person, or that he suo motu flied a representation and so he was not prejudiced by the absence of notice to him.41 In case of a statutory notice, the issue of notice is mandatory as it goes to the jurisdiction of the authority. In CATA Sales Co-operative Society v. A.P. Government, 42 the statute in question expressly provided for the issue of notice before the government could act against a co-operative society. The statutory provision vested the power of revision in the government over the order made by the registrar of cooperative societies. But the government could pass no order prejudicial to a person without giving him an opportunity of making representation. The government gave no notice to the appellant before making an order against him. The Court ruled that the statutory provision regarding notice was mandatory in character. When government gave no notice to the appellant this provision was violated. Even though the society had filed some representation in respect of the matter suo motu, it did not absolve the government of its obligation to issue the notice. The Court stated that the requirement of notice could not be by-passed by the government as it was mandatory in character. The Court held the government order to be invalid. as it was inconsistent with the statutory provision in question and also was in violation with the principles of natural justice. The statutory provision in question laid down a minimum requirement of notice to the appellant informing him about the application against him and affording him an opportunity of making representation against whatever was alleged against him in the application. Minimal requirement of natural justice was ingrained in the provision and this could not be dispensed with. The authority concerned could not rely upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom the action is sought for. Again, under the U.P. Sales Tax Act, it is necessary for the assessing authority to issue a notice to the dealer if it has reasons to believe that any turnover has escaped assessment and it wishes to reassess the dealer. In Laxmi Narain Anand Parkash v. Commissioner of Sales Tax, 43 the authority issued the notice, but it was served on a wrong person. The assessee, however, appeared before the authority on the date of hearing. It was held that

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the requirement of notice must be strictly complied with. It was the notice which gave jurisdiction to the authority to reassess and if this notice was not properly served on the assessee the authority could not proceed to reassess him. The Court did not accept the contention that the assessee was estopped from questioning the non-issue of notice in view of his appearance before the authority. The issue of notice was essential for the authority to assume jurisdiction and "it cannot be circumvented by invoking equitable principles of estoppel and participation of the assessee". The petitioner's jamabandi was cancelled without giving her a notice mentioning the specific grounds against her. A notice was however given to her mentioning only the date of hearing and in response to this notice she did file some written representation. Quashing the order the High Court ruled that this was not a case of inadequate notice but of no notice as she had no notice of the case against her which she was required to meet. The consequences of the order were very serious as her property rights were being adversely affected. The High Court rejected the contention that as the petitioner had filed her written objections, there was no need to give her notice.44 In Union of India v. Jayakumar Parida, 45 the Supreme Court refrained from interfering with the order of the CAT setting aside the termination of services of a postal employee within three years of his service on the basis of a report submitted against him that he had produced a false income certificate to procure appointment without affording him a prior opportunity to notice as the said order was not covered under Rules 6 of the Posts and Telegraphs Extra-Departmental Agents (Conduct and Salaries) Rules, 1964 under which services could be terminated within three years of his service without any notice. However, at times, the Supreme Court has not adopted the strict view as mentioned above when notice has to be issued as part of natural justice. In Fazal Bhai v. Custodian-General, 46 the statutory provision only required that the person concerned be given a reasonable opportunity of being heard before any decision prejudicial to him is taken. The custodian orally informed the lawyer of the concerned party that he proposed to review the order made by the assistant custodian. The custodian reviewed the order and modified it and the lawyer of the concerned party was fully heard by the custodian before making his order. This is thus a case where an oral notice, rather than a formal notice, of the proposed adjucatory proceedings was given. There was no specific rule requiring the giving of a formal notice except that such a duty could by spelled out from natural justice. Later, the party adversely affected by the custodian's order challenged the order on the ground of lack of notice. Rejecting the contention, the Supreme Court ruled that if reasonable opportunity of being heard to the individual cannot be given without service of the notice, the omission to serve the notice would be fatal. But where proper hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given. There may be cases where the party concerned is already before the adjudicating authority, so that all that may be necessary for the authority is to inform such party of its intention to adjudicate upon the case and to give the party a reasonable opportunity of being heard. "There would be no necessity in such a case to serve a formal notice on the party who is already before the custodian and the omission to serve the notice can be of no consequence". However, it may be pointed out that even in such a case, the non-issue of a formal notice may vitiate the proceedings, if the party concerned has been prejudiced thereby, e.g. if he has been prevented from making an effective representation for want of formal notice, though he might have made some representation. It is suggested that the ruling in the instant case should be confined to the facts of the case.47 The Courts do not ordinarily interfere with a show cause notice issued under a statutory provision before final decision is taken. Thus, in State of U.P. v. Brahm Datt Sharma, after his retirement from government service,48 a notice under a statutory provision was issued to the respondent calling upon him to show cause why his pension and gratuity be not forfeited as he had been found guilty of serious misconduct during his service period as a result of a departmental enquiry. The Supreme Court ruled that unless the notice was without the authority of law, it would not interfere with the same because the notice afforded an opportunity of being heard to the concerned government servant. It was only after the cause having been shown by him, and in the light of the facts of the case and submissions of the government servant, that a decision would be taken by the government. Any interference by the Court before such a final decision was taken would be premature. In I.T.C. Ltd. v. Union of India, 49 the Calcutta High Court while reiterating the proposition that "ordinarily a writ petition is not maintainable against a show cause notice inasmuch as, when a show cause notice is issued, the party gets an opportunity to place his case before the authority concerned and there are elaborate procedures by way of an appeal and/or revision against the order passed in such proceedings," also said:50

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"But when a case is made out that the show cause notice was issued without jurisdiction and without the authority of law or that the show cause notice on the basis of the admitted facts is not maintainable in law, the writ petition would be maintainable and the writ Court can undertake a limited scrutiny on the points raised in the petition to find out whether there was any jurisdictional error and/or any legal infirmity in the proceeding."

The Supreme Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted. In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection. This, admittedly, has not been done in the case at hand.51 In East India,52 a show cause notice was quashed by the Supreme Court on the ground that it was issued by the collector of customs without jurisdiction. Section 66of the Maharashtra Housing and Area Development Act, 1976 (28 of 1977) contemplates two independent proceedings followed by service of notices--(a) one in respect of proceeding for eviction of the tenant; and (b) the other for regularisation of tenancy. Both the proceeding can be initiated on service of notice on the tenant. In absence of notice, the proceedings for eviction of the tenant are invalid and as a result there would be no vacancy in the premises which may not warrant initiating any proceedings for regularisation of tenancy in favour of the third party. Further, under the provisions of the Act, no such presumption is created about service of notice and the service of notice in the regularisation proceedings cannot be taken as service on the tenant in the eviction proceedings.53 A contractor concern was blacklisted for five years in view of its performance record while executing a contract in a Govt. Department which was not then challenged by it. In another award of Govt. contract by another Department after four years, this concern, though it was the lowest bidder, was not given the contract. Instead, it was given to the next lowest bidder. The High Court set aside the award holding that decision of the Govt. Department not to award the contract to the said concern on the ground of its being blacklisted was taken without issuing it a show-cause notice. Hence, the decision was against the principles of natural justice and was bad in law. The Supreme Court held that there was no question of issuing any show-cause notice to the concern as the Govt. Department, before awarding the contract, simply took note of an already existing order of blacklisting.54 In a case, a mass malpractice in the selection of candidates in the Railways was detected after inquiry, the Supreme Court upheld the order of the Central Administrative Tribunal nullifying the selection without issuing notice to the persons selected in or given appointment pursuant to, such selection.55 Amritsar Improvement Trust framed a scheme for providing passage to Guru Nanak Stadium from the main road and notices were issued of the factum of framing of the scheme, objections were invited and the scheme was published in the local weekly newspaper within the specified period for three consecutive weeks. No objections in that behalf came to be made. Thereafter the Govt. approved the scheme and thereafter proceedings to acquire the land under the Land Acquisition and Requisition-- Punjab Town Improvement Act 4 of 1922were taken up. A person, in spite of so much publication, purchased a property falling in the scheme, about two months prior to the approval of the scheme by the Govt. but her name was not mutated in the municipal records before approval of the scheme by the Govt. she contended that she must have been served with notice before initiating the acquisition

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proceedings. The Apex Court held that in the circumstances of the case, failure to serve notice on her did not vitiate the acquisition proceedings.56 Similarly, in a case of relaxation of service rules prescribing the requisite length of service for being eligible for promotion in the case of a reserved category candidate resulting in his promotion and gaining of seniority over his erstwhile seniors in the lower grade, it was held that giving of notice to such affected seniors was not a condition precedent for the exercise of the said power as it was not a situation of inter se claim but that of relaxation of eligibility of a single individual and was in exercise of the power under Rule 47of the A.P. State and Subordinate Service Rules, 1963 which does not contemplate giving of any such notice.57 The Municipal Corporation of Delhi entered into as contract with an association for allowing it to put up hoardings. After expiry of the its terms of contract, the association's right to advertise ceased. Hence, it was held that there was no need of a show-cause notice to be given in respect of removal of the hoardings.58 After the death an assessee, the Income Tax Officer sent notice to only one of his legal representative to file return, and not to others though he knew their names. He made assessment orders mentioning the names of all his legal representatives. The Supreme Court held that in the circumstances of the case, non-notice to the remaining legal heirs was merely a curable defect or irregularly and did not render the assessment order null and void.59

29 Commissioner of Sales Tax v. Subhash & Co., (2003) 3 SCC 454 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209], 460, 461 (paras 15 and 17): AIR 2002 SC 1628. 30 B. Burgh v. Legge, (1839) 5 M&W 418: 8 LJ Ex 258: 151 ER 177, per PARKE. 31 See, Abdul Ghaffar v. State of U.P., AIR 1984 All 283 [LNIND 1984 ALL 122] [LNIND 1984 ALL 122] [LNIND 1984 ALL 122]; State of A.P. v. Nagam Chandrasekhara, AIR 1988 SC 1309: (1988) 3 SCC 534. 32 AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]: (1985) 3 SCC 545; JAIN, Cases, Chapter IX, 642; Also see, K. Chandru v. State of Tamil Nadu, AIR 1986 SC 204 [LNIND 1985 SC 217] [LNIND 1985 SC 217] [LNIND 1985 SC 217]: (1985) 3 SCC 536. 33 On this maxim, also see, infra, Chapter XI. 34 V. Srinivas v. Machines and Machine tools P. Ltd. AIR 1987 SC 1161 [LNIND 1987 SC 187] [LNIND 1987 SC 187] [LNIND 1987 SC 187]: (1987) 2 SCC 93. 35 Also see, M. Chockalingana v. C.I.T., AIR 1963 SC 1456 [LNIND 1962 SC 334] [LNIND 1962 SC 334] [LNIND 1962 SC 334]: (1963) 48 ITR 34; Inayatallah v. Custodian, Evacuee Property, AIR 1958 SC 160 [LNIND 1957 SC 147] [LNIND 1957 SC 147] [LNIND 1957 SC 147]: 1958 SCR 816; I.J. Rao v. Bibhuti Bhisham Singh, AIR 1988 SC 1885: (1989) 3 SCC 202; JAIN, Cases, 645; Collector of Central Excise v. E.I.D. Parry (India) Ltd., (1998) 9 SCC 711, 712 (para 12): 1996 Supp (3) Scale 56; A-one Granites v. State of U.P., (2001) 3 SCC 537 [LNIND 2001 SC 434] [LNIND 2001 SC 434] [LNIND 2001 SC 434], 546-47 (paras 18 and 19): AIR 2001 SC 1203 [LNIND 2001 SC 434] [LNIND 2001 SC 434] [LNIND 2001 SC 434]. Aeon's Construction Products Ltd. v. Commissioner of Central Excise, (2005) 10 SCC 637: 2005 (184) ELT 120. 36 AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506]: 1992 Supp (1) SCR 5. 37 Ram Chander v. U.O.I., AIR 1986 SC 1173 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]: (1986) 3 SCC 103; JAIN, Cases, 758. Also See, Accounting & Secretarial Services Pvt. Ltd. v. U.O.I., AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66], 114, 146 and, 313. Chandrakanth Narayan Navak v. Dy. Commr. for Transport, AIR 1987 Kant 52 [LNIND 1986 KANT 18] [LNIND 1986 KANT 18] [LNIND 1986 KANT 18]. 38 AIR 1970 SC 1313: (1970) 2 SCC 301. 39 Also see, Jawant Singh Mathura Singh v. Ahmedabad Municipal Corp. AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506]at 2136: 1992 Supp (1) SCC 5. 40 Sangram Singh v. Election Tribunal, AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2]: 1955 SCJ 431. 41 See, Purtabpur Co. v. Cane Comm, Bihar, AIR 1970 SC 1896 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350]: (1969) 1 SCC 308. 42 AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275]: (1977) 4 SCC 337; JAIN, Cases, 656. 43 (1980) 46 STC 71 (All). Also, Jaipur Udyog Ltd. v. Commercial Tax Officer, (1979) 44 STC 459 (Raj).

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44 Ambika Devi v. State, AIR 1988 Pat 258; JAIN, Cases, 649. 45 (1996) 1 SCC 441 [LNIND 1995 SC 1190] [LNIND 1995 SC 1190] [LNIND 1995 SC 1190], 446 (paras 5, 6). 46 AIR 1961 SC 1397 [LNIND 1961 SC 122] [LNIND 1961 SC 122] [LNIND 1961 SC 122]: 1962 (1) SCR 456. 47 Also see on this point, Board of Mining Examination v. Ramjee, AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]: (1977) 2 SCC 472. 48 AIR 1987 SC 943 [LNIND 1987 SC 251] [LNIND 1987 SC 251] [LNIND 1987 SC 251]: (1987) 2 SCC 179. 49 AIR 1989 Cal 294 [LNIND 1987 CAL 318] [LNIND 1987 CAL 318] [LNIND 1987 CAL 318]at 302. 50 I.T.C. Ltd. v. U.O.I., AIR 1989 Cal 294 [LNIND 1987 CAL 318] [LNIND 1987 CAL 318] [LNIND 1987 CAL 318], 303. 51 Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 [LNIND 2004 SC 1522] [LNIND 2004 SC 1522] [LNIND 2004 SC 1522], 443 (paras 5 and 6): AIR 2004 SC 1467 [LNIND 2004 SC 1522] [LNIND 2004 SC 1522] [LNIND 2004 SC 1522]. 52 East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND 1962 SC 228] [LNIND 1962 SC 228]: 1963 (3) SCR 338. 53 Dattaram S. Vichare v. Thukaram S. Vichare, (1999) 6 SCC 764 [LNIND 1999 SC 685] [LNIND 1999 SC 685] [LNIND 1999 SC 685], 768 (para 8): AIR 2000 SC 103 [LNIND 1999 SC 685] [LNIND 1999 SC 685] [LNIND 1999 SC 685]. 54 Patna Regional Development Authority v. Rashtriya Pariyojna Nirman Nigam, (1996) 4 SCC 529, 531 (paras 6 and 7): AIR 1996 SC 2074. 55 Biswa Ranjan Sahoo v. Sushanta Kumar Dinda, (1996) 5 SCC 365 [LNINDORD 1996 SC 36] [LNINDORD 1996 SC 36] [LNINDORD 1996 SC 36], 367 (paras 3 and 4): AIR 1996 SC 2552 [LNINDORD 1996 SC 36] [LNINDORD 1996 SC 36] [LNINDORD 1996 SC 36]. See also Hanuman Prasad v. Union of India, (1996) 10 SCC 742 [LNINDORD 1996 SC 138] [LNINDORD 1996 SC 138] [LNINDORD 1996 SC 138], 744 (paras 3 and 4). 56 Winky Dilawari v. Amritsar Improvement Trust, (1996) 11 SCC 644 [LNIND 1996 SC 1383] [LNIND 1996 SC 1383] [LNIND 1996 SC 1383], 646 (paras 3 and 4): AIR 2003 SC 3519 [LNIND 2003 SC 395] [LNIND 2003 SC 395] [LNIND 2003 SC 395]. See also Ahuja Industries Ltd. v. State of Karnataka, (2003) 5 SCC 365 [LNIND 2003 SC 395] [LNIND 2003 SC 395] [LNIND 2003 SC 395], 372 (para 13): AIR 1997 SC 293 [LNIND 1996 SC 2402] [LNIND 1996 SC 2402] [LNIND 1996 SC 2402], following Winky Dilawari v. Amritsar Improvement Trust, (1996) 11 SCC 644 [LNIND 1996 SC 1383] [LNIND 1996 SC 1383] [LNIND 1996 SC 1383]: AIR 1997 SC 293 [LNIND 1996 SC 2402] [LNIND 1996 SC 2402] [LNIND 1996 SC 2402]and W.B. Housing Board v. Brijendra Prasad Gupta, (1997) 6 SCC 207: AIR 1997 SC 2745. 57 M. Venkateswarlu v. Govt. of A.P., (1996) 5 SCC 167 [LNIND 1996 SC 546] [LNIND 1996 SC 546] [LNIND 1996 SC 546]. 58 M.C.D. v. Delhi Outdoor Advertisers' Association, (1997) 11 SCC 241, 242 (para 2). 59 Commissioner of Income Tax v. Jai Prakash Singh, (1996) 3 SCC 525 [LNIND 1996 SC 574] [LNIND 1996 SC 574] [LNIND 1996 SC 574], 531-32 (para 15): AIR 1996 SC 1303 [LNIND 1996 SC 574] [LNIND 1996 SC 574] [LNIND 1996 SC 574], following Chatturam v. CIT, (1947) 15 ITR 302 (FC)and Estate of Late Rangalal Jajodia v. CIT, (1970) 3 SCC 371 [LNIND 1970 SC 456] [LNIND 1970 SC 456] [LNIND 1970 SC 456]: (1971) 79 ITR 505 [LNIND 1970 SC 456] [LNIND 1970 SC 456] [LNIND 1970 SC 456]and approving Maharaja of Patiala v. CIT, (1943) 11 ITR 202 (Bom).

(a) Service of Notice A notice to be valid and effective must be properly served on the concerned person. When a particular mode of service of notice has been prescribed by the relevant statute, the prescribed procedure has to be followed. A statutory rule framed under the Foreign Exchange Regulation Act, 1947, prescribed the following modes to serve the notice: (i) by delivering it to him or his duly authorised agent; or (ii) by sending it to him by the registered post at his last known place of residence; or, (iii) failing both modes, by affixing it on the outer door of the residence. A notice sent by registered post to his last known place of residence was returned undelivered. It was then not served in mode (iii) mentioned above. The Court ruled that the notice had not been served on the concerned person, and, in the absence of its service, no proceedings could be initiated against him.60 A small scale industry was served with a notice by the Customs & Excise Deptt. to show cause as to why a certain amount of duty should not be demanded from them for a certain period. The noticee was heard and the Asst Collector of Central Excise passed an order for the amount of duty payable for a larger period. The Apex Court held a show-cause notice for a shorter period could not be relied on for levying duty for a much longer period and it could be said that the noticee was not served with a proper notice hence the proceedings were vitiated.61 A lady returned to India in 1984 from Dubai on transfer of

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residence availing benefits of the Transfer of Residence Rules, 1978. She brought with her a car used by her there. The customs authorities allegedly charged duty at higher rate and gave discount at lower rate than that of the rates permitted under rules. She paid the duty under protest and obtained clearance of the vehicle. Thereafter, she wrote a detailed letter requesting refund of the alleged excess amount of duty paid by her. Thereafter, the superintendent of Customs, Bangalore issued a show-cause notice to her alleging short levy of customs duty. She sent a reply stating that she had already paid the duty payable as assessed under protest and that no details were given in the show-cause notice as to how the basis of alleged short levy was arrived at. After two years and three months, she received another order from the customs mentioning that a comparison was made with a "price list" and accordingly, the assessable value was reworked and the duty payable as per the show-cause notice was calculated to be less. Her appeal was dismissed by the Customs, Excise and Gold Central Appellate Tribunal (CEGAT). The Supreme Court observed that once it was admitted that the price mentioned in the customs magazine was not mentioned in the show-cause notice issued to her, any reliance on the said price mentioned in said magazine must be held to be illegal. Further, that though this point was taken in the grounds of the appeal before the appellate authorities, a copy of the said magazine was never made available to her. The fact that an extract of the relevant portion thereof was produced before the CEGAT for the first time, does not cure the defect. So far as the manufacturer's certificate regarding the price of the car was concerned, neither in the orders of the customs authorities nor in the order of the CEGAT was there a finding that the price mentioned in the said certificate was not the correct one or that the certificate was obtained collusively from the foreign manufacturer. Moreover, there was finding by the customs authorities that the price adopted by the customs authorities was referable to a car of identical make, model, facilities or gadgets as the one imported. The Apex Court held that the order of CEGAT and the customs authorities could not be supported and the show-cause notice was liable to be quashed.62 A vague and unspecific notice does not provide reasonable opportunity to the noticee to file objections.63 A notice in respect of an unauthorized construction was served on the owner of the house. She had not made the construction herself but had purchased the house with the construction in question. The Supreme Court ruled that under the relevant statutory provisions, the notice was not illegal or unauthorized.64 Notice could be served not only on the person who had actually undertaken the unauthorized construction but also on the person who later became its owner. The Punjab Co-operative Societies Act, 1961, provides for compulsory amalgamation of co-operative societies if the Registrar is satisfied that it is necessary to do so in the interests of the co-operative societies. The Registrar is to send a copy of the proposed order to the societies concerned and the creditors and then consider the objections received from them. A creditor or a member of a society objecting to such a proposed order has the option of withdrawing his share, deposit or loan from the concerned society. No express provision has been made for issue of notice to the members of the concerned societies. The Supreme Court has ruled in Daman Singh v. State of Punjab65 that lack of notice to the members is not a flaw in the procedure because a notice to the society will be deemed as notice to all its members. "Once a person becomes a member of a co-operative society, he loses his individuality qua the soceity." He must act and speak through the society. Nevertheless, under the law, a member has been given a right to be heard if he so desires and he has the option to withdraw his membership from the society. If notice could not be served on the concerned party through the party's own fault, then the authority may start with the hearing proceedings in the absence of the party concerned. In U.P. Singh v. Board of Governors, MACT, 66 some students were accused of gross violence against other students. This called for immediate action as it created tension in the area. In spite of the authority trying to serve notice on the accused students, it could not be served on them because they had absconded. The notice was then pasted on the notice board. The authority thereafter proceeded to take the appropriate action. The action of the authority against the students was upheld as the students were themselves at fault.67 Once the mode specified for giving notice is complied with, the onus is on the persons notified to prove that they were not aware of the subject-matter of notice.68

60 K.A. Abdul Khader v. Dy. Director, AIR 1976 Mad 233 [LNIND 1975 MAD 145] [LNIND 1975 MAD 145] [LNIND 1975 MAD 145].

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61 Poulose and Mathem v. Collector of Central Excise, (1997) 3 SCC 50, 57 (para 12): AIR 1997 SC 965. See also Madhukar Rao v. Claims Commissioner, (1998) 8 SCC 544, 545 (paras 2 and 3). 62 M.A. Jackson v. Collector of Customs, (1998) 1 SCC 198 [LNIND 1997 SC 893] [LNIND 1997 SC 893] [LNIND 1997 SC 893], 200 (paras 7, 8 and 9). 63 Food Corporation of India v. State of Punjab, (2001) 1 SCC 291 [LNIND 2000 SC 1719] [LNIND 2000 SC 1719] [LNIND 2000 SC 1719], 297 (para 12): AIR 2001 SC 250 [LNIND 2000 SC 1719] [LNIND 2000 SC 1719] [LNIND 2000 SC 1719]. Facts not stated in notice, defective, matter remitted, Commissioner of Central Excise v. Steel Strips Ltd., (2003) 5 SCC 216 [LNIND 2003 SC 462] [LNIND 2003 SC 462] [LNIND 2003 SC 462], 223 (para 20): AIR 2003 SC 2496 [LNIND 2003 SC 462] [LNIND 2003 SC 462] [LNIND 2003 SC 462]. 64 Municipal Corp. of Ahemdabad v. Ben Hiraben Manilal, AIR 1983 SC 537 [LNIND 1983 SC 101] [LNIND 1983 SC 101] [LNIND 1983 SC 101]: (1983) 2 SCC 422. 65 AIR 1985 SC 973 [LNIND 1985 SC 112] [LNIND 1985 SC 112] [LNIND 1985 SC 112]: (1985) 2 SCC 670. 66 AIR 1982 MP 59 [LNIND 1981 MP 81] [LNIND 1981 MP 81] [LNIND 1981 MP 81]. 67 Also see, Bhupendra Kumar Singhal v. P.R. Mehta, AIR 1990 Guj 49; also, infra, note 60. See, JAIN, Cases, Chapter IX, Sec. I, 817. 68 Rai Vimal Krishna v. State of Bihar, (2003) 6 SCC 401 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545], 411 (para 26): AIR 2003 SC 2676 [LNIND 2003 SC 545] [LNIND 2003 SC 545] [LNIND 2003 SC 545].

(b) Sufficient time to Reply The notice must give to the individual concerned sufficient time to enable him to prepare his defence and file his objections.69 In Liverpool Taxi Owners'Association, IN RE. 70 a letter was sent to the association to show cause by return of post against the proposal to issue fresh taxi licences. The notice was held to be inadequate. It is against natural justice to call upon the concerned person to show-cause immediately and to permit him no time to consider the charges against him. Thus, to give one day's time to show cause against the proposed action to a person who is out of station,71 or to call upon a delinquent employee to show cause immediately and to permit him no time to consider the report against him, amounts to a denial of notice to him.72 It however depends upon the facts of each case whether or not the individual was allowed sufficient time to make representation. The Government of India gave a seven days' notice to the Delhi Municipal Corporation for showing cause against its supersession on a number of grounds. The Government turned down the corporation's request for extending time by ten days to reply to the charges. In a 2 to 1 decision, the Delhi High Court upheld the decision of the government. However, in the context of the facts of the case, the minority opinion seems to be more convincing than the majority opinion.73 The judge emphasized that the proposed supersession was a very important matter for the body to deliberate upon and "In considering the reasonableness of the request for extension of time, it is not possible to ignore that the Corporation was not an individual, who had to act on its own and, therefore, involving a simple process of application of mind. It was a corporate body composed of more than 100 persons."74 In another case, giving of merely three days' notice to the concerned person to show cause against demolition of a house was held to be an inadequate notice and, accordingly, the notice was quashed.75 The Appropriate Authority of Income Tax Department, New Delhi sent a notice addressed on 21.5.1993 which was actually posted on 24.5.1993 to a party at Jaipur to appear before it on 31.5.1993. The notice invited attention of the noticee in respect of the sale of a property on comparatively low consideration. The notice dispatched by speed post was received by the noticee on 26.5.1993 thus giving him only five days time out of which two days were Saturday and Sunday whereas the Appropriate Authority had at his disposal two months and twenty days to take action after the said party had filed the relevant form but he took action only one week before the last date available. The Supreme Court held that in the circumstances of the case practically giving only three days time to the noticee to respond, was most inadequate.76 The length of the notice period would thus depend upon the nature of the interest and the issues involved. When the show cause notice did not give reasonable time to reply, i.e., gave only a few hours for the purpose, but the explanation of the concerned person was nevertheless received and order passed after considering the explanation, the Court ruled that there was no violation of natural justice.77 If it is necessary to hold an enquiry urgently, a short notice may be held valid.78

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The authority concerned should not take a decision before the expiry of the period allowed in the notice to the noticee to show cause against the proposed action.79 A student was charged with using unfair means at the examination. A show-cause notice was given to him. He was to send his representation within 15 days of the receipt of the notice. He received the notice on 7-8-73. But on 20-8-73, the Vice-Chancellor passed the order imposing punishment on him. The High Court quashed the order as it had been passed even before the expiry of the period allowed to him by the notice to submit his explanation. The licensing officer called upon a licensee to file his statement against the proposed cancellation of trading licence. The last day fixed for the purpose was declared to be a public holiday, but the authority cancelled the licence on the very same day without waiting for his representation. The cancellation order was quashed as the Court, ruled that the licensee was entitled to file his representation on the next day and the impugned order was thus made without giving him a hearing.80 Under the Electricity Act, sixty days notice was required to be given to the State Government for its approval to the enhancement of the rates of tariff. The notice fell short by two days. The Supreme Court held that since neither the State Govt. insisted on such a notice for the full period nor the consumer could show any prejudice to have been caused to him by the deficiency in notice, such deficiency was not vitiative of the rates of tariff so enhanced. Further, the grant of approval by the State Government long after the expiry of the statutory period of notice did not have the effect of vitiating the enhancement of the rates of tariff.81

69 C.I.T. v. Bombay Trust Corp. Ltd., AIR 1936 PC 269; Public Prosecutor v. K.P. Chandrasekharan, (1957) 8 STC 6 (Mad); Sudhir Rajan v. State of West Bengal, AIR 1961 Cal 626 [LNIND 1961 CAL 46] [LNIND 1961 CAL 46] [LNIND 1961 CAL 46]; K. Sathyashankara Shetty v. Mangalore University, AIR 1992 Kant 79 [LNIND 1990 KANT 125] [LNIND 1990 KANT 125] [LNIND 1990 KANT 125]. 70 (1972) 2 All ER 589. 71 Public Prosecutor v. Chandrasekharan, (1957) 8 STC 6 (Mad). One day's notice was held inadequate in Gullapalli N. Rao v. A.P.S.R.T.C., AIR 1959 SC 1335 [LNIND 1959 SC 131] [LNIND 1959 SC 131] [LNIND 1959 SC 131]at p. 1336: (1960) 1 SCR 412 (Gullapalli II). 72 Bua Das v. State of Punjab, AIR 1965 Punj 342. 73 Satish Chandra v. U.O.I., AIR 1983 Del 1. 74 Satish Chandra v. U.O.I., AIR 1989 Cal 294 [LNIND 1987 CAL 318] [LNIND 1987 CAL 318] [LNIND 1987 CAL 318]at 302. 75 G. Kamalakumari v. Municipal Corp. of Hyderabad, AIR 1990 AP 159 [LNIND 1989 AP 50] [LNIND 1989 AP 50] [LNIND 1989 AP 50]. Another ground to quash the notice was that no particulars of the so-called violations alleged to have been committed by the noticee were given therein. 76 Sona Builders v. Union of India, (2001) 10 SCC 280, 281 (para 3). 77 H.P. Ramakrishna Rao v. Asstt. Collector, Hosur, AIR 1983 Mad 361 [LNIND 1983 MAD 135] [LNIND 1983 MAD 135] [LNIND 1983 MAD 135]. 78 S. Chenthil Kumar v. Director of Technical Education, AIR 1991 Mad 223 [LNIND 1990 MAD 65] [LNIND 1990 MAD 65] [LNIND 1990 MAD 65]. 79 K.C. Cyriac v. Vice-Chancellor, AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41]. 80 Kashiram Dalmia v. State, AIR 1978 Pat 265. 81 Graphite India Ltd. v. Durgapur Project Ltd., (1999) 7 SCC 645 [LNIND 1999 SC 753] [LNIND 1999 SC 753] [LNIND 1999 SC 753], 664 (para 26): AIR 1999 SC 3289 [LNIND 1999 SC 753] [LNIND 1999 SC 753] [LNIND 1999 SC 753].

(c) A Notice to be Effective Must be Adequate Notice does not mean just any kind of notice; it means an adequate notice as regards the details of the case against the concerned party. Any proceeding taken against a person without adequate notice to him infringes the concept of natural justice and is thus invalid.82 A proper notice should indicate the time and place of hearing as well as the specific case or allegations which the noticee is required to defend himself against.

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The notice must not be vague, must be adequate and give the concerned party enough information about the issues involved so as to enable him to prepare his case.83 There is no invariable standard of adequacy of a notice. It may vary from case to case depending upon the factual situation of each case. It is ultimately for the Court to decide whether in a given case, notice served was adequate or not. The test is whether the concerned person has been prejudiced or not in presenting his case.84 In the words of the Supreme Court, the Court's conscience must be satisfied that the concerned person had a fair chance to know the details of the case against him and of the action proposed to be taken against him.85 A notice in the bare-bones language of the statute, i.e. which merely repeats the statutory language without giving any facts and other particulars, is insufficient and inadequate.86 S. 7of the Administration of the Evacuee regarded as. Property Act, 1950, required a notice to be given to the persons interested in the property, before declaring it to be evacuee property. Rule 6made under the Act required that the notice "shall, as far as practicable, mention the grounds on which the property is sought to be declared as evacuee property." In the instant case, the notice repeated merely the statutory formula without giving any particulars. Also, another flaw in the notice was that the notice mentioned only one ground for declaring the appellant as an evacuee whereas he was later declared to be an evacuee not only on that ground but also on two more grounds which were not mentioned in the notice. It was held to be a bad notice. The Court emphasized that the notice should contain a statement of factual grounds on which the notice was based. Also, the notice did not mention the statutory provisions under which the affected persons were held to be evacuees. Such a notice could not provide a foundation for the proceedings which followed and, hence, the whole proceeding must fall to the ground.87 Thus, the Supreme Court has forcefully underlined the two attributes which a notice must fulfil: (1) It must be adequate; (2) It must fully mention all the grounds on which action is proposed to be taken against the concerned person. Although this case relates to a statutory notice, the same principle is applicable to notice as an element of natural justice as well. Further, the grounds given in the notice on which the action is proposed to be taken should be clear, specific and unambiguous.88 If these conditions are not satisfied, the person cannot be said to have a reasonable opportunity of being heard. A vague notice is no notice at all in the eyes of the law and all subsequent proceedings based on such a notice would be vitiated.89 Thus, if the charge-sheet served on an employee against whom disciplinary action is proposed to be taken contains allegations of fraud without mentioning the particulars of fraud,90 or if the notice does not mention the date, time and location of the incident,91 or mentions the charges without mentioning the action proposed to be taken,92 or does not mention the grounds on which action is proposed to be taken,93 or mentions one ground but the action is taken on some other ground,94 or on additional grounds,95 or if the notice mentions several grounds (some of them in the alternative) without specifying the particular grounds for the proposed adverse action against the concerned individual,96 the notice suffers from vagueness. It is not proper to frame trap charges, i.e. charges in such a manner that whatever explanation the noticee may give, he would be held guilty. If it is desired to prefer alternative charges, then they should be preferred in the alternative in the recognised form so that the inquiry body could decide, on the basis of evidence, which alternative has been established,97 S. 12of the Andhra Pradesh Cinema (Regulations) Act, 1955, empowers the government by a written order to exempt any cinematograph exhibitor from any provision of the Act if, in its opinion, there are reasonable grounds for doing so. Under the rules, the distance between a permanent and a temporary theatre should be 800 metres. The government proposed to exempt the respondent, owner of a temporary theatre, from this condition. This would have adversely affected the owner of a permanent theatre within 400 metres of the temporary theatre and so he had a right to object to the government proposal. The government did give him a notice expressing its intention to exempt the respondent but mentioned no ground for doing so. The Court ruled that the notice given to the petitioner was no notice at all and on the basis of such a 'notice' no effective representation could be made by him against the proposed exemption. Thus, the notice being defective was quashed and, consequently, the order of exemption based on the notice also had to be quashed.98 In N.S. Transport v. State of Punjab, 99 a company had 33 stage carriage permits for various routes. The Transport Commissioner, on receiving some complaints against the company, issued a notice asking it to show cause why action to cancel or suspend its permits should not be taken. The Supreme Court held the notice to be bad. Reading the relevant statutory provision (S. Section 60of the Motor Vehicles Act, 1939), the Court ruled that the minimum requirement of S. 60was that the "proposed penal action has to be particularised with reference to each permit detailing the particular conditions for breach of which action is

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sought to be taken in connection with a particular permit". A bald notice covering all the permits could not be issued without making any reference to any particular permit for cancellation or suspension. Charges must be made with reference to each permit in clear terms so as to enable the permit-holder to furnish his explanation. A departmental action for violation of conditions of permit must relate to particular permits. Unless breaches of conditions were particularised with reference to each permit in the show cause notice, such notice was clearly invalid and no action could be taken under such a notice. In Vilangandan,1 when the executive engineer proposed to blacklist a contractor, he gave a notice to him. The Supreme Court found the notice to be inadequate as it did not contain words to indicate clearly to the contractor that it was proposed to debar him from taking any contract in future under the Department. Thus, the notice should also mention the action proposed to be taken against the noticee. In Ambika Devi v. State of Bihar, 2 the Patna High Court quashed a notice which mentioned only the date of hearing and nothing more. It did not indicate the specific allegations which the petitioner had to meet at the hearing. The Court emphasized that a notice to be valid must satisfy at least three requirements: (i) it must state the act complained of attracting adverse action; (ii) it must state the action proposed to be taken, and (iii) it must state the source of power under which the action is proposed to be taken. Besides, it must also prescribe the time and place of hearing and the period within which the show cause may be filed. In other words, the notice must contain all that is necessary for the person concerned to make an effective representation against the proposed action so that he is not taken by surprise in the proceedings. The Court ruled that the case was "not one of inadequacy of notice", but a case "where no notice at all was given" to the noticee. To the same effect is Bhupendra.3 The student was given notice to present himself before the disciplinary committee on a certain day at a certain time, but no charges were mentioned in the said notice. The Court ruled that the decision of the committee was vitiated for this reason. An example of a show cause notice being held vague is furnished by B.D. Gupta v. State of Haryana .4 The Court ruled that the affected person did not get an opportunity to defend himself and, accordingly, the punishment of censure imposed on him was struck down. Again, in Maharaja Dharmander Prasad Singh,5 a case of cancellation of permission to construct a building, the Supreme Court held the notice given to the respondent to be faulty: "The show cause notice itself is an impalpable congeries of suspicions and fears, of relevant or irrelevant matter and has included some trivia." Quashing the notice in question, the Court suggested that if the authority considered it necessary to start proceedings afresh, it should "issue a fresh show cause notice setting out the precise grounds."6 In Govindarajulu,7 on one and the same sheet of paper, two notices were given: one, saying that an enquiry would be held by the competent authority at a particular place on the date fixed to verify whether the occupation of the public premises in question by the noticee was unauthorised, without indicating the number or the name of the premises about which the enquiry was to be held; two, another notice indicating that possession of the premises in question had been taken over by the government in pursuance of the eviction proceedings taken under S. 3(1)of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1978, and, therefore, the superstructure was required to be removed within seven days of the service of the notice, failing which it would be removed and disposed of by public auction. The High Court ruled that the two notices were contradictory to each other: no question of holding an enquiry to verify unauthorised occupation could arise if possession had already been taken over; nor could an inquiry be held after taking over possession or simultaneously with it. The rolling of the two notices was inconsistant with the statutory provisions and it was illegal to issue both the notices on the same day. A vague notice is no notice. The Board of Technical Education cancelled examination results of a few candidates. The High Court found that the notices served on the candidates were so vague and imprecise that "they could not have effectively defended themselves in the inquiry". In the absence of proper notices, the inquiry was held to be invalid as being violative of natural justice. Hence, the High Court directed the Board to declare the results of the candidates who had filed the writ petitions. On appeal by the Board, the Supreme Court refused to interfere with the High Court order.8 Where in a disciplinary proceeding against an advocate, he was not apprised of the exact content of the professional misconduct attributed to him and he was not made aware of the precise charge he was required to rebut, the Supreme Court ruled that he was not afforded reasonable and fair opportunity of being heard.9 The notice must mention all the grounds on which action is proposed to be taken against the concerned person. If later some of the grounds are not substantiated, these may be dropped and proper action taken

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against the person on the grounds substantiated. Action cannot be taken against the concerned person on a ground not mentioned in the notice.10 There must be relationship between the grounds mentioned in the notice and the grounds on which action is taken.11 If it transpires later that action has been taken on a ground not communicated to the concerned party earlier, then the action will be held to be invalid.12 The managers of a school were called upon by the government to explain why they failed to pay salaries to the teachers by the 10th of the last month. The managers explained but the government took over the school. It was later found that the government took the action on two grounds whereas only one of the grounds was mentioned in the show cause notice. The Privy Council ruled that the government was bound to observe natural justice which meant that it must have given the managers "notice of what was charged against them and allow them to make representation in answer." The decision was quashed as the managers were not given notice of one ground which was a "more far-reaching matter" than the one notified to them, which influenced the government in making the order.13 In U.O.I. v. Narayanbhai, 14 the notice for disconnecting the respondent's telephone merely stated that the telephone would be disconnected after seven days. The telephone was actually disconnected after seven days. The High Court ruled that the notice should have stated why and for what reasons the telephone was sought to be disconnected. Giving of reasons in the notice would have helped the respondent-subscriber to controvert them and the authority concerned could have then taken a decision after considering all the material. In the absence of reasons in the notice, it could not be held to be proper. In Liberty,15 Cl. 8B of the Import (Control) order, 1955 was involved. The Clause provides that a decision to keep in abeyance applications for import licences, must be communicated to the applicants "without assigning any reason". The Supreme Court has interpreted this phraseology to mean that though the authority need not state "formal" reasons for abeyance of applications, it must still mention "skeletal" allegations in the communication so as to provide an opportunity to the person affected to make his representation. The Court has thus displayed a liberal attitude in the area of import licensing.

82 Municipal Board v. State Transport Authority, AIR 1965 SC 458 [LNIND 1962 SC 383] [LNIND 1962 SC 383] [LNIND 1962 SC 383]: 1963 Supp (2) SCR 373 83 G. Kamalakumari v. Municipal Corp. of Hyderabad, AIR 1990 AP 159 [LNIND 1989 AP 50] [LNIND 1989 AP 50] [LNIND 1989 AP 50]. 84 Ketan Shiv Ktnnar v. Gujarat H.S. Education Board, AIR 1984 Guj 47 [LNIND 1983 GUJ 203] [LNIND 1983 GUJ 203] [LNIND 1983 GUJ 203]; Municipal Corporation, Ahmedabad v. Bhagwandas Parumal, AIR 1984 Guj 1 [LNIND 1983 GUJ 98] [LNIND 1983 GUJ 98] [LNIND 1983 GUJ 98]. 85 Fedco v. Bilgrami, AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]: (1960) 2 SCR 408: 1960 SCJ 235 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]. 86 Kumar Keshridas v. Divisional Engineer, Telephones, AIR 1984 MP 158 [LNIND 1984 MP 37] [LNIND 1984 MP 37] [LNIND 1984 MP 37]; U.O.I. v. Narayanbhai Keshavlal, AIR 1985 Guj 31 [LNIND 1984 GUJ 185] [LNIND 1984 GUJ 185] [LNIND 1984 GUJ 185]; J.M.A. Industries v. U.O.I., AIR 1980 Del 200 [LNIND 1980 DEL 24] [LNIND 1980 DEL 24] [LNIND 1980 DEL 24]. 87 Nasir Ahmed v. Asstt. Custodian-General, Evacuee Property, AIR 1980 SC 1157 [LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149]: (1980) 3 SCC 1; JAIN, Cases, 655. Also see, Kumar Keshridas v. Divisional Engineer, Telephones, AIR 1984 MP 158 [LNIND 1984 MP 37] [LNIND 1984 MP 37] [LNIND 1984 MP 37]. North Bihar Agency v. State of Bihar, AIR 1981 SC 1758: (1981) 3 SCC 131; Ram Singh Chauhan v. State of Madhya Pradesh, AIR 1984 MP 151. 88 Charandas v. Asst. Collector of Customs AIR 1968 Cal 28 [LNIND 1967 CAL 66] [LNIND 1967 CAL 66] [LNIND 1967 CAL 66]. 89 Board of Technical Education, U.P. v. Dhanwantari Kumar, AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC 626] [LNIND 1990 SC 626]; A. Ramakoteswara Rao v. Vice-Chancellor, Nagarjuna University AIR 1991 AP 71 [LNIND 1990 AP 39] [LNIND 1990 AP 39] [LNIND 1990 AP 39]. 90 State of U.P. v. Salig Ram Sharma, AIR 1960 All 543 [LNIND 1960 ALL 46] [LNIND 1960 ALL 46] [LNIND 1960 ALL 46]; M.A. Kamath v. Karanataka State Finance Corpn., AIR 1981 Kant 193; Lakshmi Narain v. A.N. Puri, AIR 1954 Cal 335 [LNIND 1953 CAL 29] [LNIND 1953 CAL 29] [LNIND 1953 CAL 29]. 91 State of U.P. v. Mohd. Sharif, AIR 1982 SC 937 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13]: 1982 (2) LLJ 180: (1982) 2 SCC 376 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13].

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92 Abdul Latif v. Commissioner, AIR 1968 All 44 [LNIND 1966 ALL 85] [LNIND 1966 ALL 85] [LNIND 1966 ALL 85]. 93 Sub-Divisional Controller, F & S v. Amulya Ratan, AIR 1985 Cal 281 [LNIND 1985 CAL 72] [LNIND 1985 CAL 72] [LNIND 1985 CAL 72]. 94 Joseph Vilangandan v. Executive Engineer, AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108]: (1978) 3 SCC 36; Tribendralal v. Gauhati University, AIR 1983 Gau 73. 95 Nasir Ahmed v. Asst. Custodian-General, Evacuee Property, AIR 1980 SC 1157 [LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149]: (1980) 3 SCC 1; JAIN, Cases, 655. 96 Sinha Govindji v. Dy. Chief Controller of Imports, (1962) 1 SCJ 93: 1962 (1) SCR 540 [LNIND 1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542]. 97 Sloan v. General Medical Council, (1970) 2 All ER 686. 98 S. Subba Rao v. P. Veeraraghavaiah, AIR 1976 AP 309 [LNIND 1975 AP 217] [LNIND 1975 AP 217] [LNIND 1975 AP 217] 99 AIR 1976 SC 57 [LNIND 1975 SC 401] [LNIND 1975 SC 401] [LNIND 1975 SC 401]: (1976) 1 SCC 757. 1 Joseph Vilangandan v. Executive Engineer, AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108]: (1978) 3 SCC 36. Also see, Eurasian Equipment & Chemicals Ltd. v. State of W.B., supra, Chapter IX; JAIN, Cases, 511; Janata Supply Syndicate v. State of W.B., AIR 1983 NOC 9 (Cal) 4. 2 AIR 1988 Pat 258; JAIN, Cases, 649. 3 Bhupendra Kumar Singhal v. P.R. Mehta, AIR 1990 Guj 49; JAIN, Cases, Chapter IX, Sec. I, 817. 4 AIR 1972 SC 2472 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]: 1973 (1) LLJ 26: (1973) 3 SCC 149 [LNIND 1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441]. 5 State of U.P. v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505; JAIN, Cases, Chapter VIII, 597. 6 AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]at 1011: (1989) 2 SCC 505 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]. 7 Govindrajulu v. Assts. Divnl. Engineer, H. & R.W., Vridhachalam, AIR 1988 Mad 188 [LNIND 1986 MAD 46] [LNIND 1986 MAD 46] [LNIND 1986 MAD 46]. 8 Board of Technical Education, U.P. v. Dhanwantari Kumar, AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC 626] [LNIND 1990 SC 626]. Also see, A. Ramakoteswara Rao v. Vice-Chancellor, Nagarjuna University, AIR 1991 AP 71 [LNIND 1990 AP 39] [LNIND 1990 AP 39] [LNIND 1990 AP 39]. 9 In re: v. An Advocate, AIR 1989 SC 245; JAIN, Cases, Chapter XII, Sec. G. 10 Sub-Divisional Controller, F.&S. v. Amulya Ratan, AIR 1985 Cal 281 [LNIND 1985 CAL 72] [LNIND 1985 CAL 72] [LNIND 1985 CAL 72]; Indrajit Singh v. State of U.P., AIR 1991 All 228 [LNIND 1990 ALL 356] [LNIND 1990 ALL 356] [LNIND 1990 ALL 356]. 11 Tribendralal v. Gauhati University, AIR 1983 Gau 73. 12 Annamunthodo v. Oilfields Workers' Trade Union, (1967) AC 945. 13 Maradani Mosque Trustees v. Badi-ud-din Mahmud, (1967) 1 AC 13. 14 AIR 1985 Guj 31 [LNIND 1984 GUJ 185] [LNIND 1984 GUJ 185] [LNIND 1984 GUJ 185]. 15 Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465; JAIN, Cases, 552.

(d) Form of Notice The statutory provisions may prescribe the form in which the notice is to be issued to the affected party. Ordinarily, the prescribed form has to be complied with by the authority. When a statutory provision prescribes what the contents of a notice should be, then a notice not in accordance with this provision is invalid. For example, S. 4(2) (a)of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, requires that the notice to be issued must specify the grounds on which the notice is sought to be evicted from the premises in question. A notice not specifying the grounds is bad and would vitiate the entire

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proceedings.16 But, as the purpose of giving notice is to furnish an opportunity to the concerned individual to present his case adequately, there may be factual situations where some minor deficiencies or technical irregularity may be condoned by the Court. A minor irregularity in the issue of notice which does not prejudice the concerned person may not be violative of the statutory provision, but a substantial irregularity will.17 Thus, it has been held that not scoring out unnecessary words from the printed form of notice,18 or when there was no essential difference in the particulars mentioned in the notice issued from those prescribed by the rules,19 and no prejudice was caused to the party, there was no denial of a reasonable opportunity of being heard to the concerned person. In one case, the statute required the issue of notice mentioning the date, time and place of hearing but the notice did not mention the place of hearing. It was held that this did not invalidate the proceedings as the appellant was not a stranger to the place of office of the tribunal in question.20 In the United States, notice is normally required by the due process clause in the Constitution.21 Also, S. 554(b)of the Administrative Procedure Act lays down a general rule regarding the requirement and form of notice. It states that the persons entitled to notice of an agency hearing shall be timely informed of--(i) the time, place, and nature thereof; (ii) the legal authority and jurisdiction under which the hearing is to be held; and (iii) the matters of fact and law asserted. Thus, specification of issues is one of the basic elements of fair procedure. The notice must not only tell him when and where the hearing will be held but must also apprise the individual of the issues involved. No such general requirement has yet been laid down in India through a statute,22 but the Courts can assimilate these requirements of notice in their pronouncements on natural justice.

16 Wirenetting Stores v. Delhi Development Authority, (1969) 3 SCC 415: 1969 UJ (SC) 20; B.K Mehra v. L.I.C. of India, AIR 1991 Cal 256 [LNIND 1990 CAL 182] [LNIND 1990 CAL 182] [LNIND 1990 CAL 182]. 17 Rajmani Devi v. C.I.T., AIR 1937 All 771; Chokalingam v. Commissioner, Income Tax, AIR 1963 SC 1456 [LNIND 1962 SC 334] [LNIND 1962 SC 334] [LNIND 1962 SC 334]: (1963) 48 ITR 34. 18 State of Orissa v. Chakobhai, AIR 1961 SC 284 [LNIND 1960 SC 210] [LNIND 1960 SC 210] [LNIND 1960 SC 210]: 1961 (1) SCR 719. 19 Inayatullah v. Custodian, Evacuee Property, AIR 1958 SC 160 [LNIND 1957 SC 147] [LNIND 1957 SC 147] [LNIND 1957 SC 147]: 1958 SCR 816. 20 Ikram Khan v. S.T.A. Tribunal, AIR 1976 SC 2333 [LNIND 1976 SC 303] [LNIND 1976 SC 303] [LNIND 1976 SC 303]: (1976) 4 SCC 1. 21 Goldberg v. Kelly, 397 US 254 (1970). 22 For details, see, SCHWARTZ, Administrative Law--A Casebook, 459-471 (1988).

3. DISCLOSURE OF MATERIALS TO THE PARTY The general principle is that an adjudicatory body cannot base its decision on any material unless the person against whom it is sought to be utilised has been apprised of it and given an opportunity to rebut, comment, criticize or explain the same.23 As the Supreme Court has stated: "No materials should be relied on against him without his being given an opportunity of explaining them."24 If the adjudicatory body is going to rely on any material, evidence or document for its decision against a party, then the same must be brought to his notice and he be given an opportunity to rebut it or comment thereon. It is regarded as a fundamental principle of natural justice that no material ought to be relied on against a party without giving him an opportunity to respond to the same. The right of being heard may be of little value if the individual is kept in the dark as to the evidence against him and is not given an opportunity to deal with it. The right to know the material on which the authority is going to base its decision is an element of the right to defend oneself. If without disclosing any evidence to the party, the authority takes it into its consideration, and decides the matter against the party, then the decision is vitiated for it amounts to denial of a real and effective opportunity to the party to meet the case against him. The principle can be seen

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operating in several judicial pronouncements where non-disclosure of materials to the affected party has been held fatal to the validity of the hearing proceedings.25 The drug licence of the appellants was cancelled on certain charges without giving them a proper opportunity of hearing. Also, certain charges not mentioned initially in the show cause notice were also taken into consideration by the appellate authority and the order of cancellation of the licence was confirmed. The Supreme Court quashed the order as the authority had relied upon certain additional material without furnishing an opportunity to the licensee to meet the same. The Court ruled that the material in question ought to have been furnished to the appellants before reliance was placed thereon for the purpose of confirming the cancellation order passed by the licensing authority in the first instance.26 In Kashinath Dikshita v. U.O.I., 27 an order of dismissal of a government servant was quashed because the disciplinary authority refused to furnish to him copies of the several documents and statements of witnesses which were recorded ex parte at the pre-enquiry stage. The authority did give him an opportunity to inspect the documents himself and make his own notes but refused his request to have the relevant portions of documents extracted with the help of a stenographer. This was held fatal to the validity of the hearing proceedings.28 The Court emphasized that a government servant facing disciplinary proceedings was entitled to a reasonable opportunity of being heard to meet the charges against him in an effective manner and unless copies of the relevant statements and documents to be used against him were made available to him, he could not prepare his defence, cross-examine witnesses and point out the inconsistencies in the allegations. The Court observed: "The respondents (Government of India) have not been able to satisfy us that no prejudice was occasioned to the appellant." In the following case,29 the Supreme Court quashed an order of dismissal of the respondent by the appellant bank (held to be an authority under Art. 12),30 because he was not given adequate opportunity to examine the documents mentioned in the charge-sheet served on him and, thus, he was handicapped in filing his show cause and defending himself effectively. The Court directed the Bank if it still desired to go ahead with the inquiry after the lapse of so many years, to serve copies of the relevant documents on the respondent. If any document was of a confidential nature, it was to be indicated to the respondent. The Court asked the inquiry officer to decide whether the non-disclosure of such a document would violate the rules of natural justice. A caveat needs to be entered into at this stage. If the inquiry officer sees a document, but it is not shown to the concerned person, it might result in the inquiry being vitiated as was held in the Kanda case.31 In Vijay Kumar v. State of Maharashtra, 32 the appellant was denied senior time-scale on the basis of a confidential report which was not supplied to him while his juniors had been given that scale. The Court quashed the government order on the ground that the rules of natural justice had been violated in the instant case. An order of dismissal of an employee of a panchayat was set aside because he was not given any opportunity to see the documents.33 But in Chandrama Tiwari v. U.O.I., 34 the Supreme Court has confined the above principle to relevant and material documents only. No copy need be supplied of a document which has no bearing on the charges, or if it is not relied upon by the enquiry officer to support the charges, or if such document or material is not necessary for purposes of cross-examination of witnesses during the inquiry. "The decision of the question will depend upon the facts and circumstances of each case." Natural justice is infringed if an adjudicatory body decides a matter on the basis of material gathered through confidential enquiries conducted behind the back of the concerned party.35 In Dhakeswari Cotton Mills,36 the Supreme Court regarded it as a violation of natural justice when the Income Tax Appellate Tribunal took into consideration, but did not disclose to the assessee, the information which had been supplied against him by the departmental representative. Similarly, while disposing of a review application under Rule 59of the Mineral Concession Rules, from a decision of the State Government rejecting the application of the appellant for a mining lease, the Government of India asked for a report from the State Government and entered into correspondence with it regarding the merits of the appellant's application. It then rejected the application. On being asked by the appellant to give him a copy of the report of the State Government, the Central Government refused to do so. The Court quashed the order of the Government of India holding that the appellant was not informed of the report and the government could not act on the basis of materials against which the appellant had no opportunity to make his representation. If the Central Government was considering the report of the State Government which made any point against the appellant's representations, then in fairness, the appellant was entitled to be informed as to what these were and to be given an opportunity to point out how far they militated against the contention raised by him.37 In the

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Mahadayal case,38 where the sales tax officer depended entirely on the advice of his senior, and assessed the appellant to sales tax, without showing him the senior's opinion and giving him an opportunity to state his point of view against the same, the Supreme Court quashed the assessment proceedings. The Court ruled that the opinion of the senior officer ought to have been brought to the notice of the assessee and an opportunity given to him to state his point of view against the same. Non-disclosure of the senior officer's opinion to the assessee was fatal to the assessment proceedings. Where betelnuts seized from the petitioner were confiscated by the customs authorities, and the order was based on the report of the experts, non-disclosure of the contents of the report was held to vitiate the confiscation proceedings.39 In revision proceedings under S. 27 of the Administration of Evacuee Property Act, 1950, the Custodian-General accepted new evidence by one party but failed to give an opportunity to the other party to meet the evidence tendered against him. The procedure was held to be wholly inconsistent with the procedure of natural justice.40 In a disciplinary proceeding against an income tax officer, the enquiry officer made some private enquiries about I.T.O.'s property The Court regarded the procedure to be bad as the I.T.O. had not been associated with the enquiry.41 Section 47(1-H)of the Motor Vehicles Act, 1939, provided that while considering applications for the grant of a stage carriage permit in respect of any interstate route, the application from a state transport undertaking should be given preference over all other applications provided it would be able to operate on the route without detriment to its responsibility for providing efficient and adequate road transport service on the nationalised routes already running within the State. In Kan Singh v. S.T.A. Tribunal, 42 the Regional Transport Authority (RTA) considered applications of the appellants, (who were private transporters), for renewing their permits in respect of an interstate route as well as applications of government-owned Rajasthan State Road Transport Corporation for grant of fresh permit for the same route. RTA heard all these applications together and reserved order for over a year. In the meantime, RTA, without any notice to the appellants, took into consideration the fact of grant of permits to the government corporation for some other interstate routes and on that basis also granted it the permit in the present case and rejected the applications of the appellants. Quashing the RTA's order and also that of the State Transport Appellate Tribunal which had upheld the RTA's order in appeal, the Supreme Court held that the appellants were given no opportunity by the RTA to know what materials were considered by it after the closure of the hearing of the applications on the basis of which it granted the permit to the government undertaking. On the other hand, the government corporation had full opportunity to know all the documents placed by the appellants before the RTA. The grant of the permit was thus held to be a clear violation of the principles. of natural justice. In a proceeding for condemning food as unfit for human consumption, the justice of the peace, after hearing all evidence, retired to his chamber with the public analyst and chief veterinary officer. He returned arter some time and gave a decision against the company concerned. These persons were in one way or another connected with the prosecution: the public analyst had given the certificate of analysis saying that the food was unfit for human consumption, but he was not examined as a witness in the proceedings. The Court quashed the proceedings emphasizing that the justice should have acted with "openness, impartiality and fairness," and that he broke the rule when he retired with the two officials to take advice before announcing his decision. The Court emphasized that the justice should not have taken any fresh advice or heard any fresh evidence in the absence of the party concerned, unless he informed the other party as to what advice he had received and thus enabled him to deal with it.43 On the basis of an inspection report, the telephone of the petitioner was disconnected on the ground of unauthorised use. A copy of the report was not supplied to him. The Court quashed the order of disconnection as the petitioner had no opportunity to meet the case against him as contained in the report.44 In Vijay Kumar v. State of Maharashtra, 45 on the basis of a confidential report, the appellant was denied senior time-scale while the same was granted to his juniors. The Supreme Court quashed the order as a copy of the report was not supplied to the appellant and this amounted to a breach of natural justice. While the principle is well established that the person concerned should be adequately informed of the case against him46, questions may be raised about the extent and content of the information to be given to him. Courts may have to decide whether in a particular case all the relevant and material documents were disclosed to him or not. The Court may hold in a case that it was not necessary to disclose a particular document or that what was disclosed was adequate; the extent and content of the information to be disclosed would depend upon the facts of each case. Whether a document is material or not depends on the facts and circumstances of each case. For example, it is not necessary to disclose such materials to the

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party concerned as are not going to be relied upon as evidence against him by the adjudicating authority.47 If the gist of the documents against the party affected has been brought to his notice, then the non-supply of the copies of the same may not violate natural justice. A licence for conducting games of skill and dances was cancelled. The Supreme Court set aside the order because of non-communication of the copies of documents on which the order of cancellation was based. Even if copies of documents are not furnished, substance of these documents ought to be furnished provided the summary is not misleading.48 It has been held that in income tax proceedings the assessing authority is not required to supply copies of the records of third persons when it wants to use these against the assessee and it would be adequate if the information contained therein is supplied to him.49 In a proceeding under the Motor Vehicles Act, when the tribunal hearing rival appellants for bus permits did not supply a copy of the police report to the complaining party and the party had not asked for its copy at that time, the Supreme Court rejected the contention that the non-supply of a copy of the report was a breach of natural justice. Reading of the report was held to be enough compliance with the principles of natural justice.50 There may be a case when it is not clear whether the affected party was apprised of the Administration's case against him. In such a situation, it may be better for the Court to decide in favour of the affected party. From this point of view, Fedco v. Bilgrami, 51 is a controversial ruling where an import licence of the petitioner was cancelled on the ground of fraud. He was not supplied with the particulars of fraud, nor was he allowed to inspect the concerned documents; he only had a personal interview with the licensing authority. While the majority thought that there was no denial of natural justice, Subba Rao, J., thought otherwise. However, where non-supply of the copy of a letter which had no bearing at all as no prejudice was caused to the party, no principle of natural justice could be said to have been violated.52

23 H. Sabey & Co. Ltd. v. Secretary of State for the Environment, (1978) 1 All ER 586. 24 U.O.I. v. Varma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], 884, 885: 1958 (2) LLJ 259 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]. 25 State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623; State of Orissa v. Binapani, AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: 1967 (2) LLJ 266; Sinha Govindji v. Deputy Chief Controller of Imports, (1962) 1 SCJ 93: 1962 (1) SCR 540 [LNIND 1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542]; Bishambhar Nath v. State of U.P., AIR 1966 SC 573 [LNIND 1965 SC 256] [LNIND 1965 SC 256] [LNIND 1965 SC 256]: 1966 (2) SCR 158; Sovachand Mulchand v. Collector, Central Excise, AIR 1968 Cal 174 [LNIND 1966 CAL 202] [LNIND 1966 CAL 202] [LNIND 1966 CAL 202]; Shri Bhairav Nath v. Central Board of Education, AIR 1991 Del 232; Dev Pal Singh v. Vice-Chancellor, AIR 1992 All 163 [LNIND 1991 ALL 377] [LNIND 1991 ALL 377] [LNIND 1991 ALL 377]; Pepsu Road Transport Corporation v. Lachhman Dass Gupta, (2001) 9 SCC 523 [LNIND 2001 SC 280] [LNIND 2001 SC 280] [LNIND 2001 SC 280], 524 (para 2); Uttar Pradesh (Madhya) Ganna Beej Evam Vikas Nigam Ltd. v. Prem Chandra Gupta, 2000 (1) LLJ 1052; Chairman, Vikashapatnam Port Trust v. M.P. Rama Chandra Reddy, JT 2001 (S2) SC 42. 26 North Bihar Agency v. State of Bihar, AIR 1981 SC 1758: (1981) 3 SCC 131. Also see, Sanghi Textile Processors (P) Ltd. v. Collector of Central Excise, JAIN, Cases, 658. 27 AIR 1986 SC 2118 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199], 2120: 1986 (2) LLJ 468 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]: (1986) 3 SCC 229 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]. Also see, JAIN, Cases, Chapter IX, Sec. B, 658. 28 Reference made to: Tirlok Nath v. U.O.I., 1976 Serv. L.R. 759 (SC); State of Punjab v. Bhagat Ram, AIR 1974 SC 2335 [LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308]: (1975) 1 SCC 155. 29 Chairman, Prathma Bank, Moradabad v. Vijay Kumar, AIR 1989 SC 1977 [LNIND 1989 SC 407] [LNIND 1989 SC 407] [LNIND 1989 SC 407]: (1989) 4 SCC 441: (1990) 67 Comp Cas 71. 30 See, infra, under Judicial Control on this point. 31 B. Surinder Singh Kanda v. Govt. of Malaya, (1962) MLJ 169. 32 AIR 1988 SC 2060: 1988 Supp SCC 674. Also see, Sahadat Hossain v. Sub-Divisional Controller of F.&S., Katwa, AIR 1988 Cal 44 [LNIND 1987 CAL 21] [LNIND 1987 CAL 21] [LNIND 1987 CAL 21]; Surendra Nath v. D.D.A., AIR 1988 Del 276 [LNIND 1988 DEL 45] [LNIND 1988 DEL 45] [LNIND 1988 DEL 45]. 33 Dewan Singh v. State of Haryana, AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]:

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1976 (2) LLJ 321: (1976) 3 SCC 638 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]. 34 AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772]; JAIN, Cases, Chapter IX, Sec. B, 662. Also see, Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374; Syndicate Bank v. Venkatesh Gururao Kurati, (2006) 3 SCC 150 [LNIND 2006 SC 60] [LNIND 2006 SC 60] [LNIND 2006 SC 60], 157-59 (paras 13-18); State of T.N. v. Thiru K.V. Perumal, (1996) 5 SCC 474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND 1996 SC 1064]; State of U.P. v. Harendra Arora, (2001) 6 SCC 392 [LNIND 2001 SC 1155] [LNIND 2001 SC 1155]: AIR 2001 SC 2319 [LNIND 2001 SC 1155] [LNIND 2001 SC 1155]; State of U.P. v. Ramesh Chandra Mangalik, AIR 2002 SC 1241 [LNIND 2002 SC 167] [LNIND 2002 SC 167] [LNIND 2002 SC 167]: (2002) 3 SCC 443. 35 Khagendra Nath v. Calcutta University, AIR 1974 Cal 187 [LNIND 1974 CAL 33] [LNIND 1974 CAL 33] [LNIND 1974 CAL 33]. 36 Dhakeswari Cotton Mills v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 (1) SCR 941. See also Appropriate Authority & CIT v. Varshaben Bharatbhai Shah, (2001) 4 SCC 1 [LNIND 2001 SC 661] [LNIND 2001 SC 661] [LNIND 2001 SC 661],8 (paras 12 and 13); Union of India v. Chiranji Estate (P) Ltd., (2001) 6 SCC 501 [LNIND 2001 SC 1630] [LNIND 2001 SC 1630] [LNIND 2001 SC 1630], 502 (para1): AIR 2001 SC 3189 [LNIND 2001 SC 1630] [LNIND 2001 SC 1630] [LNIND 2001 SC 1630]; Sona Builders v. Union of India, (2001) 10 SCC 280, 282 (para 4); non-supply of copies of document and failure to prove no prejudice caused to delinquent, State of U.P. v. Shatrughan Lal, (1998) 6 SCC 651 [LNIND 1998 SC 1475] [LNIND 1998 SC 1475] [LNIND 1998 SC 1475]: AIR 1998 SC 3038 [LNIND 1998 SC 1475] [LNIND 1998 SC 1475] [LNIND 1998 SC 1475]. 37 Brajlal Manilal & Co. v. U.O.I., AIR 1964 SC 1643 [LNIND 1964 SC 388] [LNIND 1964 SC 388] [LNIND 1964 SC 388]: 1964 (7) SCR 97. 38 Mahadayal Prem Chandra v. C.T.O., AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1959 SCR 551. 39 Dulichand Kheria v. Collector of Customs, AIR 1945 Cal 156. In Sovachand Mulchand v. C.C.E., AIR 1968 Cal 174 [LNIND 1966 CAL 202] [LNIND 1966 CAL 202] [LNIND 1966 CAL 202]., an order of the collector imposing penalty was quashed as the person affected was only informed of the collector's conclusion of facts but not the facts on which it was based. 40 Bishambhar Nath v. State of U.P., AIR. 1966 SC 573: 1966 (2) SCR 158 [LNIND 1965 SC 256] [LNIND 1965 SC 256] [LNIND 1965 SC 256]. 41 Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374. Also see, Prem Prakash v. Punjab University, AIR 1972 SC 1408: (1973) 3 SCC 424. 42 AIR 1988 SC 18 [LNIND 1987 SC 708] [LNIND 1987 SC 708] [LNIND 1987 SC 708]: 1987 Supp SCC 671. Also see, JAIN, Cases, Chapter IX, Sec. B, 674. 43 R. v. Birmingham City Justice, (1970) 3 All ER 945. 44 Kumar Keshridas v. Divisional Engineer Telephones, AIR 1984 MP 158 [LNIND 1984 MP 37] [LNIND 1984 MP 37] [LNIND 1984 MP 37]. 45 AIR 1988 SC 2060: JT 1988 (3) SC 630. 46 Also see: Bombay Oil Industries Pvt. Ltd. v. U.O.I., AIR 1984 SC 160 [LNIND 1983 SC 334] [LNIND 1983 SC 334] [LNIND 1983 SC 334]: (1984) 1 SCC 141; Ketan Shiv Kumar v. Gujarat H.S. Education Board, AIR 1984 Guj 47 [LNIND 1983 GUJ 203] [LNIND 1983 GUJ 203] [LNIND 1983 GUJ 203]; Gopal Singh v. State of Bihar, AIR 1984 Pat 294; Ramsingh Chauhan v. State of M.P., AIR 1984 MP 151; Murari Mohan v. Secretary, Govt. of India, AIR 1985 SC 931 [LNIND 1985 SC 119] [LNIND 1985 SC 119] [LNIND 1985 SC 119]: 1985 (2) LLJ 176: (1985) 3 SCC 120 [LNIND 1985 SC 119] [LNIND 1985 SC 119] [LNIND 1985 SC 119]. 47 Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374. 48 City Corner v. P.A. to Collector, AIR 1976 SC 143 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369]: (1976) 1 SCC 124. 49 Dhakeswari Cotton Mills v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 (1) SCR 941; Madugula Papayya v. Province of Madras, (1956) STC 180 (Mad). But see, M. Appukuty v. State of Kerala, (1963) 14 STC 489 (Ker). 50 New Prakash Tr. Co. v. New S.T. Co., AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132]: 1957 (1) LLJ 344. 51 AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]: 1960 SCJ 235. 52 Mahachandra Prasad Singh (Dr.) v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747 [LNIND 2004 SC 1100] [LNIND 2004 SC 1100] [LNIND 2004 SC 1100], 763-64 (para 19). See also Secretary of Govt. v. A.C.J. Britto, (1997) 3 SCC 387 [LNIND 1996 SC 2179] [LNIND 1996 SC 2179] [LNIND 1996 SC 2179], 394 (para 12): AIR 1997 SC 1393 [LNIND 1996 SC

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2179] [LNIND 1996 SC 2179] [LNIND 1996 SC 2179].

(a) Disclosure of the Preliminary Inquiry Report At times, before the decision-making authority formally initiates proceedings against a person, a preliminary enquiry may be conducted into the matter by some other officer, and then the decision-making authority takes the enquiry report into consideration and reaches its decision. There arises the debatable question of disclosure of the preliminary inquiry report to the affected party before asking him formally to explain the charges against him. What is being discussed here is the question of disclosure of a pre-hearing enquiry report.53 By and large the attitude of the Courts is that the contents of the preliminary inquiry report ought to be disclosed to the affected person as this report is being taken into consideration by the decision-making authority. For example in Venkata,54 the facts were as follows: a student got admission in the M.B.B.S. Course on the basis of a caste certificate issued by the local revenue authority. The College principal referred the question of genuineness of the certificate to the Director of Tribal Welfare (DTW). After conducting an investigation, he sent his report to the principal. He issued a show-cause notice to the concerned student mentioning all the material facts collected by the DTW in his report. A copy of the report was sent to the student along with the show-cause notice. The student objected that the DTW held the investigation behind his back. The High Court ruled that the procedure adopted was alright as it was open to the competent authority to collect the evidence but before relying thereon, the evidence so collected should be supplied to the affected party and this was done in this case. In Shadi Lal v. State of Punjab, 55 a minor punishment was awarded to the appellant. The procedure followed for the purpose was as follows: first, a show-cause notice was given to him; thereafter, a personal hearing was held before a deputy secretary to the government. He however felt that some local inquiry was necessary by the treasury officer. The report of the inquiry officer was not shown to the appellant, but the above mentioned action was taken against him. He contended that consideration of the inquiry report without giving him a copy thereof had prejudiced him and natural justice was violated as he could not make his representation against the findings contained in the report. The Supreme Court rejected the contention. The local inquiry was meant only to check up the representation made by the appellant with the records. The report added nothing to the allegations made in the charge-sheet. It merely set out the evidence in support of the allegations. The appellant was not prejudiced in any way by the enquiry report having been taken into consideration. In T.V.R. Radhakrishnan v. State of Tamil Nadu,56 the collector and the director of rural development submitted reports to the government about the working of a panchayat. The government then gave notice under the statute concerned calling upon the panchayat to show cause why it should not be dissolved. The panchayat was then dissolved. The order was challenged on the ground that the copies of the reports of the collector and the director had not been given to the petitioners. Rejecting the argument, the Supreme Court held that natural justice was not violated in the instant case as the substance of the reports had been given in the form of the grounds in the show cause notice issued to the panchayat. The notice contained the grounds which were questions of fact and the reports in question had nothing more to do with any of the grounds. The Court, however, ruled that when the summary of documents on which the show cause notice was based is mentioned in the form of the grounds therein, it is the duty of the adjudicating authority to mention this fact if the individual asks for the documents. Failure to do so results in violation of natural justice. This pronouncement is unsatisfactory. The decision-making authority had relied on the two reports in question for arriving at its decision. No other inquiry was held into the allegations against the panchayat concerned. The reports could contain not only conclusions of fact but also evidence to support the conclusions, and fairness demands that the party be apprised of the evidence against him. It is suggested that only if the deciding authority has made no reference to the report in question, but makes a de novo inquiry and then arrives at its own conclusions, only then the earlier report need not be given to the party concerned. But if the preliminary inquiry report is being depended upon to arrive at findings against the person concerned, then he should be given its copy. In Krishna Chandra v. U.O.I., 57 there was first a preliminary departmental inquiry into the charges against the petitioner. Thereafter, a formal inquiry was instituted against him. The report of the departmental inquiry was not given to the petitioner. Holding that there was no infirmity in the procedure, the Supreme Court ruled that the petitioner was not entitled to get a copy of the report when neither the inquiry officer nor the

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punishing authority relied on this report for arriving at his conclusions. The primary purpose of the preliminary report was to find out if there were prima facie grounds for initiating formal disciplinary proceedings against the petitioner. If the enquiry officer wanted to rely on the report for his conclusions then a copy of the same must be given to the person concerned. The view adopted by the Supreme Court seems to be quite fair and rational. Any document relied upon by the enquiry officer must be disclosed to the concerned party. If the hearing is being held de novo, without any reference to any preliminary enquiry report, then the report need not be disclosed to the party affected. But, suppose the preliminary report is given to the enquiry officer but not to the party concerned. In such a situation, failure to give a copy of the report to the concerned party amounts to denial of fair hearing. Reference may be made in this connection to a Privy Council case from Malaysia, B. Surinder Singh Kanda v. Government of Malaya .58 The Commissioner of Police first appointed a board of inquiry against Kanda, a police officer, to make a preliminary enquiry against him. After considering the board's report, the Commissioner appointed an adjudicating officer to formally enquire into the charges against Kanda. Thereafter, he was dismissed from police service. The adjudicating officer was given a copy of the report of the board of inquiry which contained a severe condemnation of Kanda, but Kanda was not given a copy thereof, and he thus had no opportunity of correcting or contradicting the report. The Privy Council held that the proceedings of the adjudicating officer were vitiated and that Kanda had been dismissed without being given a reasonable opportunity of being heard. It was not correct to let the adjudicating officer have a copy of the report without giving the same to Kanda, and so the order of dismissal was held to be void. Lord DENNING delivering the opinion of the Privy Council observed: "If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.,.. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."

The principle enunciated by the Privy Council is somewhat broader than what the Supreme Court has ruled above, for here merely because a copy of the preliminary report was given to the adjudicating authority, irrespective of whether he relied thereon or not, the concerned party became entitled to a copy thereof as well. Also, it may be noted that the Privy Council emphasized that it was not necessary to prove any prejudice to the defendant at the inquiry because of withholding of material from him. The risk of prejudice is enough. Whereas the Supreme Court in India, before giving relief in such situations does raise the question whether any prejudice was caused to the concerned party by the non-supply to him of the material in question.59 In State of U.P. v. Mohd. Sharif, 60 before initiating formal disciplinary proceedings against a police constable, a preliminary enquiry was held in which witnesses were examined. Copies of their statements were not furnished to the delinquent employee, nor was the preliminary inquiry report shown to him. The proceedings were quashed by the Supreme Court. Here, presumably, the enquiry officer was relying on the preliminary enquiry report. In Suresh v. State, 61 charges were framed against a municipal corporation after a preliminary inquiry by the commissioner. After an explanation of the corporation was received, no further inquiry was held but the corporation was superseded. The preliminary inquiry report submitted by the commissioner was not shown to the corporation. The Court held that this report constituted an important material which was taken into account by the government in taking action against the corporation. Had there been a second inquiry after receipt of the explanation of the corporation, and the preliminary inquiry report was not considered in the second inquiry, or in taking the final action, withholding of the preliminary inquiry report might not result in infraction of the rules of natural justice. But when no fresh inquiry was held after the show cause notice, and the explanation was bound to be judged in the light of the preliminary inquiry report on which the charges were based, this report would be an important material to be taken into account in making the final order and its non-disclosure would necessarily result in denial of adequate opportunity to show cause.

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In Chingleput Bottlers v. Majestic Bottling Co. 62 an order refusing to grant a licence for manufacture and supply of bottled liquor was challenged by Chingleput Bottlers on the ground inter alia of denial of natural justice. The main ground was that the collector had conducted a secret enquiry against Chingleput and on the basis of the collector's report, the commissioner refused to give them the licence, but a copy of the collector's report was not given to them. Rejecting the contention, the Supreme Court pointed out that it was quite proper for the commissioner "to make secret and discreet inquiries from confidential sources" and there was no duty cast on the commissioner to disclose to Chingleput the sources of adverse information or to give them the opportunity to confront the informants. "Rules of fairplay only enjoin that Messrs Chingleput Bottlers should know the case against them." This apparently they did. The raison d'eter of this ruling was that no citizen has a fundamental right to carry on any trade in liquor. The attitude of the Court was dictated by its view that a liquor licence is a matter of privilege. Comments have already been made earlier on this aspect of the matter.63 As regards non-disclosure of a secret report to the affected party, it seems to be against the first principles of fairness, as laid down in the Kanda case,64 for there is no doubt that the decision to refuse licence to the party concerned was based on the report. The only justification for this may be in a situation like that in Benaim,65i.e. when there is danger to the life and property of the persons testifying against the person concerned. It does not appear that there was any such circumstance present in the case. Even in Benaim, the Court did insist that the gist of the evidence against the party must be communicated to the concerned party keeping the sources of information confidential.. It seems difficult to appreciate as to why, barring special circumstances referred to above, so long as liquor trade is legally sanctioned and regulated, different norms of fairness ought to be applied to liquor licensing.66 Liquor trade could not be worse than gambling which was the subject-matter in Benaim. The judicial attitude adopted in cases of liquor licensing is in contrast with the attitude adopted in several cases mentioned earlier67 in which orders passed on confidential materials have been quashed.

53 Also see, infra, under Institutional Decision. 54 B. Venkta Rao v. Principal, Andhra Medical College, AIR 1989 AP 159 [LNIND 1988 AP 288] [LNIND 1988 AP 288] [LNIND 1988 AP 288]. 55 AIR 1973 SC 1124 [LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64]: 1973 (1) LLJ 435: (1973) 1 SCC 680 [LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64]. 56 AIR 1974 SC 1862: (1974) 2 SCC 496. Also see, Suresh v. State, AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND 1969 MP 9] [LNIND 1969 MP 9]. 57 AIR 1974 SC 1589: (1974) 4 SCC 374. Also Sohan Lal v. State of Punjab, AIR 1983 P&H 62. 58 (1962) MLJ 169. See also Hiran Mayee Bhattacharya v. Secretary's S.M. School for Girls, (2002) 10 SCC 293, 294 (para 4). 59 See, for instance, Kashinath Dikshita v. U.O.I., AIR 1986 SC 2118 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199], 2120: (1986) 3 SCC 229 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]: 1986 (2) LLJ 468 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]. 60 AIR 1982 SC 937 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13]: 1982 (2) LLJ 180: (1982) 2 SCC 376 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13]. 61 AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND 1969 MP 9] [LNIND 1969 MP 9]. Also see, Radhakrishnan v. State of Tamil Nadu, AIR 1974 SC 1862: (1974) 2 SCC 496. 62 AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79]: (1984) 3 SCC 258; JAIN, Cases, 666. Also see, Bishnu Ram Borah v. Parag Saikia, AIR 1984 SC 898 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC 337]: (1984) 2 SCC 488. 63 supra, Chapter IX. To the same effect is the ruling of the Court in Bishnu Ram Borah v. Parag Saikia, AIR 1984 SC 498: (1984) 2 SCC 488; JAIN, Cases, 665. 64 See, B. Surinder Singh Kanda v. Government of Malaya, (1962) MLJ 169. 65 R. v. Gaming Board ex p. Benaim, (1970) 2 WLR 1009. 66 On the point of disclosure of the inquiry report, also see, infra, this Chapter. 67 See under heading: 'Disclosure of Materials to the Party', supra, this chapter.

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(b) Disclosure of the report of the expert The name of a candidate for the post of Assistant Personal Officer in Railways was dropped from the selected panel though she stood first in the written test, allegedly for using unfair means in the written examination which was substantiated by the opinion of the Forensic Department but a copy of the said report was not supplied to her. The Apex Court set aside the order of dropping her name from the selected panel and remanded the matter to the original authority, directing the department, if it so desired, to proceed further in the matter after supplying her all the relevant documents.68 (c) Disclosure of evidence to the contrary In Election Commission of India v. Manmohan Singh (Dr.), the Apex Court held that where the statement of the holder of a declared office for the purpose of registration of his name in electoral roll of a certain constituency was that, but for his holding such office, he would have been ordinarily the resident in a specified place, such a statement could be questioned only when the Electoral Registration Officer had "evidence to the contrary", the substance of which he had to inform the holder of the office so as to enable him to rebut it in the course of inquiry and no inquiry could be initiated in the absence of such an evidence.69 4. HEARING The next stage in the adjudicative process is the giving of an opportunity to the concerned party to rebut the allegations made against him and of presenting his own case. It is the requirement of natural justice that an adjudicatory body cannot make a decision adverse to an individual without giving him an effective opportunity of meeting any allegations against him and presenting his own case. As Lord MORRIS emphasized in Ridge v. Baldwin, 70 "the essential requirements of natural justice at least include that before some one is condemned he is to have an opportunity of defending himself." A statutory provision authorised a tribunal to inquire into the conduct of any servant of a panchayat and, after making such inquiry as it may deem fit, pass orders imposing a punishment. The Supreme Court ruled that the principles of natural justice were ingrained in the statutory provision in question and, therefore, the employee must have been given a full, fair and reasonable opportunity to meet the charges against him.71 There is no fixed form of hearing procedure which has to be followed in various cases. It varies from situation to situation. It is ultimately for the Court to decide whether the hearing procedure adopted in a specific case accords with natural justice or not. Thus, in S.L. Kapoor v. Jagmohan, 72 preceding the order of supersession of the New Delhi Municipal Committee being passed by the Lt. Governor of Delhi, there was some correspondence between the Government of India and the municipal committee. The Supreme Court held that for the following reasons this could not be construed as giving hearing to the municipal committee, viz. (i) (ii) (iii) (iv)

The correspondence in question had passed between the committee and the Government of India, whereas the action in question against the municipality was taken by the Delhi Administration and not by the Government of India. The Delhi Administration never gave any opportunity to the committee to make any representation about this matter. None of the grounds on which the action by way of supersession was taken had emerged in the said correspondence. No hint was ever given in this correspondence that the committee's supersession was being contemplated.

All these circumstances prove that the committee was never put on notice of any proposed action by the Delhi Administration. Information furnished by the committee in the course of an exploratory or fact-finding expedition could not be regarded as an answer to an action-inspired notice. The Court insisted that the requirements of natural justice are met only if opportunity to represent is given in view of the proposed

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action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, "if it is furnished in a casual way or for some other purpose." What is important is that person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. "In Alfred Thangarajah Jurayappah v. W.J. Fernando, 73 the Municipal Council of Jaffna was dissolved and superseded by the Governor-General on the ground that it appeared to him that the Council was not competent to perform the duties imposed upon it, The Mayor sought to question the dissolution and supersession of the Council in the Supreme Court of Ceylon, on the ground that there was a failure to observe the principle of natural justice. One of the questions which arose for consideration was whether, as a matter of interpretation natural justice was not excluded from action under Section 277of the Municipal Ordinance under which provision the dissolution and supersession had been made. The argument was that words such as "where it appears to......." or "if it appears to the satisfaction of......" or "if the .....................considers it expedient that................" or "if the..............is satisfied that........" stood by themselves without other words or circumstances or qualifications, a duty to act judicially was excluded, and so, was natural justice. The argument was accepted by the Supreme Court of Ceylon but the Privy Council disagreed with the approach. They observed that there were three matters which should always be borne in mind when considering whether the principle audi alteram partem should be applied or not. The three matters were: "First, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. It is only upon a consideration of all these matters that the question of the application of the principle can properly be determined." The Privy Council then proceeded to examine the facts of the case upon those considerations and said:' "As to the first matter if cannot be doubted that the Council of Jaffina was by statute a public corporation entrusted like all other Municipal Councils with the administration of a large area and the discharge of important duties. No one would consider that its activities should be lightly interfered with.........the legislature has enacted a statute setting up municipal authorities with a considerable measure of independence from the Central Government within defined local areas and fields of Government. No Minister should have the right to dissolve such an authority without allowing it the right to be heard upon that matter unless the statute is so clear that it is plain it has no right of self-defence. Upon the second matter it is clear that the Minister can dissolve the council on one of the three grounds that it (a) is not competent to perform any duty or duties imposed upon it (for brevity their Lordships will refer to this head as incompetency), or (b) persistently makes default in the performance of any duty or duties imposed upon it or (c) persistently refuses or neglects to comply with any provision of law........It seems clear to their Lordships that it is a most serious charge to allege that the council, entrusted with these very important duties, persistently makes default in the performance of any duty or duties imposed upon it. No authority is required to support the view that in such circumstances it is plain and obvious that the principle audi alteram partem must apply. Equally, it is clear that if a council is alleged persistently to refuse or neglect to comply with a provision of law it must be entitled (as a matter of the most elementary justice) to be heard in its defence. Again this proposition requires no authority to support it. If, therefore, it is clear that in two of the three cases, the Minister must act judicially, then it seems to their Lordships, looking at the section as a whole, that it is not possible to single out for different treatment the third case, namely, incompetence............. The third matter can be dealt with quite shortly. The sanction which the Minister can impose and indeed, if he is satisfied of the necessary premise, must impose upon the erring council is as complete as could be imagined; it involves the dissolution of the council and therefore the confiscation of all its properties. It was at one moment faintly argued that the council was a trustee and that is was not therefore being deprived of any of its property but this argument (soon abandoned) depended upon a complete misconception of the law of corporation... For the purposes of the application of the principle it seems to their Lordships that this must apply equally to a statutory body having statutory powers, authorities and duties just as it does to an individual. Accordingly on this ground too the Minister should have observed the principle.

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For these reasons their Lordships have no doubt that in the circumstances of this case the Minister should have observed the principle audi alteram partem. Sugathadasa v. Jayasinghe,74 was wrongly decided."75

68 K. Vijayalakshmi v. Union of India, (1998) 4 SCC 37, 39 (paras 6 and 7): AIR 1998 SC 1801 [LNIND 1998 SC 357] [LNIND 1998 SC 357] [LNIND 1998 SC 357]. 69 (2000) 1 SCC 591 [LNIND 1999 SC 1076] [LNIND 1999 SC 1076] [LNIND 1999 SC 1076], 598 (para 15): AIR 2000 SC 231 [LNIND 1999 SC 1076] [LNIND 1999 SC 1076] [LNIND 1999 SC 1076]. 70 (1964) AC 40. 71 Dewan Singh v. State of Haryana, AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]: (1976) 3 SCC 638: 1976 (2) LLJ 321 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]. 72 See, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379; JAIN, Cases, 536. 73 (1967) 2 AC 337. 74 (1958) 59 NLR 457. 75 As cited in S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], 140 (para 9): (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391].

Opportunity considered necessary--illustrative cases.--The Section 65of the Maharashtra Civil Services (Pension) Rules, 1982 provided for compulsory retirement of a Government servant in public interest after he had completed 30 years of service. In the instant case a Government servant was retired compulsorily on the basis of adverse remarks against him. The Apex Court held that it would be salutary that before writing adverse remarks sufficient opportunity in writing informing the Government servant concerned of the deficiency, the officer has noticed for improvement and inspite of the opportunity given if the employee does not improve, then it would be an obvious fact and would form material basis in support of the adverse remarks. The Supreme Court further observed that is should also be mentioned that he had been given prior opportunity in writing for improvement and yet the same was not awailed of so that it would form part of the record. The Court held that the power exercised in the instant case was illegal.76 As to the object and method of recording character roll entries, the Apex Court observed77 as under: The object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j)enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. If should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.

The Chandpur Municipality (in Bijnor District of U.P.) revised the property tax against which representations made to the Govt. by the residents of the municipality in consequence of which the Govt. called for a report from the D.M who asked an SDM to submit a report. On his report the Govt. quashed the revision of the

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property tax holding it to be unfair. Section 137of the U.P. Municipalities Act 2 of 1916 confers upon the Govt. a power to rectify or modify the assessment made by the Municipality if the same is contrary to public interest or unfair, of course after considering the explanation of the concerned municipality which in this case was not called for from the municipality. Though if was contended that the concerned municipality did not question the proceedings before the Govt. nor did it file a wit petition to quash the Govt. order, yet the Supreme Court set aside the order as the same was passed without calling for the explanation of the municipality. It directed the representations of the residents of the locality to be considered afresh in accordance with Section 137.78 The Supreme Court held that under Section 54of the Bombay Town Planning Act, 1955 read with Rule 27of the Bombay Town Planning Rules, 1955 when any occupant is sought to be evicted in the light of the sanctioned Town Planning Scheme, the principles of natural justice have to be observed and after hearing the occupant concerned a speaking order has to be passed. In the instant case, the occupant was given only notice calling upon him to vacate the land within seven days, failing which he would be removed from the land and the superstructure thereon by use of force without affording him any opportunity of show cause. Hence the notice was quashed.79 Upholding the vires of Section 54of the Bombay Town Planning Act, 1955 read with the Rule 27of the Bombay Town Planning Rules 1955, Tulzapurkar, J., speaking for the two-member Bench had made the following observations:80 ".....the power conferred upon the Local Authority is a quasi-judicial power which implies that the same has to be exercised after observing the principles of natural justice, that is to say, the decision that the occupants are not entitled to occupy the plots in their occupation has to be arrived at after hearing such occupants and that too by passing a speaking order which implies giving of reasons and that ensures the application of mind to only germane or relevant material on the record eschewing extraneous and irrelevant. Moreover any order of summary eviction based on any extraneous, non-germane, irrelevant or mala fide considerations would be subject to the writ jurisdiction of Court."

The powers and functions of the Special Officer under Section 7-Aof the Electricity Act, 1910 are quasi-judicial and are the same as vested in a Civil Court, hence he cannot determine the amount of compensation for acquisition of undertaking of a licensee merely on the basis of the opinion rendered by the Legal Remembrancer to the Govt., it had to be done in the presence of the licensee and an opportunity should be given to him to meet such an opinion.81 When provision for appeal by way of review has been provided by the statutory instructions issued by the Punjab State Electricity Board, and the parties are directed to avail of the remedy, the authorities are enjoined to consider all the objections raised by the electricity consumer and to pass, after consideration, the reasoned order in that behalf, so that the aggrieved consumer, if not satisfied with the order passed by the Board/Appellate Authority, can avail of the writ remedy available under Art. 226of the Constitution. Therefore, by necessary implication, the appropriate competent authority should hear the parties, consider their objections and pass the reasoned order, either accepting or negativing the claim. Of course, it is not like of the Civil Court.82 Rule 23 (vi)(E)of the Hindustan Paper Corporation Conduct, Discipline and Appeal Rules provided for the loss of lien of an employee in case of his unauthorised absence or overstaying his leave for more than the specified number of consecutive days. It was contended that the Rule is arbitrary, unreasonable or ultra vires Art. 14of the Constitution. The Apex Court observed that it could not be said as contended as the said rule is subject to the principles of natural justice and, hence, before taking action under the rule, an opportunity should be given to the employee to show cause against the action proposed against him and, if the cause shown by him is good and acceptable, it follows no action in the terms of the rule. However, no full-fledged inquiry would be necessary.83 Tenders were invited for country-made liquor in various districts of U.P. and initially one of the tenderers was allotted, on the basis of tenders, the districts of Saharanpur and Hardwar. Subsequently, the allotment was revoked and Hardwar was allotted to another person without affording the former allottee an opportunity which was held to be violative of principle of natural justice. The Apex Court directed the Govt. to issue notice to the former allottee as well as the other one, consider their objections and pass appropriate speaking order in that behalf in accordance with Rules.84 The Officers' Association of the member of the Civil Services of Sikkim State made representation to the Government that its members were not inducted in the Civil Services while the others were. A Committee was formed to consider the representation giving a personal hearing to the Association. The officers inducted earlier objected that they could not get a hearing as neither the terms of reference of the Committee were gazetted nor were they put to notice about the Constitution of the Committee. The Apex Court was of the view that the Committee, having decided to give hearing to the Association, should have given a hearing to the objectors also as they were vitally interested.85 Bias was alleged against the Head of the Committee appointed to consider the question of

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seniority of the two batches of the recruits of the Civil Services of the Sikkim State contending that the Committee should not have determined the seniority of the Head's wife who was one of the recruits but the Head was not impleaded in the SLP thus denying him an opportunity to deny the allegation against him. The Apex Court did not examine the contention. Besides, it was held that the matter should have been raised as soon as the Committee was constituted.86 Where the employees of one department were transferred to the other department where their past services were to be counted for the purpose of refixing their seniority, the Apex Court held that, while so refixing their seniority, prior opportunity should be given to the affected persons, if any.87 In State of Bihar v. Subhash Singh,88 the Apex Court observed that, if the High Court feels it necessary to impose costs personally against the officers for non-compliance of its orders, the Court is required to enquire after giving notice and reasonable opportunity to the officer who could not be impleaded earlier or was not on record, to explain the reasons for non-compliance of the order or decision taken to file the proceedings (in the instant case delay in filing an appeal or revision). When a grievance is made to the Central Govt. by the aggrieved parties concerned who submit that the scales of rates of handling charges for rendering services to the shippers by the Board of Trustees of a port, which are prevalent and operative, require modification or cancellation in public interest, as they are unreasonable, excessive or wholly or partly lack the back-up of quid pro quo and, if the Central Govt. gets convinced, it would be its statutory obligation to direct the Board concerned accordingly and it would be equally the duty of the Board to carry out such suggested modifications or cancellation as directed by the Govt. At that stage if the objections of the aggrieved parties are directed by the Central Govt. to be considered in public interest, no fault can be found with a direction giving opportunity to the aggrieved parties.89 In Prince Khadi Woollen Handloom Production Cooperative Industrial Society Ltd. v. Collector of Central Excise,90 the Revenue contended before the Tribunal that certain factories were not entitled to the benefit of a certain exemption under a certain notification as they did not satisfy the condition of being registered as handloom cooperative societies or organisations set up or approved by the Govt. for the purpose of the development of handlooms which was rejected; but it was held in favour of the Revenue that the factories had not shown that they were producing woollen fabrics in "a factory owned by" each them but it did not appear that at any stage of the proceedings they were required to show that the factories in which the woollen fabrics were produced, were owned by them. The order of the Tribunal was set aside and it was directed that the Revenue must give them a notice to show cause in this regard and the matter be processed from that stage. The preamble to the Project Imports Regulations, 1986clearly carves out as exception as regards "Things done or omitted to be done before such supersession." These 1986 Regulations do not contain any provision for superseding or cancelling any registration of the contracts allowed under the Project Imports (Registration of Contracts) Regulations, 1965. Therefore, the authority empowered to register the contract could not cancel the registration already done, more so without affording the party any opportunity of hearing.91 If the Municipal Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the property is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. In the instant case, the action sought to be taken by the corporation was held to be not violative of the principle of the natural justice.92 An Industrial Corporation filed, for clearance for home consumption, seven bills of entry purporting to relate to polyethylene scrap. By reason of intelligence report received that serviceable material was likely to be cleared as scrap, the goods covered by the seventh bill of entry were examined by the customs authorities. It was found that the imported material consisted of serviceable material which were seized. At this stage, it was offered bythe importer to get the goods mutilated at its own expense which was rejected by the Collector of Customs and he passed the consequential order of confiscation and penalty. In appeal, the customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) accepted the importer's offer without examining the merits of the case and the propriety of the Collector's order, which was held to be improper by the Supreme Court. The matter was remanded to CEGAT for disposal on merits after hearing the importer-assessee.93 One of the Rules of the U.P. State Leather Development and Marketing Corporation Limited General Rules, 1981 provided that an employee may discharged from service by the competent authority on three months' notice or by giving three months' salary in lieu thereof and the competent authority on getting a recommendation from the appointing authority for the discharge 'may' give an opportunity to the employee concerned for explaining himself before coming to a decision. The Apex Court observed that the word "may" in the context has to be construed as

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'shall' so that the principles of natural justice are complied with when the competent authority considers the question of discharge of an employee.94 An owner need not be given any notice of the Government intention of withdrawing from acquisition but in case of a company for whose benefit acquisition was to be made, opportunity has to be given to it to show cause against any order which the Government proposes to make withdrawing from acquisition.95 A housing co-operative society allotted flats to its members on payment-cum-seniority basis. The general body decided that the members who defaulted in payment of dues, should be accommodated in the record phase of construction and not in the first phase which was held to be proper. However, it was held that before treating any person to have defaulted, it was necessary to record that a notice preceding such a decision is actually served on such a member or there is deemed service under some applicable rule depending on the facts. Otherwise, his claim for phase I flats could not be defeated.96 Clause 17(g) of the Certified Standing Orders provided for aumatic termination of an employee of UPTRON on the ground of unauthorised absence. The Apex Court held that such a discretion could not be exercised by the management capriciously and the employee against whom action was to be taken must be given an opportunity of hearing. Principles of natural justice, which have to be read in the offending clause, must be complied with unless the employee is directly related to "production" in a factory or industrial establishment.1 The Supreme Court was of the opinion that, even though Section 3of the Haryana Public Moneys (Recovery of Dues) Act 24 of 1979 does not expressly provide for an opportunity being given to the alleged defaulter to explain as to whether any amount is due or not but in view of the nature of the said provision, the principles of natural justice must be read into it. The requirement of determination of the sum due by the Managing Director of the Financial Corporation must be regarded as providing for the Managing Director hearing the alleged defaulter before coming to the conclusion as to what is the sum due. The very use of the word "determine" and "sum due" in section 3implies that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director. It is not a mere claim of the Corporation which is forwarded to the Collector for realisation, but it is the "sum due" as determined by the Managing Director which alone is recoverable. As already observed, this determination cannot be done without notice to the alleged defaulter.2 A recognised educational institution applied for approval of the staff appointed by it, but without waiting for the disposal of the application for approval, the Head of the Institution filed a writ petition before the High Court which directed for the approval for the staff to be granted. The Apex Court held that the order of the High Court directing for granting approval without the statutory authority applying its mind was not sustainable. It was ordered that the statutories concerned should take a decision on the question of approval sought for within four months by making inspection as they deem fit, after giving opportunity to the management.3 The Supreme Court has held that, where serious allegations of mala fides have been raised in a writ petition, it is not appropriate for the High Court to dismiss the petition by a detailed order in limine and without issuing notice to the person against whom the allegations have been made though he has been impleaded. It was held to be appropriate to give an opportunity to that person to file an affidavit and then to decide the case on merits.4 In an Assembly Constituency of the Punjab Vidhan Sabha, candidates more than one filed their nomination papers for the Assembly election mentioning themselves to be the main candidate of the same recognised party. The Returning Officer raised suo motu objection as to the validity of such nomination papers. At the time of scrutiny one of the candidates gave a written application to the Returning Officer stating that he was the official candidate of the said party and requested him to give him twenty four hours time to meet his said objection. No other candidate of that party objected to that candidate's claim. In such circumstances, it was held that it was obligatory for the Returning Officer to allow that candidate to rebut his suo motu objection and refusal to grant him opportunity and rejection of his nomination paper on the basis of his suo motu objection was improper, illegal and arbitrary.5 In an Assembly election two candidates claimed the reserved symbol of the same political party 'Janta Dal' and the Returning Officer, having received no communication as to who the official candidate was till the date fixed for withdrawal treated both of them as independent candidates and allotted them free symbols which was challenged by both the candidates before the Election Commission which, considering the material on record withheld the impugned order; but on receipt of a representation from the President of the Janta Dal naming one of the two as the official candidate and that the other candidate had produced Form B fraudulently, the Election Commission issued directions, without issuing notice to the other candidate, that he be treated as an official candidate and the party's reserved symbol be allotted to him. That candidate won the election which was challenged by the other candidate inter alia alleging illegal allotment of the reserved symbolto the returned candidate. The Supreme Court observed that the Party President had made a serious charge

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against the other candidate and the Election Commission was exercising its quasi-judicial powers and was obliged to follow the principles of natural justice. The revisional order was 'reviewed' by the Election Commission behind the back of the other candidate, without putting him on notice or giving him any opportunity to have his say which showed clearly a breach of fair play in the action rendering the subsequent order of the Election Commission illegal and without jurisdiction.6 In Gulzar Singh v. Sub-Divisional Magistrate, 7 the Supreme Court held that issuance of a Scheduled Caste certificate accrues certain rights to the holder, hence if this certificate is cancelled on the basis of some enquiry conducted by the department, it is incumbent on the department, keeping in view the principles of natural justice, to issue a show-cause notice to the holder requiring him to explain as to why his certificate should not be cancelled and if there are statements of other persons recorded in that respect, then fairness would require that the said statements be put to the holder before a final decision is taken8. An accused filed an application before the High Court for being released on bail while the matter was still pending before the trial Court but it was rejected. However, in the order-sheet of the proceeding it was indicated that he had been released on bail and was actually released. Later on, the Court came to know of the wrong order having been incorporated and recalled the earlier order and directed the Trial Judge to bring the accused into custody but without affording an opportunity of hearing to the accused.9 The Apex Court quashed the recall order and observed that it would be open to the High Court to make necessary rectification/correction by giving an opportunity of hearing to the accused. While confirming the finding of guilt, the Bar Council of India may vary the punishment awarded to an advocate by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the advocate, the proviso mandates the exercise of such power to be performed only after giving the advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should be heard.10 In O.K. Bhardwaj v. Union of India, 11 the Supreme Court held that even in the case of a minor penalty, an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an inquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with. Once it is recorded in the service book of an employee that he disobeyed the orders of his superior, it cannot be said that no stigma is attached to the order of discharge and once there is stigma, an opportunity has to be given before passing any order. Even where an order of discharge looks innocuous; but on close scrutiny, by booking behind the curtain and if any material exists of misconduct and which is the foundation of passing of the order of discharge, or such could be reasonably inferred, then any consequential order, event of discharge would be contrued as stigmatic.12 Inviting objections before issuance of notification to amend the Schedule to the Punjab Agricultural Produce Markets Act, 23 of 1961 was held to be not necessary.13 The person whose conduct is required to be necessary to be inquired into or whose reputation is likely to be prejudicially affected by the inquiry, must be given an opportunity of being heard.14 The hawkers/squatters were to be dislodged from the vicinity of the Reserve Bank of India building in view of the heightened security threat. The Apex Court held that they should be given a reasonable previous warming, howsoever short, before being physically removed and the municipal authorities/agencies should at the earliest identify an alternate place where they could be accommodated for which purpose they should be given a hearing through a representative.15 When the Excise Commission initiates proceedings under Section 67-Fand an order is proposed to be passed in terms of the provisions of the said section which would be prejudicial to the party, an opportunity of hearing is to be given to the said party.16 In the instant case, even if the impugned notification falls under the third category of conditional legislation as classified in K. Sabanayagam case,17 whatever material the Food Health Authority had, before taking a decision on the articles in question, ought to have been presented to the parties who were likely to be affected by it. The principles of natural justice required that they should have been given an opportunity of meeting the facts. That having been not done, the impugned notification was bad in law.18 While taking a policy decision, the Government is not required to hear the persons who have been granted the benefit which is sought to be withdrawn. However, in the instant case, since the State had not taken any specific stand justifying the withdrawal and the High Court had recorded findings with reference to the files, the principles of natural justice certainly were available.19 Where the employees, in occupation of rent-free

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accommodation for a number of years, were issued notices in persuance of an order charging from them licence fee for the occupation of the accommodation, without affording them an opportunity of hearing, the order of the Tribunal quashing the impugned order and giving the employer liberty to proceed afresh in accordance with law after giving notice and opportunity to the employee, was upheld by the Supreme Court.20 In SBP & Co. v. Patel Engineering Ltd., 21 it was held that the function of the Chief Justice of the Supreme Court of India of appointment of an arbitrator under Section 11(6)of the Arbitration and Conciliation Act, 1996 is judicial, hence notice ought to be issued and opportunity of hearing be afforded by him to the person or persons likely to be affected thereby in an appointment of arbitrator.22 Where a person derives a right by virtue the Government issuing a GOMS, he could not be deprived of it without affording an opportunity of being heard.23 If a foreigner has entered India legally upon single entry permit issued to him, it is only fair that the competent authority must inform him the reasons for his deportations. If such a decision is taken, he must be given an opportunity to submit his representation against his proposed expulsion. The competent authority may thereafter consider his representation and pass appropriate order. This procedure may be departed from for compelling reasons of national security which was lacking in the instant case.24 Due to acquisition of Assam Railways and Trading Company Ltd. (ARTC) by the Central Govt., its properties vested in the Central Govt. The said properties now vested with the Coal Mines Authority Ltd., which was a Government undertaking. Its subsidiary was the patta-holder of the land in question. The Additional Deputy Commissioner declared the land abandoned and 'Sarkari' and assigned it to a person without giving any notice to the patta-holder which was violation of principles of natural justice. Even if the land revenue was not paid by the patta-holder, a proper notice should have been given to it to deposit the same failing which the Government could initiate appropriate action.25 In Ateef Nasir Mulla v. State Through C.B.I. Bombay (II) 26 the Apex Court held that, though there was no statutory requirement to give notice to the accused under Prevention of Terrorism Act, 2002 regarding extension of time to complete investigation but in absence of any specific provision to this effect, the Apex Court observed that fair play and principles of natural justice demanded that before granting extension of time, the Court must give notice to the accused to oppose the application. An employee was removed from service after conducting departmental enquiry. The order of removal was set aside by the Tribunal which was confirmed by the High Court but it granted liberty to the management to hold a fresh departmental enquiry which was started but subsequently the employee was proceeded ex parte and the management did not recall its order despite his representations immediately thereafter. The Apex Court set aside the order of removal and directed the inquiry to be continued from the stage, he was proceeded ex parte to which the employee would co-operate so that the same could be concluded within two months soon after which appropriate orders would be passed by the disciplinary authority.27 The services of an employee were terminated due to unauthorised absence from duty. The Tribunal set aside the order of termination holding that the order contained stigma and no opportunity of hearing was given to the employee. The state was given liberty to proceed afresh which was upheld by the High Court. The Supreme Court held that though it was not very clear from the records that the employee had submitted his explanation as claimed, the Tribunal's order was justified as there was no appearance on the date of hearing on behalf of the state. The employee was given time to file his reply to the show-cause notice which he had admitted to have been served.28 In a public interest litigation regarding immense air and noise pollution, traffic congestion and unsystematic functioning of various authorities in Chandigarh, the High Court had issued directions that in this respect the directions issued by the High Power Committee should be treated as directions of the High Court. In an SLP challenging the same, the Apex Court modified this direction to the extent that, whenever any suggestion was received from the High Power Committee, the Chandigarh Administration should be given an opportunity to have its say and thereafter the High Court should pass necessary orders.29 In Lokmat Newspapers Pvt. Ltd. v. Shankarprasad 30 the Supreme Court held that before any rationalisation, standardisation or improvement of a plant or technique, is to be resorted by the management of any establishment, if by such an exercise retrenchment of workmen is likely to result, then before introducing such scheme, a prior notice under Section 9-A of the Industrial Disputes Act, 1947 is to be issued to the workman who can get an opportunity to show that they may not be retrenched because of the new scheme which is in the offing and can suggest ways and means available to the management to avoid such proposed retrenchment of the workmen despite the introduction of the new scheme. Such a notice must precede the introduction of the scheme, it cannot follow the same. The services rendered by an employee in another department were counted and considered for his seniority and promotion. The Government could not subsequently withdraw the benefit and cancel the promotion order on the ground of the same having been given on account of mistake without affording him an opportunity of hearing.31 Where

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a tenant is divested of his pre-existing right, he is entitled to defend his right, title and interest in the property and must be heard. In the instant case, opportunity was not given.32 Opportunity not necessary--illustrative cases.-- Section 10(1)of the Act of the Industrial Disputes Act, 1947 provides that where an appropriate Government is of the opinion that any industrial dispute exists or is apprehended, it may, at any time, by order in writing refer the dispute to named authorities. Section 12(5)of the Act postulates that on receipt and consideration of a report from the conciliation officer, if the Government is satisfied that there is a case for reference to the Board, Labour Court, Tribunal or National Tribunal, as the case may be, it may make such reference. Where the appropriate Government does not make such a reference it shall record reasons therefor and communicate to the parties concerned. On making an application for reference by the workman, it would be open to the State Government to form an opinion whether industrial dispute exists or is apprehended and then either to make a reference to the appropriate authorities or refuse to make the reference. Only on rejection thereof, the order needs to be communicated to the applicant. Nonetheless the order is only an administrative order and not a quasi-judicial order. When it rejects, it records reasons as indicated in sub-section (5) of Section 12of the Act. The appropriate Government is entitled to go into the question whether an industrial dispute exists or is apprehended. It would be only a subjective satisfaction on the basis of the material on record. Being an administrative order no lis is involved. Thereby there is no need to issue any notice to the employer nor to hear the employer before making a reference or refusing to make a reference. Sub-Section (5) of Section 12of the Act does not enjoin the appropriate Government to record reasons for making reference under Section 10(1). It enjoins to record reasons only when it refuses to make a reference.33 While considering a second representation of the workman for the reference of the dispute after rejecting the first one, the need for hearing is obviated, the Govt. as even then if makes reference, it does not cease to be an administrative order and so is not incumbent upon the State Government to record reasons therein. Therefore, it is not necessary to issue notice to the employer nor to consider his objections nor to hear him before making a reference. Accordingly, the Supreme Court was of the view that the High Court was wholly wrong in its conclusion that before making reference on second application, it was incumbent upon the State Government to give notice to the employer and to give an opportunity to the employer and record reasons for making reference.34 Rule 4.8of the Punjab State Service Rules, Vol I, Part I, does not contemplate any hearing to be granted to an employee before a decision is taken with regard to permitting or non-permitting an employee to cross his efficiency bor prescribed in the time-scale though the order passed in respect of it, if stopping an employee at an efficiency, is required to be a speaking one.35 Under the Andhra Pradesh Lokayukta and Upa-Lokayukta Act 2 of 1983, the Lokayukta is empowered to conduct such preliminary verification as he deems fit or proposes to conduct any investigation under the Act to find out whether the allegations in a complaint prima facie justify for conducting regular investigation. Sub-Section (2)(d) of Section 10postulates that every preliminary verification referred in sub-section (1) shall be conducted in private and in particular, the identity of the complainant and of the public servant affected by the said preliminary verification shall not be disclosed to the public or the press whether before or during the preliminary verification, but every investigation referred in sub-section shall be conducted in public. Hence, it would not be necessary to issue notice or give opportunity to the public servant at the preliminary verification or investigation, the object of which appears to be that the preliminary investigation or verification is required to be done in confidentiality to get prima facie evidence so that the needed evidence or material may not be got suppressed or destroyed.36 Exercising the powers under cl. 5(1) of the Assam Frontier (Administration of Justice) Regulation, 1945, a Deputy Commissioner in Arunachal Pradesh approved the appointment of a certain person as Head Gaonburah who enjoyed both executive and judicial powers but no formal order of appointment was issued. The Additional Deputy Commission was directed to inform that person about the said approval but before such information could be conveyed, the Deputy Commissioner, on represation by a rival faction, with a view to ensure a free and fair selection, restrained the communication of the said information of approval and thereafter, he, by another order, appointed another person on the said post. The earlier appointee challenged it and the High Court set aside the later order on the ground of non-affording of prior opportunity holding that it amounted to removal of the earlier appointee. The Supreme Court held that the later order did not amount to removal as held by the High Court as the earlier order was not conveyed and hence prior opportunity was not required.37 In a proceeding in respect of disproportionate assets under Section 5(1)(e)of the Prevention of Corruption Act 1947, the opportunity of hearing to the delinquent officer regarding satisfactorily explaining about his assets and resources is to be afforded when the trial

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commences and not at an earlier stage i.e. at the state of forming prima facie opinion about his misconduct.38 Under clause 4(d)(iii) of the New Bank of India [Determination of Placement of Employees (Officers and Workmen) of the New Bank of India in Punjab National Bank] Scheme, 1993, the employees of New Bank of India were transferred to the transferee bank without affording them an opportunity before framing the scheme. It was held by the Supreme Court that, as the said provision did not effect any change in the service conditions of the employees of the transferor bank, affording them opportunity was not necessary.39Rajasthan Co-operative Dairy Federation Ltd., by inviting applications for selling agents for its various products, issued a Letter of Intent appointing a marketing concern as its selling agent under certain terms and conditions to be fulfilled which it did not fulfill. Instead, it advertised that it was the sole selling agent of said Dairy, though it was not. The Dairy cancelled the Letter of Intent issued to the said concern. It was contented before the High Court that it could not be done without affording it a prior opportunity of hearing, which was upheld by the High Court. The Supreme Court observed that the doctrine of audi alteram partem could not be imported in these circumstances. If the conduct of the agent did not inspire confidence in the principal, the principal was entitled to decline entering into any legal relationship with the agent. The Letter of Intent merely expressed an intention to enter into a contract and the conduct of the agent was such as entitled the principal to withdraw the Letter of Intent. There was no binding legal relationship between the two.40 In response to an advertisement certain persons applied for the posts of Overseer/Junior Engineer (Civil Engineering). The Member Secretary of the Regional Subordinate Service Selection Board recommended the names of certain candidates for appointment without following any selection process pursuant to which one of them was appointed on probation of one year by the Chief Executive Officer, Zila Parishad, Gadchiroli. After he had completed nine month's service, he received termination letter from the same officer stating that the recommendation for appointment was unauthorised which was challenged before the High Court on the ground that he was not afforded any opportunity of hearing in the inquiry but his petition was dismissed. The Apex Court observed that as the recommendation of appointment, without selection process having been followed, was unauthorised, there was no fault in cancelling the appointment as such and directed an inquiry to be conducted and appropriate criminal prosecution to be done against the persons found guilty.41 A Chief Engineer's date of birth on his joining on 20.8.1992 as a Junior Engineer was entered to be 30-11-1936. In the M.P. Civil List published on 1.7.1964 he was at Serial No. 153 with the same date birth and in 1965 he was at Serial No. 162 with the same date of birth. Thereafter, the service register was not available and on being called upon to produce his service book, he did not produce it, instead he supplied a photocopy of his date of birth certificate showing 28.6.1938 as his date birth. The report, called from the primary and secondary schools he had passed through, confirmed his date of birth to be 30.11.1936. His loan application showed the same date of birth. When an action was sought to be taken, he filed an application before the Chief Minister for correction of his date of birth. He ordered his date of birth to be incorporated as per his service records which was accordingly done. Subsequently, the same was withdrawn and recorrected as 28.6.1938. A complaint as to it was made to the Lokayukta, who conducted an elaborate enquiry like a trial suit, considered the stand of the employee who submitted documents in support of his version which, on being sent to the handwriting expert, were found to be fabricated by the employee. The Lokayukta concluded that his correct date of birth was 30.11.1936 which was entered in service records on his joining and by forgery he had succeeded in continuing in service even after his date of superannuation and earned the salary he was not entitled to. He recommended that recovery should be made from him and proceedings against him to taken as per service rules. His date of birth was accordingly corrected. The employee moved the Administrative Tribunal who took the view that before correcting his date birth in view of the recommendations of the Lokayukta, the employee was not given an opportunity which was violation of the principles of natural justice. It ordered him to be continued in service with all benefits. The matter came before the Supreme Court in SLP and it was observed that unimpeachable evidence there was as his date of birth being 30.11.1936, records were found to be tampered and the Lokayukta, who was a retired Chief Justice, having conducted the inquiry as a trial of suit affording him opportunity to adduce evidence, no further opportunity was required to be given before taking action as per recommendations of the Lokayukta.42 In case the disciplinary authority disagrees with the findings of the Inquiry Officer and the authority records reasons for the same, the delinquent employee is not entitled to a further opportunity of hearing.43 In Central Bureau of Investigation v. Rajesh Gandhi, 44 the Apex Court held that while the powers and jurisdiction of the members of the Delhi Special Police Establishment being extended to a State in connection with the investigation of a particular case, by the Central Govt., affording an opportunity of hearing to the accused is not necessary. In exercise of powers conferred by Sections Section 48, 49 and 50

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of the Major Port Trusts Act, 1963, of a notification was issued on 8.1.1980 whose clause (6) conferred power on the Board of Trustees of the Port of Cochin to fix the quantum of damages or compensation unilaterally, without affording the master or owner of a vessel an opportunity of being heard which was contended to be violative of the principles of natural justice. The Apex Court observed that at the first blush the agrument appeared to be attractive but, on closer scrutiny, and having regard to the purpose and object of making the said provision entitling the Board to determine the quantum of damages, it would appear that the urgency of the situation demands that the Board should be allowed to determine the liability and claim payment or security for the same before the vessel leaves the shores of the country. Once it has left the shore, it would be impossible for the Board to recover the damage caused by the vessel to its property. In order to protect international trade and at the same time ensure that the damage caused to the property of the port is recovered before the vessel leaves the port, it seems essential that the Board should be empowered to determine the quantum of damages and ensure that the vessel does not leave the port before depositing cash or providing security for the same. Besides, to avoid dislocation of traffic, it is essential that the damage caused to the port or property of the Board is repaired without loss of time, for which funds would be required. In the circumstances, it is therefore inevitable that the power to determine the damage must vest in the Board for, otherwise, the vessel may leave the port and the Board would be left to suffer the damage without recovering it from the offending vessel. Therefore, while conceding that the right to be heard before the quantum of damage is determined is an important right, in the very nature of things and having regard to the urgency of the matter, public interest demands that before the vessel leaves the shores of the country, the estimated damage is paid to or secured by the Board. The interests of justice, insofar as the Board is concerned, would not be safeguarded if this power is not vested in the Board and consequently the vessel is permitted to leave the shores of the country without securing the damage. Besides, if the master or owner of the vessel desires to question the quantum of damages determined by the Board, the law does not preclude the filing of a civil suit in that behalf. In the civil suit, the basis on which the quantum of damages was worked out by the Board would be fully reviewed and that would provide a post-decisional hearing to the master or owner of the vessel.45 There is no question of invocation of principles of natural justice or hearing the affected parties when legislative action is brought on the anvil of scrutiny or for that matter even an action of a delegated legislative authority is brought in challenge. It is axiomatic that a legislative exercise or exercise by a subordinate legislative agency imposing any tax or fee or charges would not require the affected parties to be heard before such charges or impost are levied.46 A proclamation was issued under Art. 356 of the Constitution of India by the President on 18.10.1995 assuming to himself all functions of the Govt. of U.P. as well as the powers vested in or exercisable by the Governor. By a further notification, he authorised the Governor to exercise all powers by himself on his behalf. On 19.3.1996, the Election Commission announced elections to the State Legislature and issued instructions known as "Model Guidelines for the Govt." On 20.3.1996, the Election Commission sent out messages to the Chief Secretary that its standing instructions including ban on transfers, etc., had come into force. Thereafter, an IPS officer was given six months' extension in his service from the date of his superannuation under Rule 16of All India Services (Death-cum-Retirement Benefits) Rules, 1958 which was objected to by the Election Commission. Consequently, the Governor cancelled his order extending his service prior to his date of superannuation. The order of cancellation was challenged by him in CAT on the ground, among others, of not affording him an opportunity of being heard as the order of extension had created a right to continue in service for a period of six months. Therefore, the order of cancellation was vitiated on account of violation of principles of natural justice. The Apex Court agreeing with the CAT held that till the order of extension of service could become operative, no right under the order had vested in the incumbent and hence, the order of cancellation could not withdraw any right. So there was no violation of principles of natural justice and the question of hearing him did not arise. Besides, the order of extension was unilateral and the officer had not asked for extension.47 The competent authority in Govt. of M.P. gave grace marks to the constable candidates of one zone in the departmental examination for promotion. Later on, realising that it was improper to give grace marks to the constables of one zone and not to those of the other, the grace marks were withdrawn without affording them the opportunity of hearing on the ground of which the Tribunal allowed their appeals. The Apex Court observed that it was true that, if any vested right was created in favour of a person, the same could not be withdrawn without affording him an opportunity of hearing. However, in the instant case, the constables had no vested right to get grace marks by way of relaxation and the power to relax would include the power to withdraw on valid grounds such as here the relaxation being discriminatory. Hence, the principle of natural justice was not violated, even though some of them were already promoted after undergoing

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training.48 The, Colliery Control Order, 1945 makes provisions for regulating the production, supply and distribution of coal. It postulates supply of coal by the colliery owner to a person engaged in business of coal on the basis of an allotment order issued by the Coal Controller. In pursuance of the notifications the Central Coalfields Ltd., a subsidiary of Coal India Ltd., framed the Liberalised Sales Scheme-II under which Central Coalfields Ltd., allotted steam coal to a certain concern for supply from two particular coallieries. On request of the allottee, the Coal Controller issued directions under cl. 8 of the aforesaid Colliery Central Order to supply coal from another colliery. The Coal India Ltd., contended that the Coal Controller could not issue such a direction without affording an opportunity to it to make submissions in that regard. The Supreme Court held under the said cl. 8, the Coal Controller was competent to issue such a direction and he was not obliged to afford opportunity to the Coal India Ltd.49 In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, 50 The Supreme Court observed that, if the encroachment is of a recent origin, the need to follow the procedure of principles of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be tedious and time-consuming process leading to a premium for high-handed and unauthorised acts of encroachment and unlawful squatting.51 A certain person was selected as President of the Union of a certain community associations and by virtue of that office he became an ex officio Manger of the two schools run by it for a fixed term. The Register of the union, after inquiry found him guilty of gross mismanagement and misappropriation of its funds which he admitted and made time-bound promise to pay back but failed. Consequently, the Register appointed an ad hoc Committee for its management including the schools which took over the charge. In the meantime, the term of the President had already expired and his suit for preventing the ad hoc Committee from taking over charge had failed. The appointment of the ad hoc Committee had also been approved by the authorities. The Apex Court held that in view of the expiry of his term, there could not be any question of his being visited with civil consequences, so as to invoke the principles of natural justice and require a hearing before the grant of approval. It was also held that his admission regarding misappropriation of funds also disentitled him to invoke the principles of natural justice.52Section 124 of the Customs Act, 1962 provided for notice to be given to the owner of goods before their confiscation. The Apex Court held that such a notice was not mandatory and notice to the persons responsible for the contravention of the provisions of the Act on which the order was based would meet the requirement of Section 124and sustain the order of confiscation. Further, an order passed in disregard of the principle of audi alteram partem would not be invalidated, if it could be shown that as a result of denial of opportunity contemplated by the said rule, the person seeking to challenge the order had not suffered any prejudice as was the position in the instant case.53 If the mischief played is so wide spread and all-pervasive, affecting the result of a selection, it will be difficult to pick out the persons who have been unlawfully benefited or wrongly deprived of their selection, in such cases it will be neither possible nor necessary to issue individual show-cause notices to each selectee. The only way out would be to cancel the whole selection. Motive behind the irregularities committed also has its relevance.54 In view of Rule 13(2)of the Karnataka Excise (Lease of the Right of Retail Vend of Liquors) Rules, 1969, non-deposit of the security money under Rule 13(1)results in automatic cancellation of the temporary licence for retail vend of liquor and forfeiture of the money deposited at the time of provisional acceptance of the bid and in such circumstances no question of affording opportunity arises at this stage.55 Some Head Constables were appointed under Rule 10(a)(i)(l)of the A.P. State and Subordinate Services Rules, 1962 in the promotees quota temporarily as out of seniority, Sub-Inspectors without following the recruitment rules. Subsequently, their services were regularised w.e.f. the date of their temporary appointment which affected the seniority of the direct recruits who were not given notice. The Apex Court held that the direct recruits could made no grievance as their services were regularised in the promotee quota.56 A person procured appointment on a reserved civil post allegedly by producing a false Scheduled Caste certificate. After affording due opportunity he was found guilty by the Scrutiny Committee set up by the Supreme Court which upheld its finding. In such circumstances it was held that, issuance of a fresh notice to the delinquent officer under Indian Civil Services Rules before dismissing him was held to be unnecessary.57 In case of mass copying, the principles of natural justice need not be strictly complied with.58 Where certain employees were transferred without holding an inquiry on the allegations of serious nature involving misconduct, it was held that for the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee was unnecessary and what was needed was the prima facie satisfaction of the authority on the contemporary reports about the occurrence complained of and if the

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requirement of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated.59 In Noble Synthetics Ltd. v. CCE,60 an assessee company sought reclassification of its products under a more favourable category and produced technical opinions of certain processors. The adjudicating authority forwarded those opinions to the Deputy Chief Chemist of the Deptt. to seek his opinion thereon and to carry out tests on the samples of the assessee's products without intimating the assessee regarding this departmental reference and it was contended by the company to be violative of the principles of natural justice. The Apex Court held that such a reference without intimation to the assessee was permissible. Non-communication of departmental opinion to the assessee also was held to be not violative of the principles of natural justice as it was not relied upon by the adjudicating authority.61 The law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and there is no right to representation by somebody else unless the relevant rules or regulations and standing orders specifically recognise such a right and provide for such representation. Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial thereof would vitiate the enquiry itself.62 In case of Government's decision to disinvest in Public Sector Undertakings, the employees of such undertakings have no right of pre-decisional notice and hearing or of continuous consultation at different stages of disinvestment process, if the process does not contravene any law.63 A query as to inter se seniority of two lecturers was made to the Regional Joint Director of Education who opined in favour of one of them, without notice to the other but on a representation being made by the other, he reconsidered the matter and decided in favour of the other which was challenged by a third lecturer on the ground of not being heard. The Apex Court held that, it being a question of inter se seniority, she had no such right.64 Under Section 4(1)of the Jute Packaging Materials (Compulsory Use in Packing Commodities) Act, 1987, it is incumbent upon the Central Govt. to constitute a Standing Advisory Committee with a view to determining the commodity or class of commodities or percentage thereof in respect of which jute packing material shall be used in their packaging. Under Section 4(2)the Standing Advisory Committee it is required to indicate its recommendation to the Central Govt. There is no provision in Act requiring the Standing Advisory Committee to afford a hearing to any person associated with either the production of the raw jute or engaged in the production of the jute packaging material before making its recommendations to the Central Govt.65 If a retrenchment is effected under Section 6-N of the Industrial Disputes Act, 1947, the question of complying with the principles of natural justice would not arise. It would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached.66 Purportedly acting on the basis of the allegations made by several villagers of a Gram Panchayat as well as the Member of the Legislative Assembly, the Collector directed an inquiry to be conducted by the Sub-Collector into the allegations against Sarpanch. The Sub-Collector recorded the statements of the complainants and also that of the Sarpanch and concluded that the Sarpanch had misused his power as such and failed to discharge his duties. Considering his report, the Collector suspended the Sarpanch in the purported exercise of powers conferred under Section 115(1)of the Orissa Gram Panchayats Act, 1964 without affording an opportunity of hearing to the Sarpanch. It was held that at this stage, the Sarpanch needn't be given an opportunity of being heard. Under the provisions of Section 115, it is only at the stage of removal, a reasonable opportunity to show cause is to be granted to the Sarpanch or the Naib-Sarpanch concerned, as the case may be.67 The termination order simplicitor of an employee, appointed on temporary basis, does not cast any stigma and is not an order of removal. Hence, he was not entitled to any opportunity of show-cause.68 In case of discharge of the services of a probationer by the employer on the ground that his services are unsuitable, no stigma is cast on the employee nor is it punitive. In such cases principles of natural justice do not apply.69 In a public interest litigation regarding immense air and noise pollution, traffic congestion and unsystematic functioning of the various authorities, in Chandigarh, the High Courthad issued directions to remove all advertisement facing the highway, main roads and side roads. In an SLP it was contended before the Apex Court that persons who would be affected by these directions were not heard. The Apex Court held that, while dealing with issues like environmental pollution and road hazards, there was no need for giving notice to all the persons affected.70 The parties to a contract are bound by its terms and the application of the principles of natural justice cannot be read into the express terms of the contract.71 A candidate selected in I.A.S. failed to join the service, as he was not relieved from the previous post on account of misconduct committed and pendency of criminal proceedings.

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The letter of appointment was withdrawn. He contended that he was not given an opportunity of hearing prior to cancellation of his appointment. The Apex Court held that in the circumstances of the case, he was not entitled to.72 The judgment of the Court, declaring the law, is applicable to all concerned irrespective of the fact whether a class of persons were party to it or not.73

76 Sukhdeo v. Commissioner Amravati Division, (1996) 5 SCC 103 [LNINDORD 1996 SC 169] [LNINDORD 1996 SC 169] [LNINDORD 1996 SC 169], 106 (paras 5 and 6), relying on State Bank of India v. Kashinath Kher, (1996) 8 SCC 762 [LNIND 1996 SC 306] [LNIND 1996 SC 306] [LNIND 1996 SC 306]: AIR 1996 SC 1328 [LNIND 1996 SC 306] [LNIND 1996 SC 306] [LNIND 1996 SC 306]. 77 State of U.P. v. Yamuna Shanker Misra, (1997) 4 SCC 7 [LNIND 1997 SC 324] [LNIND 1997 SC 324] [LNIND 1997 SC 324], 13: AIR 1997 SC 3671 [LNIND 1997 SC 324] [LNIND 1997 SC 324] [LNIND 1997 SC 324]. (Para 7) relying on S. Ramachandra Raju v. State of Orissa, 1994 Supp (3) SCC 424: AIR 1995 SC 111 [LNIND 1994 SC 766] [LNIND 1994 SC 766] [LNIND 1994 SC 766]; Moti Ram Deka v. G.M. N.E.F. Rlys., (1964) 5 SCR 683 [LNIND 1963 SC 282] [LNIND 1963 SC 282] [LNIND 1963 SC 282]: AIR 1964 SC 600 [LNIND 1963 SC 282] [LNIND 1963 SC 282] [LNIND 1963 SC 282]; Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]; State Bank of India v. Kashinath Kher, (1996) 8 SCC 762 [LNIND 1996 SC 306] [LNIND 1996 SC 306] [LNIND 1996 SC 306]: JT (1996) 2 SC 569 [LNIND 1996 SC 306] [LNIND 1996 SC 306] [LNIND 1996 SC 306]; U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 [LNIND 1996 SC 232] [LNIND 1996 SC 232] [LNIND 1996 SC 232]: AIR 1996 SC 1661 [LNIND 1996 SC 232] [LNIND 1996 SC 232] [LNIND 1996 SC 232]; Sukhdeo v. Commr. Amravati Division, (1996) 5 SCC 103 [LNINDORD 1996 SC 169] [LNINDORD 1996 SC 169] [LNINDORD 1996 SC 169]. 78 Nagar Palika, Chandpur v. State of U.P., (1996) 7 SCC 74, 76 (paras 11 and 12). 79 Municipal Corporation v. Chelaram & Sons, (1996) 11 SCC 127 [LNIND 1996 SC 1570] [LNIND 1996 SC 1570] [LNIND 1996 SC 1570], 131 (para 5): AIR 1997 SC 31 [LNIND 1996 SC 1570] [LNIND 1996 SC 1570] [LNIND 1996 SC 1570], following Babubhai & Co. v. State of Gujarat, (1985) 2 SCC 732 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]: AIR 1985 SC 613 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]and overruling Saiyed Mohd. Abdullamiya Uraizee v. Ahmedabad Municipal Corporation, (1977) 18 Guj LR 549. 80 Babubhai & Co. v. State of Gujarat, (1985) 2 SCC 732 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117], 738 (para 8): AIR 1985 SC 613 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]. 81 Pilibhit Electric Supply Co. (P.) Ltd. v. Special Officer (Electricity), (1996) 11 SCC 288 [LNIND 1996 SC 1659] [LNIND 1996 SC 1659] [LNIND 1996 SC 1659], 305 (para 12). 82 Punjab State Electricity Board v. Ashwani Kumar, (1997) 5 SCC 120, 124 (para 9). 83 Hindustan Paper Corporation v. Purnendu Chakrobarty, (1996) 11 SCC 404 [LNIND 1996 SC 2879] [LNIND 1996 SC 2879] [LNIND 1996 SC 2879], 409 (paras 11 and 12). 84 Sir Shadilal Distillery & Chemicals Works v. State of U.P., (1997) 1 SCC 527 [LNINDORD 1996 SC 124] [LNINDORD 1996 SC 124] [LNINDORD 1996 SC 124], 528 (paras 6-8): AIR 1997 SC 2152 [LNINDORD 1996 SC 124] [LNINDORD 1996 SC 124] [LNINDORD 1996 SC 124]. See also Cox & Kings (India) Ltd. v. Mela Adhikari Kumbh Mela, 2001 (1) Scale 415, Iravancore Electro-Chemical Industries Ltd. v. Collector of Central Excise, 1997 (94) ELT 279; Sri Sri Sri Lakshamana Yatendrulu v. State of A.P., AIR 1996 SC 1414 [LNIND 1996 SC 193] [LNIND 1996 SC 193] [LNIND 1996 SC 193]: (1996) 8 SCC 706. 85 U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 [LNIND 1996 SC 1977] [LNIND 1996 SC 1977] [LNIND 1996 SC 1977], 117 (para 12). 86 U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 [LNIND 1996 SC 1977] [LNIND 1996 SC 1977] [LNIND 1996 SC 1977], 118 (para 5). 87 Vinod Kumar Sharma v. State of U.P., (2001) 4 SCC 675, 682: AIR 2001 SC 1802. 88 (1997) 4 SCC 430 [LNIND 1997 SC 173] [LNIND 1997 SC 173] [LNIND 1997 SC 173], 434 (para 5): AIR 1997 SC 1390 [LNIND 1997 SC 173] [LNIND 1997 SC 173] [LNIND 1997 SC 173]. See also, O.P. Choudhary v. Rehabilitation Ministry Employees, Cooperative House Building Society, (2003) 10 SCC 170 [LNIND 2003 SC 385] [LNIND 2003 SC 385] [LNIND 2003 SC 385], 183 (para 23): AIR 2003 SC 3996 [LNIND 2003 SC 385] [LNIND 2003 SC 385] [LNIND 2003 SC 385]; State of U.P. v. Krishna Lal Sehgal, 2005 (4) Scale 402: (2005) 12 SCC 193; State of Mysore v. Syed Mehmood, AIR 1968 SC 1113 [LNIND 1968 SC 60] [LNIND 1968 SC 60] [LNIND 1968 SC 60]; Delhi Financial Corporation v. Rajiv Anand, (2004) 11 SCC 625; Saptagiri Enterprises Pvt. Ltd. v. Karnataka State Electronics Development Corporation Ltd., 2001 (Supp-2) JT 101; Gajraj Singh v. State of U.P., AIR 2001 SC 2370 [LNIND 2001 SC 1125] [LNIND 2001 SC 1125] [LNIND 2001 SC 1125]: (2001) 5 SCC 762. 89 Vishakhapatnam Port Trust v. Ram Bahadur Thakur Pvt. Ltd., (1997) 4 SCC 582 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702] [LNIND 1997 SC 1702], 603 (para 15): AIR 1997 SC 1057 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702] [LNIND 1997

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SC 1702]. 90 (1997) 4 SCC 138, 139 (paras 2 and 3). 91 Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 [LNIND 2006 SC 1121] [LNIND 2006 SC 1121] [LNIND 2006 SC 1121], 328 (para 18): AIR 1999 SC 3504; partly reversing and partly approving Indian Charge Chrone Ltd. v. U.O.I., (1994) 72 ELT 538 (Ori). 92 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 121 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685], 130 (para 10): AIR 1997 SC 152 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685]. See also P. Narayana Bhat v. State of T.N., (2004) 4 SCC 554, 557 (para 9). 93 Collector of Customs v. Hardik Industrial Corporation, (1998) 1 SCC 494 [LNIND 1997 SC 1596] [LNIND 1997 SC 1596] [LNIND 1997 SC 1596], 496-97 (paras 7, 8 and 9): AIR 1998 SC 823 [LNIND 1997 SC 1596] [LNIND 1997 SC 1596] [LNIND 1997 SC 1596]. See also Collector of Central Excise v. Western India Plywood, (1998) 1 SCC 316, 317-18 (paras 3 and 4). 94 Wasim Beg v. State of U.P., (1998) 3 SCC 321 [LNIND 1998 SC 294] [LNIND 1998 SC 294] [LNIND 1998 SC 294], 330 (para 20): AIR 1998 SC 1132 [LNIND 1998 SC 271] [LNIND 1998 SC 271] [LNIND 1998 SC 271]. 95 Larsen & Toubro Ltd. v. State of Gujarat, (1998) 4 SCC 387 [LNIND 1998 SC 328] [LNIND 1998 SC 328] [LNIND 1998 SC 328], 407 (paras 30 and 31): AIR 1958 SC 1608. 96 Myurdhwaj Co-operative Group Housing Society Ltd. v. Presiding Officer, Delhi Co-operative Tribunal, (1998) 6 SCC 39 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603], 49 (para 15): AIR 1998 SC 2410 [LNIND 1998 SC 603] [LNIND 1998 SC 603] [LNIND 1998 SC 603]. See also Baraka Overseas Traders v. Director General of Foreign Trade, (2006) 8 SCC 103 [LNIND 2006 SC 708] [LNIND 2006 SC 708] [LNIND 2006 SC 708], 106-07 (para 16). 1 UPTRON India Ltd. v. Shammi Bhan, (1998) 6 SCC 538 [LNIND 1998 SC 164] [LNIND 1998 SC 164] [LNIND 1998 SC 164], 546-47 (paras 20 and 25): AIR 1998 SC 1681 [LNIND 1998 SC 164] [LNIND 1998 SC 164] [LNIND 1998 SC 164], followed in Scooters India Ltd. v. M. Mohammad Yagula, (2001) 1 SCC 61 [LNIND 2000 SC 1613] [LNIND 2000 SC 1613], 64 (paras 11 and 12): AIR 2001 SC 227 [LNIND 2000 SC 1613] [LNIND 2000 SC 1613]. See also Syndicate Bank v. General Secretary, Syndicate Bank Staff Association, (2000) 5 SCC 65 [LNIND 2000 SC 715] [LNIND 2000 SC 715] [LNIND 2000 SC 715], 76 (para 14); Lakshmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 560 (para 15): AIR 2002 SC 2914; U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, (2004) 4 SCC 268 [LNIND 2004 SC 216] [LNIND 2004 SC 216] [LNIND 2004 SC 216], 280 (para 23); D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SC 259: 1993 SCC (L&S) 723; Change in conditions of service, notice to be given, Harmohinder Singh v. Kharga Canteen, Ambala Cantt., AIR 2001 SC 2681: (2001) 5 SCC 540. Imposition of penalty without affording any opportunity, bad, State of Bihar v. Industrial Corporation (P.) Ltd., (2003) 11 SCC 465 [LNIND 2003 SC 744] [LNIND 2003 SC 744] [LNIND 2003 SC 744], 473 (para 16): AIR 2004 SC 1151 [LNIND 2003 SC 744] [LNIND 2003 SC 744] [LNIND 2003 SC 744], following A. Mohd. Basheer v. State of Kerala, (2003) 6 SCC 159 [LNIND 2003 SC 559] [LNIND 2003 SC 559] [LNIND 2003 SC 559]; G.M. North East Frontier Railway v. Dinabandhu Chakraborty, (1917) 3 SCC 883and Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230 [LNIND 2003 SC 542] [LNIND 2003 SC 542] [LNIND 2003 SC 542]: AIR 2003 SC 2686 [LNIND 2003 SC 542] [LNIND 2003 SC 542] [LNIND 2003 SC 542]; retrospective promotion affecting inter se seniority, notice to be given to affected persons, Chhotu Ram v. State of Haryana, (2000) 10 SCC 399. 2 S.K. Bhargava v. Collector, Chandigarh, (1998) 5 SCC 170 [LNIND 1998 SC 475] [LNIND 1998 SC 475] [LNIND 1998 SC 475], 174 (para 9): AIR 1998 SC 2885 [LNIND 1998 SC 475] [LNIND 1998 SC 475] [LNIND 1998 SC 475]. 3 State of W.B. v. Nuruddin Mallick, (1998) 8 SCC 143 [LNIND 1998 SC 903] [LNIND 1998 SC 903] [LNIND 1998 SC 903], 153 (paras 31 and 32): AIR 1999 SC 1446. 4 Yadavindra Public School Association v. State of Punjab, (1999) 1 SCC 189, 190 (para 2): AIR 1999 SC 3373. 5 Rakesh Kumar v. Sunil Kumar, (1999) 2 SCC 489 [LNIND 1999 SC 118] [LNIND 1999 SC 118] [LNIND 1999 SC 118], 500 (para 21): AIR 1999 SC 935 [LNIND 1999 SC 118] [LNIND 1999 SC 118] [LNIND 1999 SC 118]. See also State of Punjab v. Bhajan Singh, (2001) 3 SCC 565 [LNIND 2001 SC 574] [LNIND 2001 SC 574] [LNIND 2001 SC 574], 571 (para 10): AIR 2001 SC 1098 [LNIND 2001 SC 574] [LNIND 2001 SC 574] [LNIND 2001 SC 574]. 6 Uma Ballav Rath v. Maheshwar Mohanty, (1999) 3 SCC 357 [LNIND 1999 SC 200] [LNIND 1999 SC 200] [LNIND 1999 SC 200], 361 (para 6): AIR 1999 SC 1322 [LNIND 1999 SC 200] [LNIND 1999 SC 200] [LNIND 1999 SC 200]. 7 (1999) 3 SCC 107, 108 (para 3): AIR 1999 SC 3803. 8 (1999) 3 SCC 107, 108 (para 3): AIR 1999 SC 3803. 9 Rajendra Prasad Arya v. State of Bihar, (2000) 9 SCC 514, 515 (para 3). 10 D.P. Chadha v. Triyugi Narayan Mishra, (2001) 2 SCC 221 [LNIND 2000 SC 1761] [LNIND 2000 SC 1761] [LNIND 2000 SC 1761], 239-40 (para 32): AIR 2001 SC 457 [LNIND 2000 SC 1761] [LNIND 2000 SC 1761] [LNIND 2000 SC 1761]. 11 (2001) 9 SCC 180 [LNIND 1996 SC 1618] [LNIND 1996 SC 1618] [LNIND 1996 SC 1618] (para 2). See also SBI v. K.P.

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Narayanan Kutty, (2003) 2 SCC 449, 454 (para 6): AIR 2003 SC 1100. 12 Prithipal Singh v. State of Punjab, JT 2000 (8) SC 26: 2000 (7) Supreme 685. 13 Laxmi Narain & Sons v. State of Haryana, (2001) 10 SCC 370, 371 (para 4). 14 State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361 [LNIND 2003 SC 788] [LNIND 2003 SC 788] [LNIND 2003 SC 788], 367 (para 8): AIR 2003 SC 3357 [LNIND 2003 SC 788] [LNIND 2003 SC 788] [LNIND 2003 SC 788]. 15 Sodan Singh v. NDMC, (2003) 10 SCC 216 (paras 1 and 2). 16 State of Kerala v. N. Avinasiappan, (2004) 1 SCC 334, 346 (para 5): AIR 2004 SC 354. See also Sangfroid Remedies Ltd. v. U.O.I., 1998 (103) ELT 5. 17 (1998) 1 SCC 318 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486]. 18 Godawat Pan Masala Products I.P. Ltd. v. Union of India, (2004) 7 SCC 68 [LNIND 2004 SC 737] [LNIND 2004 SC 737] [LNIND 2004 SC 737], 105 (para 76): AIR 2004 SC 4057 [LNIND 2004 SC 737] [LNIND 2004 SC 737] [LNIND 2004 SC 737]. 19 Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625 [LNIND 2004 SC 1166] [LNIND 2004 SC 1166] [LNIND 2004 SC 1166], 638 (paras 21 and 22). 20 Indian Council of Agricultural Research v. Hamendra Nath Mukherjee, (2004) 13 SCC 782-83 (paras 1,4 and 5). Parties in possession and enjoyment of suit properties, show-cause and hearing mandatory before demolition and dispossession, Lord Shiva Birajman in H.B. Yogalaya v. State of U.P., (2004) 13 SCC 518, 520 (para 11). 21 (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 690-91 (paras 127 and 128). 22 (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 690-91 (paras 127 and 128). 23 G. Srinivas v. Govt. of A.P., (2005) 13 SCC 712 [LNIND 2005 SC 715] [LNIND 2005 SC 715] [LNIND 2005 SC 715], 718 (para 21). 24 Hasan Ali Raihany v. Union of India, (2006) 3 SCC 705 [LNIND 2006 SC 178] [LNIND 2006 SC 178] [LNIND 2006 SC 178], 707 (para 8). 25 North Eastern Coalfields Coal India Ltd. v. Mubarak Ali, (2005) 11 SCC 293 [LNIND 2005 SC 410] [LNIND 2005 SC 410] [LNIND 2005 SC 410]. 26 AIR 2005 SC 3293 [LNIND 2005 SC 642] [LNIND 2005 SC 642] [LNIND 2005 SC 642]: (2005) 7 SCC 29. 27 Kendriya Vidyalaya Sangathan v. Abdul Khader Darga, 2005 (9) Scale 542. 28 State of U.P. v. Ram Bachan Tripathi, AIR 2005 SC 3212 [LNIND 2005 SC 572] [LNIND 2005 SC 572] [LNIND 2005 SC 572]: (2005) 6 SCC 496. 29 Chandigarh Administration v. Namit Kumar, (2004) 8 SCC 446 [LNIND 2004 SC 999] [LNIND 2004 SC 999] [LNIND 2004 SC 999], 450 (para 8). 30 (1999) 6 SCC 275 [LNIND 1999 SC 592] [LNIND 1999 SC 592] [LNIND 1999 SC 592], 307, 311 (paras 34 and 37): AIR 1999 SC 2423 [LNIND 1999 SC 592] [LNIND 1999 SC 592] [LNIND 1999 SC 592]. 31 Ram Ujarey v. Union of India, 1998 (7) JT 603: 1998 (6) Scale 133 [LNIND 1998 SC 1020] [LNIND 1998 SC 1020] [LNIND 1998 SC 1020]: AIR 1999 SC 309 [LNIND 1998 SC 1020] [LNIND 1998 SC 1020] [LNIND 1998 SC 1020]: (1999) 1 SCC 685. 32 Naranbhai Dayabhai Patel v. Sulaman Isubji Dadabhai, (1996) 7 SCC 278 [LNIND 1996 SC 84] [LNIND 1996 SC 84] [LNIND 1996 SC 84], 280 (para 3): AIR 1996 SC 1184 [LNIND 1996 SC 84] [LNIND 1996 SC 84] [LNIND 1996 SC 84]. 33 Sultan Singh v. State of Haryana, (1996) 2 SCC 66 [LNIND 1995 SC 1290] [LNIND 1995 SC 1290] [LNIND 1995 SC 1290], 67 (paras 3 and 4): AIR 1996 SC 2886 [LNIND 1995 SC 1398] [LNIND 1995 SC 1398] [LNIND 1995 SC 1398]. See also Designated Authority (Anti-Dumping Directorate) v. Haldor Topsoe A/S, (2000) 6 SCC 626 [LNIND 2000 SC 2491] [LNIND 2000 SC 2491] [LNIND 2000 SC 2491], 639 (para 25): AIR 2000 SC 2556. 34 Sultan Singh v. State of Haryana, (1996) 2 SCC 66 [LNIND 1995 SC 1290] [LNIND 1995 SC 1290] [LNIND 1995 SC 1290], 68 (paras 5): AIR 1996 SC 2886 [LNIND 1995 SC 1398] [LNIND 1995 SC 1398] [LNIND 1995 SC 1398]. 35 Haryana Warehousing Corporation v. Ram Avtar, (1996) 2 SCC 98 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118], 101-102 (paras 10 and 11): AIR 1996 SC 1081 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118]. 36 Rama Rao v. Lokayukta, (1996) 5 SCC 304 [LNIND 1996 SC 964] [LNIND 1996 SC 964] [LNIND 1996 SC 964], 306 (para 4 and 5): AIR 1996 SC 2450 [LNIND 1996 SC 964] [LNIND 1996 SC 964] [LNIND 1996 SC 964].

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37 Tagin Litin v. State of Arunachal Pradesh, (1996) 5 SCC 83 [LNIND 1996 SC 966] [LNIND 1996 SC 966] [LNIND 1996 SC 966], 87-88 (paras 14 and 15): AIR 1996 SC 2121 [LNIND 1996 SC 966] [LNIND 1996 SC 966] [LNIND 1996 SC 966], following Bachhittar Singh v. State of Punjab, 1962 Supp (3) SCR 713: AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108]. 38 State of Maharashtra v. I.P. Kalpatri, AIR 1996 SC 722 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213], pp. 726-727: (1996) 1 SCC 542 [LNIND 1995 SC 1213] [LNIND 1995 SC 1213] [LNIND 1995 SC 1213], following K. Veeraswami v. Union of India, (1991) 3 SCC 222. 39 New Bank of India Employees' Union v. Union of India, (1996) 8 SCC 407 [LNIND 1996 SC 565] [LNIND 1996 SC 565] [LNIND 1996 SC 565], 419-423 (paras 19 and 20): AIR 1996 SC 3208 [LNIND 1996 SC 565] [LNIND 1996 SC 565] [LNIND 1996 SC 565]. 40 Rajasthan Co-operative Dairy Federation Ltd. v. Maha Laxmi Mingrate Marketing Service Pvt. Ltd., (1996) 10 SCC 405 [LNIND 1996 SC 2276] [LNIND 1996 SC 2276] [LNIND 1996 SC 2276], 408 (para 7): AIR 1997 SC 66 [LNIND 1996 SC 2276] [LNIND 1996 SC 2276] [LNIND 1996 SC 2276]. 41 Pramod Lahudas Meshram v. State of Maharashtra, (1996) 10 SCC 749 [LNIND 1996 SC 1436] [LNIND 1996 SC 1436] [LNIND 1996 SC 1436], 750 (para 3): JT 1996 (9) SC 260 [LNIND 1996 SC 1436] [LNIND 1996 SC 1436] [LNIND 1996 SC 1436]. See also A. Umarani v. Registrar, Co-operative Societies, (2004) 7 SCC 112 [LNIND 2004 SC 721] [LNIND 2004 SC 721] [LNIND 2004 SC 721], 122, 130 (paras 16 and 65). 42 State of M.P. v. R.P. Sharma, (1996) 10 SCC 516, 519 (paras 8 and 9): AIR 1996 SC 2665. 43 State of Rajasthan v. M.C. Saxena, (1998) 3 SCC 385 [LNIND 1998 SC 1125] [LNIND 1998 SC 1125] [LNIND 1998 SC 1125]: AIR 1998 SC 1150 [LNIND 1998 SC 1125] [LNIND 1998 SC 1125] [LNIND 1998 SC 1125]. 44 (1996) 11 SCC 253 [LNIND 1996 SC 1628] [LNIND 1996 SC 1628] [LNIND 1996 SC 1628], 256 (para 8): AIR 1997 SC 93 [LNIND 1996 SC 1628] [LNIND 1996 SC 1628] [LNIND 1996 SC 1628]. 45 Luga Bay Shipping Corporation v. Board of Trustees of the Port of Cochin, (1997) 1 SCC 631 [LNIND 1996 SC 1960] [LNIND 1996 SC 1960] [LNIND 1996 SC 1960], 639 (para 14): AIR 1997 SC 544 [LNIND 1996 SC 1960] [LNIND 1996 SC 1960] [LNIND 1996 SC 1960]. 46 Visakhapatnam Port Trust v. Ram Bahadur Thakur Pvt. Ltd., (1997) 4 SCC 582 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702] [LNIND 1997 SC 1702], 603 (para 15): AIR 1997 SC 1057 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702] [LNIND 1997 SC 1702]. See also M.R.F. Ltd. v. Inspector of Kerala Govt. (1998) 8 SCC 227, 236 (paras 23 and 24): AIR 1999 SC 188. 47 State of U.P. v. Girish Bihari, (1997) 4 SCC 362 [LNIND 1997 SC 264] [LNIND 1997 SC 264] [LNIND 1997 SC 264], 366 (para 7): AIR 1997 SC 1354 [LNIND 1997 SC 264] [LNIND 1997 SC 264] [LNIND 1997 SC 264]. See also Calcutta Municipal Corporation v. Sujit Baran Mukherjee, (1997) 11 SCC 463 [LNIND 1997 SC 265] [LNIND 1997 SC 265] [LNIND 1997 SC 265], 466 (para 7); J. Shashidhara Prasad v. Governor of Karnataka, (1999) 1 SCC 422, 428-29 (paras 12 and 13): AIR 1999 SC 849; Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154 [LNIND 1992 SC 793] [LNIND 1992 SC 793] [LNIND 1992 SC 793]; Shankarran Dash v. U.O.I., (1991) 3 SCC 47 [LNIND 1991 SC 247] [LNIND 1991 SC 247] [LNIND 1991 SC 247]: AIR 1994 SC 1484 [LNIND 1992 SC 878] [LNIND 1992 SC 878] [LNIND 1992 SC 878]. Stricture by Court against administrative authority, P.K. Dave v. People Union of Civil Liberties, AIR 1996 SC 2166 [LNIND 1996 SC 982] [LNIND 1996 SC 982] [LNIND 1996 SC 982]: (1996) 4 SCC 262; ad hoc appointment, promoted, reverted, no rights acquired, no question of giving opportunity, Punjab State Electricity Board v. Baldev Singh, (1998) 5 SCC 450 [LNIND 1998 SC 421] [LNIND 1998 SC 421] [LNIND 1998 SC 421], 451 (para 4): AIR 1999 SC 1596 [LNIND 1998 SC 421] [LNIND 1998 SC 421] [LNIND 1998 SC 421]. See also Mohd. Sartaj v. State of U.P., (2006) 2 SCC 315 [LNIND 2006 SC 26] [LNIND 2006 SC 26] [LNIND 2006 SC 26], 325-26 (para 19); Panchayat Varga Sharmajivi Samudaik Sahakari Khedut Co-operative Society v. Haribhai Mevabhai, (1996) 10 SCC 320 [LNIND 1996 SC 1077] [LNIND 1996 SC 1077] [LNIND 1996 SC 1077], 325-26 (para 14): AIR 1996 SC 2578 [LNIND 1996 SC 1077] [LNIND 1996 SC 1077] [LNIND 1996 SC 1077]; Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 [LNIND 2006 SC 800] [LNIND 2006 SC 800] [LNIND 2006 SC 800], 655 (para 20). 48 State of M.P. v. Mahesh Kumar, (1997) 6 SCC 95 [LNIND 1997 SC 744] [LNIND 1997 SC 744] [LNIND 1997 SC 744], 99 (para 8): AIR 1997 SC 2710 [LNIND 1997 SC 744] [LNIND 1997 SC 744] [LNIND 1997 SC 744]. 49 Coal India Ltd. v. Continental Transport and Construction Corporation, (1997) 9 SCC 258 [LNIND 1997 SC 490] [LNIND 1997 SC 490] [LNIND 1997 SC 490], 270 (para 18): AIR 1997 SC 2116 [LNIND 1997 SC 490] [LNIND 1997 SC 490] [LNIND 1997 SC 490]. 50 (1997) 11 SCC 121 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685], 130 (para 10): AIR 1997 SC 152 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685]. 51 (1997) 11 SCC 121 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685], 130 (para 10): AIR 1997 SC 152 [LNIND 1996 SC 1685] [LNIND 1996 SC 1685] [LNIND 1996 SC 1685]. 52 Nair Service Society v. M.K. Gopalakrishnan Nair, (1997) 11 SCC 491, 494-95 (paras 12 to 14), relying on Jankinath Sarangi v. State of Orissa, (1969) 3 SCC 392 [LNIND 1969 SC 115] [LNIND 1969 SC 115] [LNIND 1969 SC 115], 394. Allegation and charges admitted, opportunity to show cause not necessary, Dharmarathmakara Raibahadur Arcot Ramaswamy

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Mudaliar Educational Institution v. Educational Appellate Tribunal, (1999) 7 SCC 332 [LNIND 1999 SC 724] [LNIND 1999 SC 724] [LNIND 1999 SC 724], 338 (para 8): AIR 1999 SC 3219 [LNIND 1999 SC 724] [LNIND 1999 SC 724] [LNIND 1999 SC 724]. See also Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337 [LNIND 2005 SC 456] [LNIND 2005 SC 456] [LNIND 2005 SC 456]. 53 Union of India v. Mustafa & Najibai Trading Co., (1998) 6 SCC 79 [LNIND 1998 SC 611] [LNIND 1998 SC 611] [LNIND 1998 SC 611], 99-100 (paras 35 and 36): AIR 1998 SC 2526 [LNIND 1998 SC 611] [LNIND 1998 SC 611] [LNIND 1998 SC 611]. 54 Union of India v. O. Chakradhar, (2002) 3 SCC 146 [LNIND 2002 SC 130] [LNIND 2002 SC 130] [LNIND 2002 SC 130], 151 (para 8): AIR 2002 SC 1119 [LNIND 2002 SC 130] [LNIND 2002 SC 130] [LNIND 2002 SC 130]. 55 State of Karnataka v. Saveen Kumar Shetty, (2002) 3 SCC 426 [LNIND 2002 SC 146] [LNIND 2002 SC 146] [LNIND 2002 SC 146], 431 (paras 15 and 16): AIR 2002 SC 1248 [LNIND 2002 SC 146] [LNIND 2002 SC 146] [LNIND 2002 SC 146]. 56 Santosh Kumar v. State of A.P., (2003) 5 SCC 511 [LNIND 2003 SC 1222] [LNIND 2003 SC 1222] [LNIND 2003 SC 1222], 515 (para 6): AIR 2003 SC 4036 [LNIND 2003 SC 1222] [LNIND 2003 SC 1222] [LNIND 2003 SC 1222]. 57 R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105, 114 (para 13): AIR 2004 SC 1469. Fraudulently obtaining OBC certificate to seek appointment, successful, inquiry, opportunity, cancelled, no further opportunity, Vice-Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, (2004) 6 SCC 325, 328-29 (para 11), relying on Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319and Derry v. Peek, (1889) 14 AC 337: (1886-90) All ER Rep 1: 58 LJCH 864: 61 LT 265 (HL). 58 Ram Preeti Yadav v. U.P. Board of High School and Intermediate Educaton, (2003) 8 SCC 311 [LNIND 2003 SC 741] [LNIND 2003 SC 741] [LNIND 2003 SC 741], 318 (para 20), relying on Madhyamic Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti, (1998) 9 SCC 236. 59 Union of India v. Janardhan Debanath, (2004) 4 SCC 245 [LNIND 2004 SC 214] [LNIND 2004 SC 214] [LNIND 2004 SC 214], 251-52 (para 14): AIR 2004 SC 1632 [LNIND 2004 SC 214] [LNIND 2004 SC 214] [LNIND 2004 SC 214]. 60 (2005) 3 SCC 674 [LNIND 2005 SC 283] [LNIND 2005 SC 283] [LNIND 2005 SC 283], 681-82 (para 12). 61 (2005) 3 SCC 674 [LNIND 2005 SC 283] [LNIND 2005 SC 283] [LNIND 2005 SC 283], 681-82 (para 12). 62 Indian Overseas Bank v. Indian Overseas Bank Officers' Association, (2001) 9 SCC 540 [LNIND 2001 SC 2221] [LNIND 2001 SC 2221] [LNIND 2001 SC 2221], 543-44 (para 6): AIR 2001 SC 3025 [LNIND 2001 SC 2297] [LNIND 2001 SC 2297] [LNIND 2001 SC 2297], relying on N. Kalindi v. Tata Locomotive & Engg. Co. Ltd., AIR 1960 SC 914 [LNIND 1960 SC 95] [LNIND 1960 SC 95] [LNIND 1960 SC 95]: (1960) 2 LLJ 228; Dunlop Rubber Co. (India) Ltd. v. Workmen, AIR 1965 SC 1392 [LNIND 1964 SC 318] [LNIND 1964 SC 318] [LNIND 1964 SC 318]: (1965) 1 LLJ 426; Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115 [LNIND 1992 SC 910] [LNIND 1992 SC 910] [LNIND 1992 SC 910]: 1993 SCC (L&S) 360; Bharat Petroleum Corpn. Ltd. v. Maharashtra General Kamgar Union, (1999) 1 SCC 626 [LNIND 1998 SC 1100] [LNIND 1998 SC 1100] [LNIND 1998 SC 1100]: 1999 SCC (L&S) 361: AIR 1999 SC 401 [LNIND 1998 SC 1100] [LNIND 1998 SC 1100] [LNIND 1998 SC 1100]. 63 BALCO Employees' Union (Regd.) v. Union of India, (2002) 2 SCC 350, 363 (para 48), relying on State of Haryana v. Des Raj Sangar, (1976) 2 SCC 844 [LNIND 1975 SC 515] [LNIND 1975 SC 515] [LNIND 1975 SC 515]: 1976 SCC (L&S) 336. 64 R. Sulochana Devi v. D.M. Sujatha, (2005) 9 SCC 335 [LNIND 2004 SC 1027] [LNIND 2004 SC 1027] [LNIND 2004 SC 1027], 347-48 (para 22). 65 Union of India v. Indian Jute Mills Association, (2005) 10 SCC 69 [LNIND 2005 SC 469] [LNIND 2005 SC 469] [LNIND 2005 SC 469], 76 (para 24): AIR 2005 SC 2534 [LNIND 2005 SC 469] [LNIND 2005 SC 469] [LNIND 2005 SC 469]; following Dalmia Cement (Bharat) Ltd. v. U.O.I., (1996) 10 SCC 104 [LNIND 1996 SC 2555] [LNIND 1996 SC 2555] [LNIND 1996 SC 2555]. 66 Suresh Chandra Verma (Dr.) v. Chancellor, Nagpur University, (1990) 4 SCC 55 [LNIND 1990 SC 441] [LNIND 1990 SC 441] [LNIND 1990 SC 441] (para 16): AIR 1990 SC 2023 [LNIND 1990 SC 441] [LNIND 1990 SC 441] [LNIND 1990 SC 441]; Karnataka Public Service Commission v. B.M. Vijaya Shankar, (1992) 2 SCC 206 [LNIND 1992 SC 164] [LNIND 1992 SC 164] [LNIND 1992 SC 164] (paras 4 and 5): AIR 1992 SC 920 [LNIND 1992 SC 179] [LNIND 1992 SC 179] [LNIND 1992 SC 179]and State of M.P. v. Shyma Pardhi, (1996) 7 SCC 118 [LNIND 1995 SC 1127] [LNIND 1995 SC 1127] [LNIND 1995 SC 1127] (paras 4 and 5): AIR 1996 SC 523 [LNIND 1995 SC 1068] [LNIND 1995 SC 1068] [LNIND 1995 SC 1068], as cited in State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, 684 (para 47). 67 State of Orissa v. Md. Illiyas, (2006) 1 SCC 275 [LNIND 2005 SC 918] [LNIND 2005 SC 918] [LNIND 2005 SC 918], 280-81 (para 6). 68 Chandra Deo Gautam v. State of U.P., JT 2000 (10) SC 199: 2000 (2) LLJ 1639. 69 Municipal Committee, Sirsa v. Munshi Ram, AIR 2005 SC 792 [LNIND 2005 SC 116] [LNIND 2005 SC 116] [LNIND 2005 SC 116]: (2005) 2 SCC 382. See also Rajasthan State Road Transport Corporation v. Zakir Husain, (2005) 7 SCC 447 [LNIND 2005 SC 623] [LNIND 2005 SC 623] [LNIND 2005 SC 623]; State of U.P. v. Kaushal Kishore Shukla, JT 1991(1) SC 108 [LNIND 1991 SC 18] [LNIND 1991 SC 18] [LNIND 1991 SC 18]: (1991) 1 SCC 691; Registrar, High Court of Gujarat, JT 2004 (9) SC 602 [LNIND 2004 SC 1145] [LNIND 2004 SC 1145] [LNIND 2004 SC 1145]: 2004 (9) Scale 478.

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70 Chandigarh Administration v. Namit Kumar, (2004) 8 SCC 446 [LNIND 2004 SC 999] [LNIND 2004 SC 999] [LNIND 2004 SC 999], 452 (para 20). 71 Syndicate Bank v. R. Veeranna, (2003) 2 SCC 15 [LNIND 2002 SC 841] [LNIND 2002 SC 841] [LNIND 2002 SC 841], 18 (para 7): AIR 2003 SC 2122 [LNIND 2002 SC 841] [LNIND 2002 SC 841] [LNIND 2002 SC 841]. 72 Union of India v. Rati Pal Saroj, (1998) 2 SCC 574 [LNIND 1998 SC 141] [LNIND 1998 SC 141] [LNIND 1998 SC 141], 577-78 (para 6): AIR 1998 SC 1117 [LNIND 1998 SC 141] [LNIND 1998 SC 141] [LNIND 1998 SC 141]. 73 Sadhan Kumar Goswami v. Union of India, JT 1996 (10) SC 236: 1996 (8) Scale 295.

Otherwise sufficient compliance of hearing--illustrative cases.--In Haryana Warehousing Corporation v. Ram Avtar, 74 a decision was taken not to allow an employee to cross his efficiency bar on the basis of an adverse entry recorded in his Annual Confidential Report which was communicated to him and objections thereto were filed by him. They were considered and rejected. It was held to be sufficient compliance of the principle of natural justice of affording an opportunity of hearing.75 The Cantonment Board issued a notice under Section 85 of the Cantonments Act, 1924 to a party to demolish his unauthorised construction but he carried out further construction in spite of having received the notice. However, thereafter notice under Section 256of Act was issued and ultimately the second notice for demolition was issued under Section 185of which he submitted his reply that he had done it bona fide and would not demolish it and requested the authority to reconsider the matter and withdraw the notice. The High Court was of the view that an independent inquiry after the notice and the reply thereof was required. The Supreme Court disagreed with the High Court and held that notice of illegal construction having been given and its reply received and considered by the authority, the authority could not be faulted with the principle of natural justice of affording him an opportunity of hearing.76 Under the M.P. Excise Act 2 of 1915licence for liquor shops was to be given to the bidder of the contract and such a licensee was required to pay the contract sum in monthly instalments in default of which the licence could be terminated. In the instant case, the contractor failed to pay the monthly instalments for two months and he was given notice to explain as to why his licence be not cancelled but he did not avail of the opportunity of personal hearing. Thereafter notification was issued for reauction and was published in the newspaper. Notice was issued to the contractor for payment of arrears. The contractor filed a writ petition submitting that before cancelling the licence he was not given due opportunity as required by Section 31 (1-A)of the Act. The Supreme Court held that while the opportunity to be given should be reasonable, the reasonableness or otherwise of the opportunity given must be judged keeping in view the time frame available. In this case, instalments were payable monthly, hence in default of the same, notice proposing cancellation may follow the default and it cannot be contemplated in a leisurely manner. A realistic view has to be taken while determining the reasonableness of the opportunity. In this case, the notice was given after the default of two months i.e. giving more latitude, hence no fault could be found with the same.77 The Deputy Director of the tuberculosis eradication scheme of the Health Department of the Govt. of Bihar appointed about 6000 to 7000 persons as daily-rated Class III and Class IV employees without any written orders and without following the procedure of recruitment contained in various instructions issued by the Govt. The matter came up before the High Court which directed for the constitution of a Screening Committee which sought to serve notice on the agitating employees to appear and justify their appointments. The officer who went to the Tuberculosis Centre at Patna to serve the notices was manhandled resulting in an ugly law and order situation. In consequence, notices were published on two different dates in different newspapers inviting submission of claims by the employees together with supporting material justifying their appointments and different dates were given following which about 987 candidates appeared before the Committee and submitted their statements. In the meantime the records were burnt out. The Committee scrutinised the replies and came to a conclusion, in the light of the data supplied by the employees, their say during the personal hearing and the policy and procedure prescribed by the Govt., that all the appointments were invalid and illegal and hence, all the appointments were cancelled. The Apex Court held that of the basic principles of natural justice would not be said to have been violated by the Committee which ultimately took decision on the basis personal hearing given to the employees concerned and after considering what they had to say regarding their appointments. On the facts of the case it could not be said that the principles of natural justice were violated or full opportunity was not given to the employees concerned to have their say in the matter before appointments were recalled and terminated.78 However, a partly dissenting view of B.L. HASARIA, J., in the Division Bench, was that, since the Government could not disclose which were the newspapers in which the notice was published and what was

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their circulation, it could not be presumed that some of the employees who had known that publication, must have informed their colleagues and the news must have spread like a wild fire. It was also noted by him that some of the employees had read only upto Class IV which showed that they were illiterate and not enlightened enough to read newspaper as a habit. He further observed that giving opportunity to show cause having been made through newspapers, could not be said to be adequate and reasonable. However, he did not set aside their termination order, taking the case before the Apex Court as post-decisional hearing.79 In State of T.N. v. A. Gurusamy, 80 the question was whether the SC/ST certificate holder was given an opportunity to establish his case before the authorities cancelled his community certificate obtained by him. The order of the District Collector clearly mentioned that an opportunity was given to him and he himself had examined him. The District Collector does not decide it like a suit. What he does is an enquiry complying with the principles of natural justice. He considered his stand, namely one of the sale deeds in which his status was declared a Kattunaicken but the same was disbelieved by the District Collector before cancellation. It is a self-serving document. The authority had, therefore given an opportunity to him to establish his status and found that certificate previously obtained was wrong and illegal. Accordingly, he cancelled the certificate given to him. A partnership firm was served with notices by the Commissioner of Sales Tax proposing a suo motu revision of the orders passed in respect of its assessment of sales tax for the previous two assessment years. After seeking several adjournments, the firm requested the Commissioner for reasons for issuing the notices which were communicated to it. The firm made its submissions in writing before the Commissioner who considered them. However, the firm did not explain the accounts or the entries appearing in the documents seized earlier by the Vigilance Unit of the department. The Commissioner revised the assessment orders and demanded excess taxes. Before the Apex Court the firm contended that it was not given an opportunity to be heard by the Commissioner. The Apex Court observed that from the facts it was apparent that it was served with two notices, it furnished written submissions which were considered and there was nothing on record to show that it wanted more or had asked for more time, rather it appeared through advocate and submitted the written arguments and then the Commissioner passed a detailed order. Hence, it could not be said that a reasonable opportunity of hearing was not given.81 A small-scale industry, engaged in manufacture and sale of drugs, was registered with the Directorate of Industry (Stores Purchase Section), Kanpur, U.P., as an approved contractor for supply of drugs to the Government departments, certain irregularities came to the notice of the Government and a vigilance inquiry was set up as a result of which criminal prosecution was launched against it. Under such circumstances, the Government served it with a notice to show cause as to why it should not be blacklisted in its dealings with the Government. It replied the show-cause notice and after the expiry of the period for reply of the show-cause notice, the Government passed an order blacklisting the said contractor pending decision of the criminal prosecution. The writ petition challenging the said order before the High Court having been dismissed, it was contended in SLP before the Supreme Court that it was incumbent upon the Government to have supplied the material on which charges against it were based. The Apex Court held that the concerned contractual relationship was not governed by any statutory rules which required that such blacklisting could not be done without giving an opportunity of show-cause. It is true that an order blacklisting an approved contractor results in civil consequences and in such a situation in the absence of statutory rules, the only requirement of law while passing such an order was to observe the principle of audi alteram partem which is one of the facets of the principles of natural justice. The contention that it was incumbent upon the respondent to have supplied the material on the basis of which the charges against the appellant were based, was not the requirement of the principle of audi alteram partem. It was sufficient requirement of law that an opportunity of show-cause was given to the appellant before it was blacklisted. It is not disputed that in the present case, the appellant was given an opportunity to show cause and it did reply to the show-cause which was duly considered by the State Government. The Apex Court was, therefore, of the view that the procedure adopted by the respondent while blacklisting the appellant was in conformity with the principles of natural justice.82 An employee absented from duty even after expiry of his leave period and did not join duty even after repeated reminders/opportunities given to him. His services were dispensed with. The Apex Court held that there was sufficient compliance of the requirements of the principles of natural justice.83 An employee absenting from duty without leave or intimation was sent a show-cause notice by registered post by the enquiry officer which was received by his wife who informed the enquiry officer that he was in custody and could not participate in the proceedings. His services were terminated which was challenged on the ground of violation of the principles of natural. Disagreeing with the Courts below, the Apex Court held that the service of the show-cause notice was valid in law and the wife or any representative of the employee could have

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participated in the proceedings. Hence, there was no violation of the principles of natural justice.84 The persons who are parties in a public interest litigation which had wide publicity can not claim that the judgment is not binding on them and that the case should be reopened.85 Non-compliance of opportunity--illustrative cases.--The claim of an Upper Division Teacher for the status as a Lecturer was acceded to but without any right to arrears of salary. After his retirement he claimed the arrears of his salary from 1962 to 1983 which was turned down being belated. Subsequently he filed a review petition which was allowed on merits but without affording an opportunity of hearing to the State. The Supreme Court held that the State ought to have been given an opportunity of hearing and directed the matter to be decided afresh by the Tribunal.86 Constables in the State Armed Police of West Bengal were recruited on the basis of the list furnished by the employment exchange. Subsequently, they were discharged from service on the ground that the said list was fake without affording them a reasonable opportunity of representation in the departmental inquiry to be conducted and appropriate orders with reasons in support thereof to be given the order discharging them was set aside.87 The Revenue contended that concerned product was a "preparation with a basis of starch", hence it fell outside the purview of the exemption granted by the relevant exemption notification. The Tribunal came to the conclusion the said product was not so based. Hence, the producer's appeal should have been allowed. Instead the appeal was dismissed holding that the product was based on "flour" which fell outside the purview of the exemption notification. The Supreme Court held that it was beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the producer had never been required to meet.88 The Registrar of the Kerala Co-operative Societies came to the conclusion that there was a large-scale malpractice in the recruitment process by a co-operative bank without affording opportunity of show-cause to the affected parties. He simply issued notice to the bank making a bold allegation that "the marks awarded and the consolidated marks recorded are corrected and mulitated", but did not give specific details. He also took into account the report of the Kerala Public Men's (Corruption, Investigation and Enquiries) Commission which had directed for a detailed enquiry but did not supply its copy to the bank. He, thus, brushed aside the principles of natural justice. It was held that inference of malpractice was improperly made.89 In a ceiling case, a party had indicated a certain land belonging to him, being in excess, to be surrendered. Accordingly, the Taluk Land Board determined the excess area to be surrendered by him. Thereafter, another persons claimed that the land in question belonged to her as she was a co-owner as both of them had purchased the land by one sale deed. In the circumstances of the case, the Apex Court held that, if the claimant was not a party to the proceedings before the Taluk Land Board, she would not be bound by the observations and findings of the Board i.e she, being a party not heard, cannot be bound.90 The facts and circumstances of the instant case show that no proper procedure was followed by the Bank in removing the employees from service. The High Court in contempt jurisdiction should not have passed an order of removal of the employees from service without there being a proper enquiry. The Bank should have conducted a proper enquiry to find out the irregularities, if any, committed in the process of selection of candidates and based on that report alone the candidates who were already appointed could have been removed from service. The candidates should have been given reasonable opportunity of being heard before their removal from service. Their removal from service is without following proper procedure and it amounted to violation of the principles of natural justice.91 A query as to inter se seniority of two lecturers was made to the Regional Director of Education who opined in favour of one of them without notice to the other party. Hence, the order, being in violation of the principles of natural justice, was held to be non est.92 The National Council for Teacher Education had permitted an educational institution the admission of only 120 B.Ed. students which was subsequently reduced to only 40. However, the institution admitted 140 students and challenged the order of reduction. The Single Judge quashed the order but the Division Bench set aside the order of the Single Judge. However, the degree of one of the students who had, in the meantime succeeded in the examination and obtained the same and was denied hearing during the appeal, was not allowed to be cancelled but no benefit was to be given to those students who had not approached the Court.93 A constable was driving a vehicle which met an accident and the State had to pay compensation to the affected party. However, the State proceeded to recover the amount of compensation from the constable's salary though he was not arrayed as a party in the claim case and the departmental inquiry did not find him guilty of rash and negligent driving. It was held that he was not liable to make good the amount paid by the State.94

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In a case before the Special Bench of the Income Tax Appellate Tribunal, the Income Tax Department had sought adjournments on 11 occasions and sought for another adjournment as the designated officer to argue the matter fell ill which the Bench did not allow. Hence, the case was argued by another officer who was appointed to assist the designated officer. Since the case could not be argued by the designated officer, the Department sought permission of the Bench to file written submission to supplement the arguments which also was not allowed,. The Supreme Court agreed with the view taken by the High Court that in the peculiar facts of the case, the Tribunal was not justified in insisting on hearing the matter and even not taking the written submission on record and it had thus adopted an unjustified stand which was against the principles of natural justice. However, the Apex Court observed that the Department had not only full opportunity to put forward its case before the High Court in the writ petitions but also succeed therein, hence the question of violation of principles of natural justice by the Tribunal paled into insignificance.95 Charge-sheet was served and explanation to the charges of misappropriation was called for but the delinquent employee did not respond despite several letters. Consequently, he was treated to be guilty and was dismissed from service which was challenged in High Court which set aside the dismissal order holding that the employee was not supplied with documents, therefore the action was vitiated by error of law. The Apex Court held that the High Court was not justified in taking that view. It observed that the Govt. had conducted no inquiry which the Govt. should do ex parte as the employee was not responding. The disciplinary authority after taking the inquiry report into consideration, in case of charge having been proved, should call upon him to explain why the proposed action be not taken against him and, if he submits any explanation the same should be taken into consideration and appropriate order be passed accordingly and till then he must be deemed to be under suspension.96 In Bharat Coking Coal Ltd. v. Babulal, 97 the services of two senior employees were terminated on the charge of dereliction duty under certain rule which stood annulled by a decision of the Supreme Court. The Apex Court directed that a time bound inquiry be conducted and an opportunity be given to them before taking any disciplinary action against them and till then they be directed to be deemed to be under suspension. Sub-section (2) of Section 4-Aof the Bihar Agricultural Produce Markets Act 16 of 1960 provides that the State shall not order the deletion of any of the items of the Schedule of the Act without giving an opportunity for hearing to the affected parties but for addition of an item of agricultural produce in the Schedule in the exercise of power under Section 39of the Act, no hearing has been contemplated. Section 4-A(2)for the first time circumscribed the power of deletion of a Scheduled item in exercise of power under Section 39of the Act without affording any hearing to the party aggrieved. Before the introduction of Section 4-A, even for deletion of an item from the Schedule in exercise of power under Section 39, no hearing was necessary. The Supreme Court held that the legislature is quite competent to make provision for hearing only in case of deletion of a Scheduled item without making such provision for inclusion of an item in the Schedule. It was observed that whether an item deserves to be included in the Schedule so that control under the Act may be brought in respect of such item, is a matter of decision of the State Govt. according to its perception to the felt need for such inclusion. But when the State Govt. has felt the need of inclusion in the Schedule but later on intends to change its mind by deleting the item from the Schedule, the legislature in its wisdom has thought it fit that before deletion, a second thought is desirable by noting the objections that might be given by a party aggrieved. The Supreme Court was of the view that Section 4-Ais within the legislative competence and is well informed by reasons.1 An employee was dismissed from service on the ground the he had obtained admission to secure National Trade Certificate by fraudulently altering marks in his marksheet resulting in cancellation of the NT Certificate itself by the competent authority. He contended that his certificate was cancelled without affording him an opportunity of hearing, hence the order of his dismissal was invalid. The Apex Court held that it was for him to move the competent Court for getting the order of cancellation of his NT Certificate set aside in absence of which it was permissible for the disciplinary authority to take into account the fact of cancellation of his certificate.2 A bank employee was removed from service. After unsuccessfully approaching the appellate authority, reviewing authority and the High Court, he contended before the Supreme Court that the Enquiry Officer had not afforded him reasonable opportunity of hearing to adduce defence evidence and that the appellate authority had committed error in disposing of the appeal without recording reasons. The Apex Court held that such a plea must have been raised before such authorities. However, the Court found that reasonable opportunity was afforded to him.3

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When a statute confers a right which is in conformity with the principles of natural justice, the same cannot be negatived by a Court on an imaginary ground that there is likelihood of an unmanageable hearing before the forum concerned.4

74 (1996) 2 SCC 98 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118], 102 (para 12): AIR 1996 SC 1081 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118], See also U.O.I. v. P.D. Yadav, (2002) 1 SCC 405 [LNIND 2001 SC 2356] [LNIND 2001 SC 2356] [LNIND 2001 SC 2356], 427 (para 29); M. Madan Mohan Rao v. U.O.I., (2002) 6 SCC 348, 359 (para 29): AIR 2002 SC 2647; LIC of India v. Hansraj, 2005 (9) Scale 538; J.A. Naiksatam v. Prothonotary & Senior Master, High Corut of Bombay, (2004) 8 SCC 653 [LNIND 2004 SC 1051] [LNIND 2004 SC 1051] [LNIND 2004 SC 1051]; Appointing Authority, G.B.P. Spl. S.I. v. R.K. Singh, 2004 (7) Scale 371: 2004 (6) SLT 174; Entry Tax Officer v. U.O.I., (2001) 9 SCC 350; R.S. Saini v. State of Punjab, (1999) 8 SCC 90 [LNIND 1999 SC 786] [LNIND 1999 SC 786] [LNIND 1999 SC 786], 96 (para 18): AIR 1999 SC 3579 [LNIND 1999 SC 786] [LNIND 1999 SC 786] [LNIND 1999 SC 786]. 75 (1996) 2 SCC 98 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118], 102 (para 12), See also U.O.I. v. P.D. Yadav, (2002) 1 SCC 405 [LNIND 2001 SC 2356] [LNIND 2001 SC 2356] [LNIND 2001 SC 2356], 427 (para 29); M. Madan Mohan Rao v. U.O.I., (2002) 6 SCC 348, 359 (para 29); LIC of India v. Hansraj, 2005 (9) Scale 538; J.A. Naiksatam v. Prothonotary & Senior Master, High Corut of Bombay, (2004) 8 SCC 653 [LNIND 2004 SC 1051] [LNIND 2004 SC 1051] [LNIND 2004 SC 1051]; Appointing Authority, G.B.P. Spl. S.I. v. R.K. Singh, 2004 (7) Scale 371: 2004 (6) SLT 174; Entry Tax Officer v. U.O.I., (2001) 9 SCC 350; R.S. Saini v. State of Punjab, (1999) 8 SCC 90 [LNIND 1999 SC 786] [LNIND 1999 SC 786] [LNIND 1999 SC 786], 96 (para 18). 76 Cantonment Board v. Mohanlal, (1996) 2 SCC 23 [LNIND 1996 SC 10] [LNIND 1996 SC 10] [LNIND 1996 SC 10], 24 (paras 2 and 3): AIR 1996 SC 1586 [LNIND 1996 SC 10] [LNIND 1996 SC 10] [LNIND 1996 SC 10]. See also Rashtriya Ispat Nigam Ltd. v. Verma Transport Co., (2006) 7 SCC 275 [LNIND 2006 SC 1439] [LNIND 2006 SC 1439] [LNIND 2006 SC 1439], 291 (para 44). 77 Rajendras Singh v. State of M.P., (1996) 5 SCC 460, 466 (para 7): AIR 1996 SC 2736. See also Sam Hiring Co. v. A.R. Bhujbal, (1996) 8 SCC 18 [LNIND 1996 SC 89] [LNIND 1996 SC 89] [LNIND 1996 SC 89], 20 (paras 5 and 6): AIR 1996 SC 3008 [LNIND 1996 SC 89] [LNIND 1996 SC 89] [LNIND 1996 SC 89]; Sohan Lal Gupta v. Asha Devi Gupta, (2003) 7 SCC 492 [LNIND 2003 SC 730] [LNIND 2003 SC 730] [LNIND 2003 SC 730], 509-10 (para 43): AIR 2004 SC 856 [LNIND 2003 SC 730] [LNIND 2003 SC 730] [LNIND 2003 SC 730]; Renusagar Power Co. Ltd. v. General Electric Co., 1994 Supp (1) SCC 644 [LNIND 1984 SC 384] [LNIND 1984 SC 384] [LNIND 1984 SC 384]: AIR 1994 SC 860; N.K. Prasada v. Govt. of India, (2004) 6 SCC 299 [LNIND 2004 SC 472] [LNIND 2004 SC 472] [LNIND 2004 SC 472], 308 (paras 24 and 25): AIR 2004 SC 2538 [LNIND 2004 SC 472] [LNIND 2004 SC 472] [LNIND 2004 SC 472]; V. Srinivas v. Machines and Machine tools P. Ltd. (2006) 4 SCC 348 [LNIND 2006 SC 213] [LNIND 2006 SC 213] [LNIND 2006 SC 213]; U.P. State Textile Corporation v. P.C. Chaturvedi, (2005) 8 SCC 211 [LNIND 2005 SC 757] [LNIND 2005 SC 757] [LNIND 2005 SC 757]. 78 Ashwani Kumar v. State of Bihar, (F.B.) (1997) 2 SCC 1 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146], 22 (para 17): AIR 1997 SC 1628 [LNIND 1996 SC 2146] [LNIND 1996 SC 2146] [LNIND 1996 SC 2146]. See also Shiv Sagar Tiwari v. U.O.I., (1997) 1 SCC 444 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], 460 (paras 46-49). 79 Ashwani Kumar v. State of Bihar (D.B), (1996) 7 SCC 577 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137], 611 (paras 79 and 80): AIR 1996 SC 2833 [LNIND 1995 SC 1137] [LNIND 1995 SC 1137] [LNIND 1995 SC 1137]. 80 (1997) 3 SCC 542 [LNINDORD 1997 SC 91] [LNINDORD 1997 SC 91] [LNINDORD 1997 SC 91], 544 (para 3): AIR 1997 SC 1199 [LNINDORD 1997 SC 91] [LNINDORD 1997 SC 91] [LNINDORD 1997 SC 91]. 81 State of Orissa v. Krishan Stores, (1997) 3 SCC 246 [LNIND 1997 SC 86] [LNIND 1997 SC 86] [LNIND 1997 SC 86], 253 (para 16): AIR 1997 SC 871 [LNIND 1997 SC 86] [LNIND 1997 SC 86] [LNIND 1997 SC 86]. See also Shiv Kumar Tiwari v. Jagat Narain Rai, (2001) 10 SCC 11 [LNIND 2001 SC 2624] [LNIND 2001 SC 2624] [LNIND 2001 SC 2624]: AIR 2002 SC 211 [LNIND 2001 SC 2624] [LNIND 2001 SC 2624] [LNIND 2001 SC 2624]. 82 Grosons Pharmaceuticals (P) Ltd. v. State of U.P., (2001) 8 SCC 604 [LNIND 2001 SC 1942] [LNIND 2001 SC 1942] [LNIND 2001 SC 1942], 606 (para 2): AIR 2001 SC 3707 [LNIND 2001 SC 1942] [LNIND 2001 SC 1942] [LNIND 2001 SC 1942]. 83 Viveka Nand Sethi v. Chairman, J.&K. Bank Ltd., (2005) 5 SCC 337 [LNIND 2005 SC 456] [LNIND 2005 SC 456] [LNIND 2005 SC 456]. See also Prem Nath v. Kapildeo Singh, 1995 Supp. (3) SCC 717; U.O.I. v. Ram Phal, AIR 1996 SC 1500 [LNIND 1996 SC 2883] [LNIND 1996 SC 2883] [LNIND 1996 SC 2883]: (1996) 7 SCC 546. 84 Swaraj Tractors Division v. Raghbir Singh, (2004) 13 SCC 50 [LNIND 2002 SC 1527] [LNIND 2002 SC 1527] [LNIND 2002 SC 1527], 51 (para 6). 85 Gopi Aqua Farms v. Union of India, AIR 1997 SC 3519 [LNIND 1997 SC 1019] [LNIND 1997 SC 1019] [LNIND 1997 SC 1019]: (1997) 7 SCC 577.

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86 State of M.P. v. Sadashiv Zamindar, (1996) 4 SCC 558 [LNINDORD 1996 SC 190] [LNINDORD 1996 SC 190] [LNINDORD 1996 SC 190], 559 (para 5): AIR 1997 SC 115 [LNINDORD 1996 SC 190] [LNINDORD 1996 SC 190] [LNINDORD 1996 SC 190]. Dismissal, no show-cause notice, vitiated, U.O.I. v. Madhusudan Prasad, (2004) 1 SCC 43 [LNIND 2003 SC 909] [LNIND 2003 SC 909] [LNIND 2003 SC 909], 45 (para 5): AIR 2004 SC 977 [LNIND 2003 SC 909] [LNIND 2003 SC 909] [LNIND 2003 SC 909]; no opportunity prior to confiscation of seized timber, vehicle and sawmill, order not sustainable, Shankarlal v. State of Maharashtra, (2005) 12 SCC 282 (para 3); no show-cause notice, order set aside, Amrit Foods v. CCE, (2005) 13 SCC 419, 421 (para 5); opportunity of hearing of given, Kanpur Development Authority v. Mahabir Sahkari Awas Samiti Ltd., (2005) 10 SCC 320; Commissioner of Trade Tax v. Kanhai Ram Thekedar, AIR 2005 SC 3033 [LNIND 2005 SC 442] [LNIND 2005 SC 442] [LNIND 2005 SC 442]: (2005) 4 SCC 472; Yasho Rajya Lakshmi v. State of J.&K.., 2001 (4) SLT 381 (1): 2001 (5) Supreme 759; Tin Box Company v. C.I.T., AIR 2001 SC 1391: 2001 (4) Supreme 355; U.O.I. v. Indian Charge Chrome, (1999) 7 SCC 314 [LNIND 2006 SC 1121] [LNIND 2006 SC 1121] [LNIND 2006 SC 1121]; Jaya Devi v. State of Bihar, (1996) 7 SCC 757 [LNIND 1996 SC 153] [LNIND 1996 SC 153] [LNIND 1996 SC 153], 758 (para 5); Nirmal Singh v. State of Haryana, (1996) 6 SCC 126 [LNIND 1996 SC 1278] [LNIND 1996 SC 1278] [LNIND 1996 SC 1278], 128 (para 7): AIR 1996 SC 2759 [LNIND 1996 SC 1278] [LNIND 1996 SC 1278] [LNIND 1996 SC 1278]. 87 Director General of Police v. Mrityunjoy Sarkar, (1996) 8 SCC 280, 281 (para 3): AIR 1997 SC 249. 88 Reckitt & Coalman of India Ltd. v. Collector of Central Excise, (1997) 10 SCC 379, 380 (para 3), reversing Reckitt & Coalman of India Ltd. v. CCE, (1985) 22 ELT 216 (CEGAT). See also General Marketing & Manufacturing Co. Ltd. v. Collector of Customs, 1999 (113) ELT 380; Grauer and Well India Ltd. v. Collector of Central Excise, 1999 (113) ELT 382. 89 Benny T.D. v. Registrar of Cooperative Societies, (1998) 5 SCC 269 [LNIND 1998 SC 528] [LNIND 1998 SC 528] [LNIND 1998 SC 528], 282 (para 20): AIR 1998 SC 2012 [LNIND 1998 SC 528] [LNIND 1998 SC 528] [LNIND 1998 SC 528]. 90 Rosamma Johan v. Taluk Land Board, (1999) 9 SCC 174 (para 3). See also State of Govt. Houseless harijan Employees' Association v. State of Karnataka, (2001) 1 SCC 610 [LNIND 2000 SC 1829] [LNIND 2000 SC 1829] [LNIND 2000 SC 1829], 621 (para 31): AIR 2001 SC 437 [LNIND 2000 SC 1829] [LNIND 2000 SC 1829] [LNIND 2000 SC 1829]. Opportunity wrongfully denied, State of W.B. v. Vishnunarayan & Associates (P) Ltd., (2002) 4 SCC 134 [LNIND 2002 SC 220] [LNIND 2002 SC 220] [LNIND 2002 SC 220]. 91 Harbhajan Singh v. Nawanshahar Central Co-operative Bank Ltd., (2004) 10 SCC 606, 608 (para 7): (2005) 1 LLJ 10. 92 R. Sulochana Devi v. D.M. Sujatha, (2005) 9 SCC 335 [LNIND 2004 SC 1027] [LNIND 2004 SC 1027] [LNIND 2004 SC 1027], 348 (para 23). 93 Sona Ram v. National Council for Teachers Education, JT 2002 (8) SC 515: (2002) 6 SLR 547. 94 State of Punjab v. Harjit Singh, JT 2001 (10) SC 394: (2002) 10 SCC 178. 95 Income Tax Appellate Tribunal v. Dy. Commissioner of Income Tax, (1996) 7 SCC 454 [LNIND 1996 SC 2299] [LNIND 1996 SC 2299] [LNIND 1996 SC 2299], 458 (para 10): AIR 1996 SC 1066. 96 State of U.P. v. T.P. Lal Srivastava, (1996) 10 SCC 702 [LNINDORD 1996 SC 97] [LNINDORD 1996 SC 97] [LNINDORD 1996 SC 97], 703 (para 4). 97 (1996) 10 SCC 295 [LNIND 1996 SC 1167] [LNIND 1996 SC 1167] [LNIND 1996 SC 1167], 296 (paras 5 and 6), following Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]. 1 Sasa Musa Sugar Works v. State of Bihar, (1996) 9 SCC 681 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363], 707 (paras 39 and 40): AIR 1997 SC 188 [LNIND 1996 SC 2363] [LNIND 1996 SC 2363] [LNIND 1996 SC 2363]. 2 G.M. Mines I Neyveli Lignite Corporation Ltd. v. T. Elayaperumal, (1998) 8 SCC 394, 396 (paras 7 and 8): AIR 1999 SC 1545. 3 Deokinandan Sharma v. Union of India, (2001) 5 SCC 340, 344 (para 6): AIR 2001 SC 1767. 4 W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], 736-37 (para 40): AIR 2002 SC 3588 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], relying on Sitaram Sugar Co. Ltd. v. U.O.I., (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152]: AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152].

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M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER X PRINCIPLES OF NATURAL JUSTICE OR FAIRNESS - 2 of 2

CHAPTER X PRINCIPLES OF NATURAL JUSTICE OR FAIRNESS (a) Oral or personal hearing Oral or personal hearing is not regarded as an inevitable or indispensable ingredient of natural justice in all cases. It is not regarded as essential that in every case there should be an oral or personal hearing. Natural justice does not necessarily predicate a personal hearing unless the context requires otherwise.5 Of course, an oral hearing is the best and the most effective form of hearing but the Courts recognise that the Administration cannot give such a hearing in all cases because it is time consuming and expensive. So, oral hearing is not as yet a universal rule in adjudicatory proceedings by administrative bodies and the Courts accept that submission of written explanation or representation may be accepted as a substitute for oral hearing, and an adequate compliance with the natural justice requirement, in many situations. Many a time hearing may be held through a written representation by the concerned person. Whether the opportunity should be by written representation or personal hearing depends upon the facts of each case. What, however, the Courts insist upon is that the person affected should have an opportunity of adequately meeting the case against him and of presenting his case, and that this may be achieved through written memorandum and explanation and not necessarily through an oral hearing. If this minimum does not take place, then the principles of natural justice are violated. Even when a statutory provision uses the words "an opportunity of making a representation against the order proposed" must be given to the concerned party, it does not necessarily involve an oral hearing. The concerned person is entitled to a show cause notice and he may make a written representation before the order is made against him.6 Personal hearing has been held to be not necessary, inter alia, in the following cases: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x)

(xi)

by the President of India while determining the dispute about the age of a High Court Judge;7 by the Government of India in appeal against an order of confiscation of goods said to have been illegally imported;8 by a disciplinary authority at the final stage of decision-making after hearing by an enquiry officer;9 by the Central Government in revision proceedings against refusal to give a mining lease under the Mineral Concession Rules, 1960;10 by the State Government in appeal under the Hyderabad Abolition of Inams and Cash Grant Act, 1954;11 by the Coal Board while considering an application for opening or reopening a mine under the Coal Mines (Conservation and Safety) Act, 1952, and the rules made thereunder;12 by the government while superseding a municipality;13 by the Deputy Registrar while superseding a co-operative society;14 by the government while exercising the power of revision over the order of the registrar of co-operative societies;15 Under S. 60(1)of the Motor Vehicles Act, 1939, before cancellation of a stage carriage permit by the transport authority on the ground of breach of any of its conditions or unauthorised use, "an opportunity to furnish explanation must be given" to the permit holder. The Madras High Court ruled that S. 60(1)did not contemplate a personal hearing. The Court pointed out that under the Act different procedures had been/laid down for different actions but, only in some cases, an opportunity for personal hearing had been mandated. S. 60(1)only contemplates an opportunity for explanation and not personal hearing for the permit holder.16 Under the M.P. Cinemas (Regulation) Act, 1952, and the rules made thereunder, before

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(xii)

(xiii)

granting a cinema licence, the licensing authority is to invite objections from the public. The Supreme Court expressed a doubt whether hearing of the objections was to be according to the principles of natural justice, but, in any case, the Court was categorical that no personal hearing to each objector was envisaged. The reason is simple. The number of objectors may be large and it may not be possible to personally hear each of them.17 A Court--martial involves three stages: (a) trial by the Court-martial; (b) confirmation of the sentence passed by a Court-martial, and (c) there may be a post-confirmation review of the sentence if the person concerned files a review petition for the purpose. A Court--martial acts according to the procedural rules made under the Act and the principles of natural justice and gives a personal hearing to the officer charged.18 But the Supreme Court has ruled that the concerned authority is not required to give a personal hearing to the officer concerned at stages (b) and (c).19 While the President is exercising his power under Art. 72to pardon a person sentenced to death, the condemned person cannot insist on a personal hearing for presenting oral arguments before the President. "The manner of consideration of the petition lies within the discretion of the President".20

But there may be circumstances in a case where fairness may dictate an oral hearing. Where complex and technical questions of law or fact are involved, oral hearing may be necessary. Where oral evidence has to be taken from witnesses, a personal hearing is a must. The Supreme Court has underlined the significance of a personal hearing in Travancore Rayons v. U.O.I. 21 The main question in the case was whether a product of the company was subject to an excise duty. The company argued that the product was not dutiable. Passing through various stages, the matter ultimately reached the Government of India by way of appeal acting in a quasi-judicial capacity. The government rejected the company's contentions without giving it an oral hearing. The company then appealed to the Supreme Court. The Court criticised the procedure of disposing of the appeal by the government without giving the appellant company a personal hearing as the matter raised complex questions. The Court emphasized that even though the relevant rules do not require that personal hearing be given in a matter yet if in appropriate cases "where complex and difficult questions requiring familiarity with technical problems are raised, if personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievances of the citizen." The Supreme Court criticised the fact that the government had decided the matter without giving personal hearing to the appellant company." In this case, the government order was really quashed on the ground that it was not a speaking order,22 but in its order remanding the case to the government for disposal, the Court did express the view that "having regard to the complicated and technical questions involved," the Central Government may be "well-advised to give an oral hearing to the appellant company". A significant point to note is that the Supreme Court criticised the lack of personal hearing by the government even though the collector, from whom the government was hearing the appeal, had given a personal hearing to the appellant company. In determining the question of Indian citizenship, and passing an order of deportation against a person on account of her not being an Indian citizen, personal hearing was held to be necessary.23 In another case, where the question was that of cancellation of a liquor licence involving heavy financial loss to the licensee, the Court ruled that if the licensee raised controversial issues of fact and asked for oral hearing, it must be granted to him.24 Personal hearing is also necessary when disciplinary action is envisaged against a professional person by the concerned professional body. Thus, in Ratna,25 the Supreme Court ruled that the concerned chartered accountant against whom disciplinary action was proposed to be taken should be personally heard both by the disciplinary committee as well as the Council of the Institute of Chartered Accountants. In Ranjit Singh v. Union of India, 26 the enquiry officer's report had exonerated the delinquent employee from the charges but the disciplinary authority differing from him issued show-cause notice within the stipulated time. At the instance of the delinquent, the disciplinary authority extended the time for show-cause twice but after the expiry of the extended time, the employee sought further extension of time while the disciplinary authority had already prepared the punishment order. Shortly thereafter, the employee submitted a detailed reply without considering which the disciplinary authority directed dismissal of the employee from service on the presumption that non filing of the show-cause by the employee meant his acceptance of the points on the basis of which the disciplinary authority had differed with the findings of the enquiry officer. It was held that

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such a presumption was unjustified and the disciplinary authority must have complied with the principle of natural justice and considered his show-cause. The Court ordered that the matter be considered afresh by the disciplinary authority after affording the employee a personal hearing. Usually, oral hearing is necessary before the inquiry officer in the matter of dismissal of a civil servant.27 Recently the Supreme Court has ruled in Ram Chander28 that "an objective consideration is possible only if the delinquent sevant is heard and given a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fair-play and justice also require that such a personal hearing should be given." In this case, the appellant was removed from service by the General Manager, Northern Railway, after an ex parte inquiry as he did not appear at the inquiry after he was given notice of the date of the inquiry. He appealed to the Railway Board which dismissed the appeal without giving him a hearing. This order was quashed by the Supreme Court. In Maharaja Dharmander,29 in a matter of cancellation of permission to construct a building, the Supreme Court insisted that a personal hearing be given to the lessees by the concerned authority. The Court said, "On a matter of such importance where the stakes are heavy for the lessees who claim to have made large investments on the project and where a number of grounds require the determination of factual matters of some complexity, the statutory authority should, in the facts of this case, have afforded a personal hearing to the lessees." Quashing the order of the concerned authority, the Court suggested that the authority should "afford a reasonable opportunity including an opportunity of personal hearing and of adducing evidence wherever necessary to the respondent lessees." It is not clear whether oral hearing is necessary when action is taken against a student for using unfair means at the examination. In some cases, it has been held that an oral hearing is necessary in such a situation,30 but in some other cases the judicial approach has been that oral hearing is not necessary and, that it will be in accordance with natural justice if the university gives him a show-cause notice and the candidate is given an opportunity to file a written representation.31 It seems to depend upon the facts of each case, though the preponderance of judicial opinion seems to be in favour of giving a personal hearing to the student concerned. It needs to be pointed out that the career of a student is surely bound to be seriously affected by his expulsion from the university on a charge of misconduct. It only seems to be just that if a student demands an oral hearing on such an occasion, it must be conceded to him so as to ensure that action is taken against him after due proof and deliberation. Loss of career of a student is no less significant than financial loss. In the area of labour-management relations, in cases of dismissal of workers by the management, oral hearing has been invariably insisted upon by the Courts.32 Where a statute requires that an opportunity be given of making representations but does not require a personal hearing, it will be wrong on the part of the authority to issue notice for hearing to some of the parties, but not to others on the ground that the law does not insist on hearing the parties.33 Under different situations and conditions the requirement of compliance of the principle of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no

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personal hearing had been afforded. This is all the more important in the context of taxation and revenue matters. When an authority has determined a tax liability or has imposed a penalty, then the requirement that before the appeal is heard such tax or penalty should be deposited cannot be held to be unreasonable.34 Reference may be made here to an English case on the question of oral hearing. A question was raised whether the appellant, a licensed greyhound trainer, had administered drugs to a racing dog. The association initiated an inquiry into conduct of the dog trainer. This enquiry might have resulted in revocation or suspension of the trainer's license jeopardising his reputation and livelihood. The trainer insisted on an oral hearing but the association opposed the same. Lord DENNING ruled however that whether an oral hearing ought to be given or not "depended on the nature of the inquiry". Here the appellant was facing a serious charge affecting his reputation and livelihood. "In a case such as this, fairness may require an oral hearing". This view has not generally been endorsed by the judicial opinion in England.35 5. RECEIVING EVIDENCE IN THE PRESENCE OF THE CONCERNED PARTY Ordinarily, in an oral hearing, the ideal procedure is to take evidence against the party concerned in his presence.36 It may amount to violation of natural justice if evidence is taken behind his back and is not disclosed to the other party.37 A candidate was debarred from appearing at the B.A. examination for two years because he had used unfair means in the examination. The Calcutta High Court held in S.P. Paul v. Calcutta University, 38 that there was violation of natural justice insofar as the evidence of the witnesses had been heard behind the back of the candidate who was not given any opportunity of testing their evidence by cross-examination. In an inquiry into the validity of the social status certificate on the basis of which the respondent was selected in the I.A.S., the inquiry officer made enquiries from several persons and recorded their statements without any notice to the respondent so that he could remain present and ask for permission to cross-examine these witnesses. The Court ruled that the inquiry conducted was not fair and proper; the inquiry report and an order passed cancelling the certificate based on this report were thus vitiated.39 In a case involving disciplinary proceedings by a university against some students for using unfair means at the examination, the Court insisted that the inquiry did not fulfil the principles of natural justice because the witness on whose report the proceedings were started was not examined in the presence of the students; they were not given an opportunity to cross-examine him to test the evidence given against them, and to produce their own witnesses. The Court insisted that natural justice should not be illusory, futile or an empty formality.40 It seems that in this case, the High Court took an extremely liberal view in favour of the students which generally has not found support in later cases. As will be seen later, cross-examination is not regarded as an inevitable part of natural justice.41 In U.P. Warehousing Corporation v. Vijay Narayan, 42 the respondent (the dismissed employee) was denied an opportunity to lead evidence in his defence; he was not allowed to cross-examine witnesses whose statements had not been recorded by the inquiry office in his presence. The Supreme Court ruled that this constituted denial of natural justice, and so the order of dismissal was set aside. This pronouncement vindicates the cardinal principle of natural justice that any material on which the decision-maker may base his decision should be brought to the notice of the concerned party so that he may rebut the same if he can.43 In Errington v. Minister of Health, 44 a local authority made a clearance order in respect of certain buildings and submitted the same to the Minister of Health for confirmation. Thereafter, a local, public inquiry was held. After the closure of the inquiry, the local authority submitted to the Minister some additional evidence in support of its order. There was an exchange of views between the Minister and the authority. A Ministry official visited and inspected the buildings in question along with the authority officials but without any representative of the owner. The Minister confirmed the order and the owners challenged the same inter alia on the ground that the Minister had received further evidence after the inquiry without any notice to them. Quashing the order, the Court of Appeal ruled that the Minister was acting an in a quasi-judicial capacity and so he could not hear evidence from one side in the absence of the other side, and view the property in question without notice to the owners. The Court emphasized that a quasi-judicial officer must not hear one side in the absence of the other. The confirmation order must be quashed because the Minister took into consideration evidence which was given ex parte without the owners having any opportunity to deal with the same. But what is said above is not an immutable or invariable rule, and the ideal procedure is not always observed. In some situations, some deviation from the ideal procedure may be permissible without affecting

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the validity of adjudicatory proceedings, keeping in mind the practical exigencies of the day to day administration. Thus, no breach of natural justice occurs when a witness who has already testified behind the back of the concerned party, is recalled in the presence of the party, his evidence given earlier is read out, a copy of which is given to the party, and then the party is given an opportunity to cross-examine the witness. In such a situation, it is not necessary to make the witness repeat verbatim what he had already said earlier.45 Statements of witnesses may even be recorded in the absence of the concerned party. No breach of natural justice occurs if the gist of these statements is supplied to him. In Blaze,46 an order was quashed because the witnesses produced against the petitioner were not examined in his presence, nor a copy of their testimony supplied to him in spite of his specific request to do so. That evidence was relied upon by the adjudicatory body and in fact it formed the sole basis for making the impugned order against the petitioner. This was held against natural justice. The Court insisted that the petitioner must be told what evidence was given or what statements were made by the opposite side so that he could correct or contradict the evidence recorded in his absence47. In an English case, the General Medical Council removed the name of a doctor from its register on the basis of some psychiatric information about him furnished by two psychiatric consultants. This information was not disclosed to the doctor. The disciplinary committee of the Council refused to disclose to the doctor the contents of the consultants' reports or even to inform him of their general nature. The Privy Council emphasized that the rules of natural justice demanded that the psychiatric medical evidence on which the Council proposed to act should be disclosed to the doctor and an opportunity given to him to answer it and adduce, if he so wished, expert psychiatric evidence on his own behalf to contradict it. The decision of the Council was quashed as it failed to observe natural justice which required that any evidence relied on by an adjudicatory body in reaching a decision should be disclosed to the party concerned.48 Further, there may be circumstances when it may not be regarded as expedient to disclose the sources of information against the concerned party. Due to certain exigencies it may be necessary to keep the identity of the witnesses testifying against the party as confidential. In such a case, it may not be proper to examine the witnesses in the presence of the concerned party, and the evidence may have to be recorded in his absence. The reason for doing so may be that it may be embarrassing to the witnesses to testify in the presence of the party, or there may be danger to the life or property of a witness if he is identified. But, even in such a case, the basic point still has to be maintained that without disclosing the identity of the witnesses, the party concerned will either be apprised of the statements made by the witnesses, or a copy of the same supplied to him, or at least the gist of the evidence against the party be brought to his notice and he be given an opportunity to rebut the same.49 The principle has been succinctly stated by the House of Lords in Board of Education v. Rice thus:50 "... they (the Board of Education) must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial... They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views."

Another Privy Council case on the point is Ceylon University v. Fernando . A student sat for an examination. An allegation was made against him that he had prior knowledge of a question paper. He was suspended from all university examinations indefinitely after an inquiry. An essential witness, the person who had made the allegation against him, was examined in the absence of the candidate. This witness was a University teacher and it would be extremely embarrassing for her to be confronted with the student. The university order was challenged on the ground of breach of natural justice. It was found as a fact that the student was apprised of the evidence tendered against him by the witnesses. The Privy Council accepted the position that the inquiry committee could obtain the information against the student in any way it thought best, but it was undoubtedly necessary that he be given a fair opportunity to correct or contradict any relevant statement to his prejudice. The Privy Council felt satisfied that the student was adequately informed of the case he had to meet and that there was no breach of natural justice.51

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If there are circumstances when it may not be safe for the witnesses to appear in person to testify, their evidence may be taken in the absence of the party, and the evidence disclosed to the concerned party without disclosing their identity. In Hira Nath Misra v. Rajendra Medical College, 52 an enquiry was held against some male students on a charge of their entering the girls hostel and indulging in indecent behaviour towards some girls. The complainant girls testified before the inquiry committee in the absence of the male students concerned. As a result of the inquiry some students were expelled from the college. They challenged the expulsion order on the ground that there was failure of natural justice insofar as the enquiry was held behind their back, the witnesses were examined in their absence and not in their presence, and a copy of the inquiry report was not given to them. The Court ruled that there was no denial of natural justice as the gist of the evidence was explained to them. The girls could not testify in the presence of the miscreants for, if they had done so, they would have exposed themselves to retaliation and harassment by the boys. The enquiry had to be conducted in such a way that while reasonable opportunity was given to the male students to defend themselves, harassment to the girls was also avoided. For the same reason, a copy of the report could not be given to them. The way the inquiry was held fulfilled the requirements of natural justice in the circumstances of the case. The Court drew an analogy between the situation here and the position under the Goonda Acts in India. Under these Acts, evidence is' collected behind the back of the goonda, and he is asked merely to represent against the main charges arising out of the evidence collected. The identity of the witnesses is not disclosed to the goonda, nor is he given an opportunity to cross-examine the witnesses. The reason is that no witness will come forward to give evidence against a goonda in his presence.53 In this connection, an English case, R. v. Gaming Board, ex. p. Benaim, 54 may be mentioned here. It was a question of renewal of the gaming licence to a gaming club. For this purpose, the Gaming Board held an inquiry into the credentials of the club for grant of the licence. The Court ruled that the Board had a duty to act fairly. The Board was obligated to give to the applicant an opportunity of satisfying it of the matters specified in the relevant law. The applicant club must be given a chance of answering the information against it even when the same was confidential. The Court held that the Board could receive information from the police or other sources about the applicant. The Board need not reveal the sources of its information to the applicant, "if that would put their informant in peril or otherwise be contrary to the public interest." The Court explained the reasons for this view as follows: "By bitter experience it was learned that these clubs had a close connection with organised crime, often violent crime, with protection rackets and with strong arm methods. If the Gaming Board were bound to disclose their sources of information, no one would 'tell' on these clubs, for fear of reprisals."

Similarly, as regards the details of the information to be given to the club, it was ruled that if the Board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, the Board should in every case be able to give to the applicant "sufficient indication of the objections raised against him such as to enable him to answer them." Keeping the sources secret, the Board should disclose all the information. This judicial approach is really an attempt to reconcile the practical exigencies of the administration with the rights of the people.55

5 Gopalan v. State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], 43: 1950 SCR 88 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22]; F.N. Roy v. Collector of Customs, AIR 1957 SC 648 [LNIND 1957 SC 57] [LNIND 1957 SC 57] [LNIND 1957 SC 57]: 1957 SCR 1151; N.P.T. Co. v. N.S.T. Co., AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132]: 1957 (1) LLJ 344; N.N. Misra v. Vice-Chancellor, Gorakhpur University, AIR 1975 All 20; Gouranga Chakraborty v. Tripura, AIR 1989 SC 1321 [LNIND 1989 SC 203] [LNIND 1989 SC 203] [LNIND 1989 SC 203]: (1989) 3 SCC 314; Lloyd v. Mcmahon, [1987] 1 AC 625. 6 Ondal Coal Co. v. Sonepur Coalfields, AIR 1970 Cal 391 [LNIND 1970 CAL 36] [LNIND 1970 CAL 36] [LNIND 1970 CAL 36]. 7 U.O.I. v. J.P. Mitter, AIR 1971 SC 1093 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54]: 1971 (1) LLJ 256: (1971) 1 SCC 396 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], JAIN, Cases, 678. 8 F.N. Roy v. Collector of Customs, AIR 1957 SC 648 [LNIND 1957 SC 57] [LNIND 1957 SC 57] [LNIND 1957 SC 57]: 1957 SCR 1151. 9 Kapur Singh v. U.O.I., AIR 1960 SC 493 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227]: 1960 SCJ 487.

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10 M.P. Industries v. U.O.I., AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466. 11 Rangnath v. Daulatrao, AIR 1975 SC 2146 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440]: (1975) 1 SCC 686. 12 Ondal Coal Co. v. Sonepur Coalfields, AIR 1970 Cal 391 [LNIND 1970 CAL 36] [LNIND 1970 CAL 36] [LNIND 1970 CAL 36]. 13 Satish Chandra v. U.O.I., AIR 1983 Del 1. 14 Durga Shaikar v. State, AIR 1980 Ori 20 [LNIND 1979 ORI 42] [LNIND 1979 ORI 42] [LNIND 1979 ORI 42]. 15 CATA Sales Co-operative Society v. A.P. Government, AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275]: (1977) 4 SCC 337. 16 G.K.T. Bus Service, Palani v. S.T.A. Tribunal, AIR 1988 Mad 127 [LNIND 1986 MAD 193] [LNIND 1986 MAD 193] [LNIND 1986 MAD 193]. 17 Mohd. Ibrahim Khan v. State of M.P., AIR 1980 SC 517 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384]: (1979) 4 SCC 458. 18 G.S. Sodhi v. U.O.I., AIR 1991 SC 1617: 1991 (1) Crimes 207: 1991 Crlj 1947; Ranjit Thakur v. U.O.I., AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964]: (1987) 4 SCC 611: 1988 (1) LLJ 256 [LNIND 1987 SC 697] [LNIND 1987 SC 697] [LNIND 1987 SC 697]; JAIN, Cases, 882; S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: 1990 Crlj 2148: 1990 SCC (Cri) 669 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]; JAIN, Cases, Ch., IX, Sec. G., 776. 19 Capt. Harish Uppal v. U.O.I., AIR 1973 SC 258 [LNIND 1972 SC 556] [LNIND 1972 SC 556] [LNIND 1972 SC 556]; U.O.I. v. Amrik Singh, AIR 1991 SC 564 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53]: (1991) 1 SCC 654: 1991 Crlj 664. 20 Kehar Singh v. U.O.I., AIR 1989 SC 653 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586]: (1989) 1 SCC 204: 1989 Crlj 941. 21 Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868; JAIN, Cases, Chapter IX, Sec. G., 747. For a comment on the case, see 14 J.I.L.I. 602 (1972). 22 Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. 23 U.O.I. v. Smt. Chand Putli, AIR 1973 All 362. 24 Bhagat Singh v. State of Punjab, AIR 1975 P&H 236. 25 See, infra, note 402; JAIN, Cases, 786. 26 (2006) 4 SCC 153 [LNIND 2006 SC 246] [LNIND 2006 SC 246] [LNIND 2006 SC 246], 159 (paras 18 and 19). 27 Dewan Singh v. State of Haryana, AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227]: (1976) 3 SCC 638. Also see infra. 28 Ram Chander v. U.O.I., AIR 1986 SC 1173 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]: (1986) 3 SCC 103: 1986 (2) LLJ 334 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169], JAIN, Cases, Chapter IX, Sec. G. 758. 29 (1989) 2 SCC at 525-26; supra, note 62. 30 Ram Narayan v. Calcutta University, AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284]; Kamalendu Prasad v. Sambalpur University, AIR 1976 Ori 134 [LNIND 1975 ORI 79] [LNIND 1975 ORI 79] [LNIND 1975 ORI 79]; Pramila v. Secy., Board of Secondary Education, AIR 1972 Ori 224; Board of High School v. Bagleshwar, AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277]: 1963 (3) SCR 767; Ram Narayan Kishori v. University of Calcutta, AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284]; Sanjay Lobo v. Rajasthan Univ., AIR 1981 Raj 69. 31 N.N. Misra v. Vice-Chancellor, Gorakhpur University, AIR 1975 All 290; Kiran Sisodia v. Jiwaji University, Gwalior, AIR 1989 SC 18; Rashmi Bala Saxena v. Jiwaji University, AIR 1989 MP 181 [LNIND 1988 MP 70] [LNIND 1988 MP 70] [LNIND 1988 MP 70]. 32 Central Bank of India v. Karunamoy, AIR 1968 SC 266 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND 1967 SC 234]: 1967 (2) LLJ 739.

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33 N.P. Purushothanam v. State, AIR 1983 Ker 31. 34 Union of India v. Jesus Sales Corporation, (1996) 4 SCC 69 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608], 74-75 (para 5): AIR 1996 SC 1509 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608]. 35 Pett v. Greyhound Racing Association, (1968) 2 All ER 545 (known as Pett I). 36 Roshan Lal v. Ishwar Dass, AIR 1962 SC 646 [LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258]: 1961 (2) SCR 947; Kesoram Cotton Mills v. Gangadhar, AIR 1964 SC 708 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95]: 1963 (2) LLJ 371: 1964 (2) SCR 809 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95]; Nanjudeshwar v. State of Mysore, AIR 1960 Mys 159; U.O.I. v. T.R. Varma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 (2) LLJ 259: 1958 SCJ 142; Krishna Chandra Tandon v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374. 37 Errington v. Minister of Health, (1935) 1 KB 249; R. v. Birmingham City Justice, (1970) 3 All ER 945. 38 AIR 1970 Cal 282 [LNIND 1969 CAL 217] [LNIND 1969 CAL 217] [LNIND 1969 CAL 217]. 39 State of Andhra Pradesh v. Nigam Chandrasekhara, AIR 1988 SC 1309: (1988) 3 SCC 534. 40 Ram Narayan Keshori v. Calcutta University, AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284]. Also, Kamalendu Prasad v. Sambalpur University., AIR 1976 Ori 134 [LNIND 1975 ORI 79] [LNIND 1975 ORI 79] [LNIND 1975 ORI 79]. 41 infra, notes 173-191a, this Chapter. 42 AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]: 1980 (1) LLJ 222. 43 Also see, supra, this Chapter. 44 [1935] 1 KB 249. 45 State of Mysore v. Shivabasappa, AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214]: 1964 (1) LLJ 24: 1963 (2) SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214]. Also see, K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: (1984) 1 SCC 43: 1984 (1) LLJ 2 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. 46 Blaze and Central (P) Ltd. v. U.O.I., AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]. 47 Also see, Ajay Kumar Mittal v. Vice-Chancellor, Roorkee Unit., AIR 1991 All 177 [LNIND 1990 ALL 471] [LNIND 1990 ALL 471] [LNIND 1990 ALL 471]; Dev Pal Singh v. Vice-Chancellor, AIR 1992 All 163 [LNIND 1991 ALL 377] [LNIND 1991 ALL 377] [LNIND 1991 ALL 377]. 48 Crompton v. General Medical Council, (1982) 1 All ER 35, at 40. 49 Kabir v. Principal, AIR 1967 Ker 121 [LNIND 1966 KER 137] [LNIND 1966 KER 137] [LNIND 1966 KER 137]; Board of High School v. Bagleswar, AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277]: (1963) 7 FLR 415; Kishinchand Chellaram v. C.I.T., AIR 1980 SC 2117 [LNIND 1980 SC 385] [LNIND 1980 SC 385] [LNIND 1980 SC 385]: 1980 Supp SCC 660. 50 (1911) AC 179, 182. 51 (1960) 1 WLR 223. 52 AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: 1973 (2) LLJ 111: (1973) 1 SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]; JAIN, Cases, Chapter IX, Sec. D., 695. For a similar case, see, S.K Puri v. Principal, M.A. Mahavidyalaya, Jabalpur, AIR 1973 MP 278 [LNIND 1973 MP 43] [LNIND 1973 MP 43] [LNIND 1973 MP 43]. 53 See, Hari v. Deputy Commissioner of Police, AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]: 1956 Crlj 1104: 1956 SCR 506 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42], Bhagubhai v. District Magistrate, AIR 1956 SC 585 [LNIND 1956 SC 43] [LNIND 1956 SC 43] [LNIND 1956 SC 43]: 1956 Crlj 1126: 1956 SCR 533 [LNIND 1956 SC 43] [LNIND 1956 SC 43] [LNIND 1956 SC 43]. 54 (1970) 2 QB 417. 55 Also see, Re Pergamon Press Ltd., (1970) 3 All ER 535; infra, Chapter XVI.

6. RECEIVING EVIDENCE PRODUCED BY THE CONCERNED PERSON

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In an oral hearing the adjudicating authority is obligated to give to the person concerned an opportunity to produce all the evidence which he wants to produce in support of his case, or to rebut the evidence against him. A basic principle of natural justice is that a party should have the opportunity of adducing all relevant evidence on which he relies.56 Refusal to receive evidence on behalf of the affected person may amount to breach of natural justice, vitiating the decision given by the adjudicatory authority. In Dhakeswari Cotton Mills Ltd. v. C.I.T., 57 the Supreme Court held that the principles of natural justice were violated by the refusal of the Income Tax Appellate Tribunal to look into the account books produced by the taxpayer which he did not have the opportunity to produce earlier owing to reasons beyond his control. An adjudicatory authority is entitled to proceed ex parte if the person concerned does not appear before it in response to a notice issued by it.58 But the authority ought to be liberal towards the person who fails to comply with its notice to produce evidence in support of his case. Thus, it would be a violation of natural justice if the authority refuses to hear a person who does not appear at the first hearing but appears subsequently during the course of the hearing,59 or who does not appear in response to the first notice, but appears when a second notice is given.60 Emphasising on the right of hearing, the Supreme Court has stated:61 ... our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect-their lives and property should not continue in their absence and that they should not be precluded from participating in them ... our laws should be construed, wherever that is reasonably possible, in the light of that principle.

When adequate and reasonable grounds for failure to appear at the hearing are made out, the authority must restore the matter and hear the party even if it had decided the case ex parte. It raises the question of adequacy of hearing.62 But if it is not so, the authority is not bound to rehear. The need to give an opportunity to present an effective answer or defence may make it necessary to adjourn the proceedings: "sometimes, if justice is to be done, adjournments are essential".63 If, however, the person concerned had full knowledge of the case and had ample time to prepare his case, a refusal to grant adjournment will not be violative of natural justice.64 If the adjudicatory authority wrongly refuses to receive evidence produced by the party, the proceedings will be bad. In Malik Ram v. State of Rajasthan, 65 the enquiry officer ruled that the scope of the enquiry under S. Section 68of the Motor Vehicles Act, 1939,66 was confined only to hearing of arguments and no more and, consequently, he rejected the appellant's request for leading evidence. The Supreme Court held that the purpose of the enquiry was to enable the State Government to satisfy itself that the scheme framed under S. 68-Cwas for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service. For the purpose of reaching such a conclusion, materials were needed and so the hearing under S. 68-Denvisaged not merely an argument but also evidence which either party might desire to produce and which might be necessary for the State Government to reach the conclusion regarding the objection to the draft scheme. However, as has been pointed out by the Court in New Prakash Transport Co. v. New Suwarna Transport Co., 67 while considering the rival claims for stage carriage permit under S. Section 47of the Motor Vehicles Act, the authority is not required to record oral or testamentary evidence as in Courts of law but only to deal with the claims of the parties in a just and fair manner. How strict the Court will be in the matter of procedure differs from case to case. For instance, under Art. 311of the Constitution, the Court is more liberal towards the civil servant in this regard than in other situations.68 For example, in Murari Mohan v. Secretary, Govt. of India, 69 the appellant was compulsorily retired from service. The venue of the enquiry was suddenly changed with the result that he could not produce his witnesses at the new venue. Also, he had not been given an opportunity of examining records used against him. The Supreme Court characterised the enquiry as a sham which violated the rules of natural justice. Accordingly, the order in question was quashed. The requirement to give an opportunity of producing evidence does not mean that the parties can produce any amount of evidence they like and thus prolong the proceedings unduly. The parties are entitled to

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produce necessary, material and relevant evidence. It is, therefore, for the hearing officer to decide, in case any party desires to lead evidence, whether the evidence is necessary and relevant to the enquiry before him. He must give a reasonable opportunity to the party desiring to produce evidence relevant to the enquiry and within reason.70 It is not in every case that failure to record all evidence sought to be tendered by the party would vitiate the proceedings; if some evidence immaterial or irrelevant to the enquiry is disallowed by the authority, the principles of natural justice are not violated.71 It is necessary for the adjudicative authority to have such discretion in order to ensure that hearings are not unduly prolonged. But such discretion must be exercised by the enquiry authority reasonably, in good faith and on proper grounds. In the context of preventive detention, the Supreme Court has ruled in A.K Roy72 that there is no objection in conceding to a detenu the right to lead evidence in rebuttal before the advisory board. Neither the Constitution nor the National Security Act denies such a right to the detenu. He can therefore offer oral and documentary evidence before the advisory board in order to rebut the allegations made against him. The board, like any other tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. The board can therefore limit the time within which the detenu must complete the evidence. As the board is required to submit its report within seven weeks of the date of detention of the person concerned, it must complete its proceedings with the utmost expedition. (a) Summoning of Witnesses In R. v. Hull Prison Board of Visitors, ex pane St Germain, 73 the board of visitors trying certain disciplinary charges against some prisoners involving potential loss of liberty for them, refused to call witnesses requested for by the concerned prisoners. The Court emphasized that the discretion to call or not to call witnesses "has to be exercised reasonably, in good faith and on proper grounds." The Court emphasized that it would not be proper for an adjudicator to refuse calling witnesses merely on the ground of administrative difficulties or inconvenience, for "convenience and justice are often not on speaking terms."74 A fair chance of exculpation cannot in many cases be given without hearing the party's witnesses. The right to be heard includes, in appropriate cases, the right to call evidence. In India it has been ruled that although an adjudicatory may not have power to summon witnesses yet from this no inference can be drawn that he cannot examine witnesses produced before it by the parties.75 While considering objections to a scheme framed under S. 68-Cof the Motor Vehicles Act, 1939, the State Government refused to summon witnesses and to enforce the production of documents at the request of the appellants. It was argued that in this way, the Government acted illegally in shutting out evidence and thus actually denied to the appellants any real opportunity of being heard. In Saraswati Devi v. State of U.P., 76 the Supreme Court rejected this argument. The Court found that when the case was at the evidence stage, the appellants had submitted applications requesting summoning of certain witnesses with certain documents. These applications were rejected by the concerned authority with the remark that it was not necessary to issue letters of request to witnesses or to send for any records. "The objectors can only examine those witnesses whom they themselves brought". The argument of the government was that under the relevant rules, no power to summon witnesses had been conferred on the government and, therefore, the order refusing the appellant's request was correct. The Court found substance in this contention. The government was acting in a quasi-judicial capacity and so it could devise its own procedure to discharge its functions effectively. The Court laid down the following proposition in this connection:77 When the statute gives the power to the State Government to afford to the objectors a reasonable opportunity of being heard and to take evidence, oral as well as documentary, in support of their objections, the power to send letters of request to witnesses to appear and give evidence or to produce documents is inherent in the situation and needs no statutory sanction, although the power to enforce their attendance or compel them to produce documents is lacking on account of absence of conferment thereof by a statute.

To support the above proposition, the Court referred to the Nehru78 case where it was said that the authority might help the objector to secure the attendance of the witnesses by issuing summons to them. But there was no coercive power in the authority to compel the attendance of the witnesses in the absence of any

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provision made for the purpose in the rules. It would be up to the witnesses to appear or not to appear in answer to the summons. But then the Court answered in the negative the question: was an order of the government rejecting a prayer for issuance of summons illegal ? Referring to the Capital Multi purpose79 case for the purpose, the Court referred to the following remark of WANCHOO, J., there: But in the absence of such power (to compel the attendance of witnesses) all that the authority can do is to issue letters and it is open to those persons to appear or not. In this situation if an authority decides not to issue such letters it cannot be said that there was no effective hearing.

The Court now concurred with WANCHOO, J.'s observation. It thus ruled that no right of the appellants was infringed when their applications for summoning witnesses and production of documents were rejected. It is thus clear from the above that an adjudicatory body is not bound to examine witnesses on commission or issue summons to them. It may help the party before it if to secure attendance of witnesses, it issues them letters of request to attend and give evidence. Power to call witnesses and request for production of documents is inherent in an adjudicatory body. But an authority has no inherent coercive power to compel the attendance of witnesses or production of documents in the absence of a statutory provision to that effect. It is up to the witnesses summoned to attend or not to attend or produce documents or not.80 The authority can take evidence from such witnesses only as are produced before it by the concerned party. Coercive power to enforce attendance of witnesses can only be conferred by a statutory provision.81 In the absence of a statutory coercive power to compel witnesses to appear, issuing letters of request to witnesses is a matter of discretion with the adjudicatory body concerned. If the adjudicatory authority chooses not to issue any summons or letters of request to witnesses to appear before it, and leaves it to the party to produce his own witnesses, no breach of natural justice can be said to have occurred.82 If, however, the authority has statutory power to summon witnesses and documents, but declines the request of the party affected to exercise it, it will then amount to the failure of natural justice.83 But if the concerned party does not move the authority to issue summons to witnesses, he cannot later on complain that the authority failed to give him opportunity to summon witnesses.84 When an adjudicatory body has a statutory power "to hold such summary enquiry as it thinks fit" or "power to afford to the objectors a reasonable opportunity of being heard" before deciding a matter, the idea is that the concerned body acts according to natural justice. But the concerned body is also regarded as having an inherent power to require witnesses to appear before it, to give evidence, or to produce documents before it to enable it to complete the inquiry to its own satisfaction. Without exercising such a power the authority could not hold such an inquiry in every case. If a person files an affidavit before such an authority, it can summon him for cross-examination either suo motu or at the instance of the opposite party.85 As an example of a statute conferring coercive powers to summon witnesses, reference may be made to the Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents)86 Act, 1972. Before the passage of the Act, inquiry officers appointed to conduct departmental inquiries had no coercive power to enforce the attendance of witnesses or compel the production of documents. This was found to be inconvenient as persons not in government employment tried to avoid appearance on one plea or another. It was therefore thought necessary to clothe inquiring authorities with statutory powers to enforce the attendance of witnesses. This Act applies to every departmental inquiry which is made in relation to a person appointed to a public service or post in connection with the affairs of the Union. S. 4of the Act empowers the Central Government to authorise any inquiring authority with powers to enforce the attendance of any witness and examine him on oath and to require the production of any document, or other material which is produceable as evidence. S.5 vests in the authorised inquiring authority the same powers as are vested in any civil Court under the Civil Procedure Code while trying a suit in respect of summoning and enforcing the attendance of witnesses. Such an authority is deemed to be a civil Court for purposes of S s. 345 and 346, CrPC, 1973. These are typical statutory provisions which are inserted in a statute whenever it is desired to confer coercive power on an adjudicatory body to enforce attendance of witnesses.87

56 U.O.I. v. T.R. Verma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], 885: 1958 (2) LLJ 259 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91].

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57 AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 (1) SCR 941. 58 Roshan Lal v. Ishwar Das, AIR 1962 SC 646 [LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258]: 1961 (2) SCR 646; Shahdoodul Haque v. Registrar, Co-operative Societies, Bihar, AIR 1974 SC 1896: (1975) 3 SCC 108. 59 Sangram Singh v. Election Tribunal, AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2]: (1955) 2 SCR 1. 60 Abdul Rahiman Haji v. Sales Tax Officer, (1963) 14 STC 155 (Ker). 61 Sangram Singh v. Election Tribunal, AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2]: (1955) 2 SCR 1 at 429. 62 Income Tax Officer v. Murlidhar, AIR 1974 Cal 272 [LNIND 1973 CAL 170] [LNIND 1973 CAL 170] [LNIND 1973 CAL 170]. See, infra, Chapter XIII. 63 U.P. Singh v. Board of Governors, MACT, AIR 1982 MP 59 [LNIND 1981 MP 81] [LNIND 1981 MP 81] [LNIND 1981 MP 81]; Priddle v. Fisher & sons, (1968) 3 All ER 506. 64 Hanson v. Church Commissioners for England, (1978) QB 823, 838. 65 AIR 1961 SC 1575 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174]: 1962 (1) SCR 978. 66 For the provision, see Gullapalli Nageswara Rao v. A.P. State Road Transport Corporation, AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319; JAIN, Cases, Chapter X, Sec. C, 896. 67 AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132]: 1957 (1) LLJ 344. 68 See. U.O.I. v. Varma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 (2) LLJ 259; also, infra, note 177. 69 AIR 1985 SC 931 [LNIND 1985 SC 119] [LNIND 1985 SC 119] [LNIND 1985 SC 119]: (1985) 3 SCC 120: 1985 (2) LLJ 176 [LNIND 1985 SC 119] [LNIND 1985 SC 119] [LNIND 1985 SC 119]. 70 Malik Ram v. State of Rajasthan, AIR 1961 SC 1575 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174]: (1962) 1 SCR 978. 71 Western India Co. v. Industrial Tribunal, (1962) I L.L.J. 629 (SC): 1962 (4) FLR 180; C.M.P. Co-op. Societies v. State of M.P., AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: 1967 (3) SCR 329. 72 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271: 1982 Crlj 340; JAIN, Cases, 718. 73 (1979) 3 All ER 545; JAIN, Cases, 681. 74 Per Lord ATKIN in General Medical Council v. Spackman, (1943) 2 All ER 337, 341. 75 Devi Sahai v. T.A. Tribunal, AIR 1970 Raj 48 [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119] [LNIND 1969 RAJ 119]. 76 AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC 435]: (1980) 4 SCC 738. 77 Saraswati Devi v. State of U.P., AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC 435]at 669: (1980) 4 SCC 738 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC 435]. 78 Nehru Motor Transport Co-operative Society Ltd. v. State of Rajasthan, AIR 1963 SC 1098 [LNIND 1962 SC 432] [LNIND 1962 SC 432] [LNIND 1962 SC 432]: 1964 (1) SCR 220. 79 AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: 1967 (3) SCR 329. 80 Nehru Motors Transport Co-op. Society Ltd. v. State of Rajasthan, AIR 1963 SC 1098 [LNIND 1962 SC 432] [LNIND 1962 SC 432] [LNIND 1962 SC 432]: 1964 (1) SCR 220. 81 The customs authorities have been given such powers under S s. 107 and 108 of the Customs Act, 1962. Also see, Ss. 39and 40of the FER Act, 1973. Many other such examples can be found in the statute book. Also see, infra, Chapters XIII and XVI. 82 Saraswati Devi v. State of U.P., AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC 435]: (1980) 4 SCC 738; C.M.P. Co-op. Societies v. State of M.P., AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: (1967) 3 SCR 329; Raj Bahadur Lal v. State, AIR 1972 All 308; B.E. Supply Co. v. The Workmen, AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971 SC 383]: (1971) 2 SCC 617. 83 Sita Ram v. U.O.I., AIR 1967 Del 38 [LNIND 1966 DEL 133] [LNIND 1966 DEL 133] [LNIND 1966 DEL 133].

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84 Navtej Singh v. Satish Kumar, AIR 1989 SC 1758: (1989) 3 SCC 418. 85 Gurcharan Singh v. Ram Kumar, AIR 1975 Del 36 [LNIND 1973 DEL 231] [LNIND 1973 DEL 231] [LNIND 1973 DEL 231]; Saraswati Devi, AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC 435]: (1980) 4 SCC 738. Also see, infra, 343, under Cross-examination. 87 Also see, infra, Chapter XIII.

7. CROSS-EXAMINATION Not only should the adjudicative authority disclose the relevant evidence which it desires to use in its decision-making, but, as stated above, it should also give an opportunity to the affected party to rebut, contradict or correct the material against him. Does the giving of such an opportunity include a right of cross-examination of the witnesses or persons tendering evidence, whether oral or documentary ? The ideal procedure, of course, will be to permit cross-examination of witnesses testifying against a party. As the Supreme Court has emphasized in Shaduli:88 "It can hardly be disputed that cross-examination is one of the most efficacious methods of establishing truth and exposing falsehoods." But the Courts assert that the right to cross-examine witnesses is not an essential or integral part of natural justice. Whether an opportunity for cross-examination is to be given or not depends upon the circumstances of each case. In Shaduli, the Supreme Court has stated that the rules of audi alteram partem may, in some situations, import a requirement that witnesses against him be cross-examined by the affected party while no cross-examination may be required in other situations. The procedure depends on the facts and circumstances of each case. In the instant case, the main question involved was whether or not the tax payer was entitled to cross-examine witnesses on whose evidence the tax assessment officer was depending for enhancing his tax liability. The assessee was assessed to the best judgment assessment as the assessing authority found that certain sales appearing in the books of accounts of third parties had been effected by him in their favour but were not accounted for by him in his own account books. The assessee was denied an opportunity to cross-examine these third parties. The Supreme Court held that the cross-examination by the assessee of the witnesses on whose evidence the tax assessing officer was depending to hold the asessee's return to be inaccurate was compulsory. Denial by tax assessment officer to the tax payer an opportunity to cross-examine witnesses testifying against him, amounted to an infraction of the tax-payer's rights. The Court also stated that it was only through cross-examination that the assessee could establish that what was mentioned in his account books was correct and that what was mentioned in the accounts of the third parties was wrong.89 In Administrative Law, cross-examination of witnesses is not regarded as an obligatory or essential part of natural justice in all situations.90 In some situations, cross-examination of witnesses may be regarded as necessary while it may not be so in other situations. Whether an opportunity of crossexamination is to be given or not to the party concerned depends upon the circumstances of each case and the statute under which the hearing is being held. The concept of natural justice being flexible, in some situations, denial of cross-examination may, in itself, constitute denial of natural justice. In other situations, restricting of cross-examination may not be regarded as offending natural justice or fairness. In the case of a domestic enquiry by an employer for taking disciplinary action against his employees in the area of labour-management relations,91 and also in disciplinary proceedings initiated by the government against civil servants,92 or by a statutory corporation against its employees, the right of cross-examination has been regarded as an essential component of natural justice. The procedure depends on the facts and circumstances of each case. In Vijay Narain,93 the respondent (the dismissed employee of a statutory corporation) was denied an opportunity to lead evidence and in his defence, he was not allowed to cross-examine certain witness whose statements were not recorded by the enquiry officer in his presence. The Supreme Court ruled that this amounted to denial of natural justice to him, and, so, the order of dismissal was set aside. In Kishanchand Chellaram v. C.I.T., 94 the appellate assistant commissioner was relying on a letter said to have been written to him by the manager of the bank. The said letter was not shown to the assessee, but an extract from the said letter was reproduced by the officer in his order. The Supreme Court ruled that before the income tax authorities could rely upon the letter, they were bound to produce it before the assesee so that he could controvert the statements made therein by asking for an opportunity to cross-examine the

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manager with reference to his statement in the said letter. At an enquiry against a candidate for using unfair means at the examination, he claimed a right to cross-examine witnesses but it was refused. The Court ruled that there would be a denial of natural justice if the right of cross-examining witnesses was refused when demanded.95 But, on the other hand, there are a number of cases pertaining to disciplinary action against students for various types of misbehaviour, in which it has been ruled that it was not necessary to give the concerned student an opportunity to cross-examine witnesses.96 Perhaps, a general principle may be stated as follows. When there is an oral hearing, and witnesses are examined against a person, the person concerned may demand a right to cross-examine witnesses. If he demands such a right and the same is refused to him, it may amount to miscarriage of natural justice if the Court feels that thereby the party has been prejudiced in his defence. On the other hand, the Courts have refused cross-examination in several situations. In K.L. Tripathi v. State Batik of India, 97 the Supreme Court has laid down the following guidelines on the question of cross-examination as a component of natural justice: "If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action."

When there is no dispute as to the facts, or the weight to be attached to the disputed facts, but only an explanation of the facts, absence of opportunity of cross-examination does not create any prejudice in such a case. In the instant case, the appellant who was a branch manager in the respondent bank was dismissed from service on charges of committing irregularities etc. These charges were based on the report of an enquiry. At the inquiry, the appellant admitted the facts but sought to justify his actions on the ground of good faith. He did not ask for an opportunity to cross-examine witnesses testifying against him. The witnesses had not testified in his presence, but whatever information was gathered was conveyed to him. The Court rejected the claim of the appellant that he was not given an opportunity to cross-examine witnesses and this resulted in denial of natural justice to him mainly on three grounds: (1) he never questioned the veracity of facts or the credibility of the witnesses; indeed, he had accepted the factual basis of the allegations against him; (2) He never asked for any opportunity of cross-examination of the witnessses; (3) no prejudice was caused to him by the procedure followed. Clarifying the position, the Court observed:1 "The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specifically when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts or the weight to be attached on disputed facts but only an explanation of the facts, absence of opportunity to cross-examination does not create any prejudice in such cases."

In the facts of the case, the Court ruled that there was no violation of natural justice merely because the evidence was not recorded in the presence of the petitioner or that "the materials gathered, the gist of which was communicated to him, were not in his presence." In proceedings before the customs authorities to determine whether the goods were smuggled or not, it has been held that the principles of natural justice do not require that the affected party should be allowed to cross-examine the witnesses on the statements made by them to the customs authorities.2 In Jammu & Kashmir v. Bakshi Ghulam Mohd., 3 the Government of Jammu and Kashmir appointed a commission of inquiry to enquire into charges of corruption and maladministration against the ex-chief minister of the State.4 A number of persons filed sworn affidavits before the commission supporting the allegations against him. He claimed a right to cross-examine these persons on the basis of natural justice. It was argued that the right to hearing included the right to cross-examination of witnesses. Reference was made to the Meenglass case,5 where the Court had regarded the giving of a "fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination" as the party desired as an essential element of natural justice. The Court now ruled that Meenglass was not controlling here for two reasons: (1) The

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statement in the Meenglass case referred to a situation when evidence was given orally against a person and not to a situation where only affidavits were filed. (2) In Bakshi, the commission was merely a fact-finding body whose report had no force proprio vigore; it was not an enquiry-body of the type as was involved in Meenglass.6 The Court interpreted the statutory provision as contemplating cross-examination of only those witnesses who deposed orally against the ex-chief minister and not of those who merely filed affidavits. In case where no oral hearing is held and only written statements are called for from the affected party, there is no right of cross-examining witnesses.7 Then there may be situations where cross-examination may have to be avoided as it may be embarrassing and delicate for witnesses. A lady lecturer in a college complained against the behaviour of a male student. An inquiry committee of three professors was appointed. The committee read over the complaint to the student and gave him an opportunity to state his case and produce his defence. The student was rusticated from the college on the committee's report. He challenged the order on the ground that the complainant was not examined in his presence and that he was not given an opportunity to cross-examine her. The Court ruled that there was no violation of natural justice in the facts and circumstances of the case.8 In another case of a similar nature, in a disciplinary proceeding against some male students of a college, girl students were not cross-examined. The lack of opportunity of cross-examination of the girls was upheld so as to protect them from harassment later on.9 Also, there may be circumstances when the identity of witnesses may have to be kept confidential, and it may not be expedient to confront the witnesses with the person against whom they may be testifying, in the interest of safety to the person or property of the witnesses. This is illustrated by the following case. Under the Bombay Police Act, 1951, the Deputy Commissioner served an externment order on the petitioner. The statute required giving of a reasonable opportunity to the would-be externee to explain the allegations against him. In this case10 neither were the witnesses examined before the person affected, nor was he allowed to cross-examine the witnesses, but he was given a chance to have his say. He challenged the validity of the proceedings, inter alia, on the ground that he was not allowed to cross-examine the witnesses who deposed against him. The Supreme Court rejected the contention holding that denial of crossexamination of witnesses did not make the procedure unreasonable as the witnesses would not like to come in the open to depose against bad characters due to fear of violation of their person or property, if they were confronted with the person against whom proceedings were sought to be taken.11 In the preventive detention cases, the Supreme Court has denied to the detenu the right of cross-examining witnesses testifying against him in proceedings before the advisory board. The Court has emphasized that the rules of natural justice "are not rigid norms of unchanging content"; the ambit of those rules must vary according to the context, and "they have to be tailored to suit the nature of proceedings in relation to which the particular right is claimed as a component of natural justice". Giving its reasons for denying a detenu from cross-examing witnesses, the Court observed in A.K. Roy that the principle that witnesses must be confronted and offered for cross-examination applies generally to proceedings in which witnesses are examined or documents are adduced in evidence in order to prove a point. Cross-examination then becomes a powerful weapon for showing the untruthfulness of that evidence. But, in proceedings before the advisory board, observed the Court:12 The question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is a sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceedings of judicial or quasi-judicial tribunals before which there is a lis to adjudicate upon.

The Court further observed that in cases of preventive detention, witnesses are either unwilling to come forward or the sources of information of the detaining authority cannot be disclosed without detriment to public interest. Therefore, in the very nature of things, it is not possible to give to the detenu the right of cross-examination of witnesses. In proceedings before the advisory boards, no witnesses are examined on behalf of the detaining authority and, therefore, there can be no question of cross-examination of witnesses by the detenu. In justification of this ruling, the Court referred to Bakshi Ghulam Mohammad.13 It was argued there that the right of hearing included the right to cross-examine witnesses. The Court rejected the

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argument saying that it was dealing with a statute under which a commission of inquiry was set up for fact-finding purposes and that the report of the commission had no force proprio vigore. There may however be a statutory provision giving the right of cross-examination to the parties before a tribunal. For example, S. Section 39 of the Foreign Exchange Regulation Act, 1973 (FERA) empowers the Director of Enforcement to conduct an investigation. He has power under S. 40to call upon any person to give evidence or produce documents. Under S. 51, he can adjudicate upon a matter and impose penalty on a person for violation of the Act, rules etc., after holding an inquiry. According to Rule 3of the Adjudication Proceedings and Appeal Rules, 1974, the person proceeded against at an enquiry is to be heard "either personally or through his lawyer or other authorised representative". In Director of Enforcement, FER Act v. Alfred James Fernandez, 14 the Kerala High Court said of Rule 3: "The rule thus postulates a personal hearing which implies a right to appear in person and to adduce evidence. This includes a right to examine and cross-examine witnesses." In the instant case, the Director had not permitted the respondent to cross-examine the witnesses who had testified against him although he specifically requested for such an opportunity. The FER Appellate Board15 held that insofar as the respondent was not allowed an opportunity to cross-examine witnesses the enquiry could not be regarded as a fair inquiry and so set aside the Director's order and remanded the case to him for fresh consideration after affording the parties a fair opportunity of being heard. The High Court agreed with the Board's Order. On a request by the respondent, however, the Court directed the Board to dispose of the matter itself on merits instead of remanding the same to the Director. The Director's order was made on 29-10-1977 and the appeal was being disposed of by the High Court in 1987.16 In this case, it may be noted that the right to cross-examine witnesses was spelled out of a statutory provision stipulating a personal hearing. In a case under Foreign Exchange Regulation Act, 1973, the accused, from whose possession the contraband was recovered, had confessed to have purchased and imported them. It was contended by him that he was entitled to cross-examine the panch witnesses and the Seizing Officer. The Supreme Court observed that he was bound by his confession and failure to give him the opportunity to cross-examine the witness is not violative of the principle of natural justice.17 A male temporary teacher of a co-educational institution was warned of his sexual advances towards a girl student but he did not mend himself. His services were terminated in terms of his appointment letter by paying him one month's pay on the ground of improper conduct. The Supreme Court by an interim order directed the management, the Navodaya Vidyalaya Samiti, to issue a show-cause notice, conduct an inquiry and submit a report. Consequently, a preliminary inquiry was conducted. He was found guilty and his explanation not acceptable by the inquiry officer. The disciplinary authority examined the report and found the said teacher not worthy of being retained. Under these circumstances, the disciplinary authority, in the exercise of his power under the relevant rules took the decision to dispense with a regular inquiry exposing the modesty of the girl, to deny the opportunity to cross-examine the girl student witnesses and to re-affirm the termination order. The Apex Court held that it was not violative of the principles of natural justice.18 Even where cross-examination of witnesses is allowed, the adjudicatory authority may refuse to permit unnecessary cross-examination of a witness. Even if cross-examination of witnesses is not an obligatory part of natural justice, it is still necessary for the decision-making authority to give the party concerned a fair opportunity of commenting on the evidence produced against him and of contradicting the same. In the U.S.A., the right to cross-examine witnesses is better secured as S. 556(d)of the A.P.A. lays down inter alia: "A party is entitled to present his case or defense by oral or documentary evidence .... and to conduct such cross-examination as may be required for a full and true disclosure of the facts".19

88 State of Kerala v. K.T. Shaduli, AIR 1977 SC 1627 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC 133], 1631. See also Swadeshi Polytex Ltd. v. Collector of Central Excise, JT 2000 (10) SC 476: 2000 (122) ELT 641: (1977) 2 SCC 777 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC 133]. 89 The case follows an earlier judgment of the Kerala High Court in M. Appukuty v. State of Kerala, (1963) 14 STC 489, and may be said to overrule the judgments of the Madras and Orissa High Courts in Madugula v. State of Madras, (1956) 7 STC 180 (Mad)and Bhagwandas v. State of Orissa, (1963) 14 STC 642 [LNIND 1963 ORI 17] [LNIND 1963 ORI 17] [LNIND 1963 ORI 17] (Ori). 90 See, Rohtas Industries v. R. Industries Workmen Sangh, AIR 1977 SC 1867: (1977) 2 SCC 153; Balwinder Singh v. University of Jammu, AIR 1983 J&K 19.

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91 Phulbari Tea Estate v. Its Workmen, AIR 1959 SC 1111 [LNIND 1959 SC 102] [LNIND 1959 SC 102] [LNIND 1959 SC 102]: 1959 (2) LLJ 663; Meenglass Tea Estate v. Their Workmen, AIR 1963 SC 1719 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50]: 1969 (2) LLJ 392: 1964 (2) SCR 165 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50]; Central Bank of India v. Karunamoy, AIR 1968 SC 266 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND 1967 SC 234]: 1967 (2) LLJ 739: 1968 (1) SCR 251 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND 1967 SC 234]. See RATHI, Fair Hearing in Domestic Enquiries, 5 JJLJ 191, 202, (1963). 92 Khem Chand v. U.O.I., AIR 1958 SC 300 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]; State of Madhya Pradesh v. Chintatnan Waishampyan, AIR 1961 SC 1623; U.O.I. v. Varma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 (2) LLJ 259: 1958 SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]; State of Mysore v. Shivabasappa, AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214]: 1964 (1) LLJ 24: 1963 (2) SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214]. 93 U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]: 1980 (1) LLJ 222: (1980) 3 SCC 459 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]. 94 AIR 1980 SC 2117 [LNIND 1980 SC 385] [LNIND 1980 SC 385] [LNIND 1980 SC 385]: 1980 Supp SCC 660. 95 Kamalendu Prasad v. Sainbalpur Univ., AIR 1976 Ori 134 [LNIND 1975 ORI 79] [LNIND 1975 ORI 79] [LNIND 1975 ORI 79]. Also, Pramila v. Secretary, Board of Secondary Education, AIR 1972 Ori 224; Rant Narayan v. Calcutta Univ., AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284]. But see, N.N. Misra v. Vice-Chancellor, Gorakhpur University, AIR 1975 All 290. 96 Kamal Singh v. Chancellor, Allahabad Univ., 1981 UPLBEC 393; Dev Pal Singh v. Vice-Chancellor, G.B. Pant Univ., AIR 1992 All 163 [LNIND 1991 ALL 377] [LNIND 1991 ALL 377] [LNIND 1991 ALL 377]; Mohinder Singh Jamwal v. University of Jammu, AIR 1984 J&K 40. To the same effect is the Privy Council case, Ceylon Univ. v. Fernando, (1960) 1 WLR 223. 97 AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: (1984) 1 SCC 43: 1984 (1) LLJ 2 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. Also, JAIN, Cases, Chapter IX, Sec. D, 690. 1 K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]at 289: (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: 1984 (1) LLJ 2 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. 2 Kanungo & Co. v. Collector of Customs, AIR 1972 SC 2136: (1973) 2 SCC 438. 3 AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401. See, JAIN, Cases, Chapter XVII. 4 On commissions of inquiry, see, infra, Chapter XVI; JAIN, Cases, Chapter XVII, Sec. B. 5 Meenaglass Tea Estate v. Their workmen, AIR 1963 SC 1719 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50]: (1964) 2 SCC 165. 6 On Commissions of Inquiry, see, infra, Chapter XVI. 7 This principle was applied by the A.P. High Court in Md. Ibrahim Khan v. Susheel Kumar, AIR 1983 A.P. 69 [LNIND 1982 AP 187] [LNIND 1982 AP 187] [LNIND 1982 AP 187]. 8 S.K. Puri v. Principal, M.A. Mahavidvalaya, Jabalpur, AIR 1973 MP 278 [LNIND 1973 MP 43] [LNIND 1973 MP 43] [LNIND 1973 MP 43]. 9 Hira Nath Misra v. Rajendra Medical College, AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: (1973) 1 SCC 805: 1973 (2) LLJ 111 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]. 10 Gurbachan Singh v. State of Bombay, AIR 1952 SC 221 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31]: 1952 Crlj 1147: 1952 SCR 737 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31]. Also, Hari v. Deputy Commissioner of Police, AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]: 1956 Crlj 1104. Also see, supra. 11 Also see, R. v. Gaming Board, ex P. Beniam, (1970) 2 QBD 417. 12 AIR 1982 SC at 479. For the text of the case, see, JAIN, Cases, Chapter IX, Sec. F, 718. 13 Jammu & Kashmir v. Bakshi Ghulam Mohd., AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401. 14 AIR 1987 Ker 179 [LNIND 1986 KER 398] [LNIND 1986 KER 398] [LNIND 1986 KER 398]. See also Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], 18 (32): AIR 1999 SC 677 677; Lakshman Exports Ltd. v. Collector of Central Excise, (2005) 10 SCC 634-35 (paras 2 and 3). JAIN, Cases, Chapter XII, Sec. J.

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15 For description of this Board, see, infra, Chapter XIII and JAIN, Cases, Chapter XII, Sec. J. 16 Also see, M.S. Hemashankar v. Regional Transport Officer Central, Bangalore, AIR 1987 Kant 155 [LNIND 1986 KANT 22] [LNIND 1986 KANT 22] [LNIND 1986 KANT 22]. 17 Surjeet Singh Chhabra v. Union of India, (1997) 1 SCC 508 [LNINDORD 1996 SC 215] [LNINDORD 1996 SC 215] [LNINDORD 1996 SC 215], 509 (para 3). 18 Avinash Nagra v. Navodaya Vidyalya Samiti, (1997) 2 SCC 534 [LNIND 1996 SC 1576] [LNIND 1996 SC 1576] [LNIND 1996 SC 1576], 542 (para 12). 19 SCHWARTZ, Adm. Law: A Casebook, 534 (1988).

8. RIGHT TO COUNSEL For sometime the dominant thinking has been to keep the lawyers away from the area of administrative adjudication. Denial of legal representation to the concerned party is justified on the ground that it saves expense and thus protects the poor against the rich, reduces delay, and prevents the proceedings from becoming too formal and technical. It is argued that informality, speed, and cheapness which are the hallmark of administrative adjudication result from the absence of lawyers. But there is also very strong opinion against denial of legal representation. In a case where complicated questions of law and fact arise, where evidence is elaborate and the party concerned may not be in a position to meet the situation himself effectively denial of legal assistance may amount to denial of natural justice. According to Allen, "experience has taught me that to deny persons who are unable to express themselves the services of a competent man is very mistaken kindness."20 Many a time, an unaided individual is no match against an expert and aided administrator. He may not be able to bring out the points in his favour or the weaknesses in the other side. In many cases, the right to be heard would be of little avail if counsel were not allowed to represent the affected party before the decision-maker. A lawyer can help in delineating the relevant issues, present factual contentions in proper manner, cross-examine witnesses and otherwise safeguard the interests of the concerned party. In some cases, questions of law may arise on which lawyers alone can competently argue. In Australia, appearance of a lawyer before a tribunal is the rule, his non-appearance an exception.21 In the U.S.A., the right of legal representation is guaranteed, for many purposes, by the combined effect of the "due process" clause of the U.S. Constitution and S. 555(b)of the Administrative Procedure Act, 1946. This provision runs as follows: "A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel... A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding..."

In England, the Franks Committee expressed the view that the right to legal representation "should be curtailed in the most exceptional circumstances, where it is clear that the interests of applicants generally would be better served by a restriction."22 Following the publication of the Franks Report, many of the restriction on legal representation before tribunals were in fact removed.23 There is however a difference of judicial opinion in England on the point whether a person can claim legal representation before an adjudicative body as a matter of natural justice where the relevant statute is silent on the point. In Pett (I),24 Lord DENNING in the Court of Appeal upheld the right to legal representation before a tribunal enquiring into matters affecting a man's reputation or livelihood or any matters of serious import at least where there is a right to an oral hearing. This was on the principle that what a person could himself do, he could get it done by his agent. Every person who is sui generis has a right to appoint an agent for any purpose whatever. There is no reason why the agent could not be a lawyer. "It is not every man who has the ability to defend himself on his own." Lord DENNING therefore went on to say: "I should have thought, therefore, that when a man's reputation or livelihood is at stake he not only has a right to speak by his own mouth. He has a right to speak by counsel or solicitor." But, in Pett II,25 when the same matter came again before the Court of Appeal, LYELL, J., dissented from the view of Lord DENNING expressed in Pett I. Discussing the matter again in Enderby26, Lord DENNING held that there is no absolute right to legal

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representation; it is a matter for the discretion of the adjudicator. But the adjudicator must exercise his discretion properly; he cannot lay down an absolute rule against legal representation; he should be willing to permit it in proper cases.27 In Fraser v. Mudge, 28 the Court of Appeal rejected a claim for representation by counsel in disciplinary proceedings. Lord DENNING referring to Pett I said that disciplinary cases were "a very different category". But this view underwent a change and in R. v. Secretary of State, ex p. Tarrant 29 where legal representation was allowed to prisoners in disciplinary proceedings because some of the charges raised difficult issues of interpretation and the others involved severe penalties. While a prisoner has no legal right to claim legal representation, the prison board has discretion in the matter. In this case, the Judge laid down the following criteria which may be considered by the prison board when exercising its discretion whether to allow legal representation or not: (i) the seriousness of the charge and the potential penalty; (ii) whether any points of law are likely to arise; (iii) the capacity of a particular prisoner to present his own case; (iv) procedural difficulties; (v) the need for reasonable speed in making their adjudication; (vi) the need for fairness as between prisoners and prison officers. This list is not intended to be comprehensive: particular cases may throw up other particular matters. In the instant case, the decision of the prison board refusing legal representation to the prisoners was quashed because the board did not consider the matter on merits as it took the view that it had no power to grant legal representation. In Hone,30 the House of Lords ruled again that a prisoner could not claim legal representation in a disciplinary proceeding as of right even when the charge laid_ against him constituted a crime in law. The matter of permitting legal representation is one of discretion with the board of visitors. Said Lord GOFF, "Everything must depend on the circumstances of the particular case." In India, while certain statutes recognise the right of being represented through a lawyer, certain statutes deny such a right and certain statutes permit it conditionally. Thus, S. 282 of the Income Tax Act, 1961, recognises a right to counsel in proceedings before the income tax authorities and the Appellate Tribunal.31 Under S. 36(2)(a)and (b) and S. 36(4)of the Industrial Distupes Act, a lawyer can appear before an industrial tribunal on behalf of a party only if he is holding an office as laid down in the section or with the consent of the other parties to the proceeding and with the leave of the industrial tribunal. In Paradip Port Trust v. Their Workmen, 32 the Supreme Court refused to interpret "and" between "consent of the parties" and "leave of the industrial tribunal" as "or". The Court gave a strict interpretation to S. 36(4)and read "and" therein as 'and' and not as 'or'. It therefore means that both conditions are cumulative and must be fulfilled and that they are not in the alternative. Therefore, a lawyer cannot appear before an industrial tribunal on behalf of one party without the consent of the opposite party and leave of the tribunal. In cases of disciplinary proceedings against civil servants, service rules provide that a civil servant may not engage a legal practitioner at the inquiry "unless the Disciplinary Authority, having regard to the circumstances of the case, so permits." In cases where the relevant statute is silent on the question of legal representation, to begin with, the judicial approach was halting; the view propounded was that legal representation is not an inevitable part of natural justice, and cannot be claimed as a matter of right.33 Legal representation was thus more of an exception rather than the rule. But, in course of time, the judicial view has softened somewhat on this question. The Supreme Court has however shown no inclination to accept Lord DENNING's thesis propounded in Pett I,34 as this would have meant that a party could be represented before an adjudicatory body by a lawyer as a matter of right.35 The position now is that while legal representation is not claimable as a matter of right, the hearing officer has discretion to permit the same. The Courts can however see whether the discretion has been exercised rightly, wrongly or arbitrarily. Denial of legal assistance to a party may amount to denial of natural justice when complicated questions of law and fact arise, when elaborate evidence is to be tendered and the party concerned may not be in a position to handle the case by himself, or when the other side is represented by a lawyer.36 If, however, there is no legal complexity in the case, and no oral testimony is to be recorded or when the party itself is qualified to handle the case, refusal of a counsel to him may not amount to violation of natural justice.37 It is thus ultimately for the Court to decide whether, in the circumstances of the case, denial of legal representation to the affected person was justified or not. In some situations, as discussed below, legal representation has almost become a matter of right. In disciplinary proceedings against students, legal representation has been invariably refused to the students.38

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Let us refer to some cases on preventive detention in this connection. Reading Art. 22(1) and Art. 22(3)(b) of the Constitution, its express intendment is that a detenu in preventive detention has no right to claim to consult, and be defended by a lawyer of his choice.39 This means that a detenu is not entitled to claim as of right legal representation before an advisory board. Since the Constitution itself contemplates that such a right should not be made available to a detenu, "it cannot be said that the denial of the said right is unfair, unjust or unreasonable."40 The Supreme Court maintained that "if Art. 22 were silent on the question of the right of legal representation, it would have been possible, indeed right and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards." But the advisory board may permit legal representation. The detenu is entitled to make such a request to the board and it is bound to consider such a request when so made." In Kavita,41 the Supreme Court emphasized that "as often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of the Constitution," as well as the statutory provision giving a right to be heard to a detenu. This valuable right may be jeopardized and reduced to mere nothing without adequate legal assistance in the light of the intricacies of the problems involved and other relevant factors. Therefore, whether or not legal assistance should be afforded by the advisory board must necessarily depend on the facts and circumstances of each case. The Court observed, ". . . Where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case." The Court further ruled that it was for the advisory board and not for the government to afford legal assistance to the detenu. Accordingly, the request for the purpose should be made to the board for permission to be represented by a lawyer. In Hemlata v. State of Maharashtra, 42 the Supreme Court was called upon to consider the question of legal representation before the advisory board in the context of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). The husband of the petitioner was detained under Section 3(1). The main question to consider was whether the detenu could claim legal representation before the advisory board. The board had said that in view of Section 8(e), the detenu was "not entitled to appear" before it "by any legal practitioner." Sec. 8(e) reads: A person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.

The Court pointed out that the section does not bar legal representation of a detenu by a lawyer. Only a detenu cannot claim representation by a lawyer as of right. According to the Court:43 "The Section has given the Board a discretion to permit or not to permit representation of the detenu by counsel according to the necessity in a particular case. Certain cases may be complicated and assistance of lawyers may be necessary on behalf of the parties to explain the facts and law involved in the case."

In the instant case, the board had rejected the detenu's request for legal representation on the ground that the board "has not permitted a legal practitioner to appear in any reference made to it" under the Act and hence the detenu's request "cannot be acceded to". The question thus was whether refusal of the board to permit legal representation of the detenu on the ground that in the past no legal representation had been allowed on behalf of any detenu was or was not based on a misconception of law. The Court did not give a direct answer to this question; as it said that it was merely academic for two reasons: (i) The advisory board whose action was challenged was not a party before the Court; and (ii) the board had already reviewed the case of the detenu and on its opinion the government had confirmed the detention. However, the answer to the question raised in this case seems to be that the exercise of its discretion by the board by way of refusing to permit legal representation merely on the basis of the past practice, without considering the merits of the case, was unjustified.44 In this connection, reference may be made to Lord DENNING's opinion in the Pett case.45 Under S. Section 11 of the National Security Act (NSA), the preventive detention advisory board can hear a detenu in person. Under S. 11(4), such a person is not entitled to appear before the board through any legal practitioner. S. 11(4)of NSA is equivalent to S. 8(e)mentioned above.

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The Supreme Court has held in A.K. Roy v. U.O.I., 46 a case under the NSA, that no party, neither the government nor the detaining authority, nor the detenu, would be entitled to have legal representation before the advisory board. But if the government has it, then the detenu also must have it. The Constitution does not contemplate that while the government has the facility of legal representation before the board, the same is to be denied to the detenu. If the government or the detaining authority is represented through a legal practitioner or legal adviser before the advisory board, the detenu must also have a similar right because of Arts. 14, 21and 39A.47 And the Court took an expansive view of the term 'legal adviser'. The Court ruled that the officers of the concerned department appearing before the board to justify the detention order fell within the category of legal advisers as "whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser."48 The reason for such a judicial view is that appearance of officers before the board amounts to doing 'indirectly' what cannot be done 'directly.' One should have regard to the substance of the matter and not merely the form. The Court further stated that even if a statute places an embargo on the appearance of a legal practitioner, the detenu should not still be prevented from seeking assistance of a friend "who, in truth and substance, is not a legal practitioner." Even in the absence of such a representation of the detaining authority before the advisory board, the detenu is to be allowed the assistance of a friend who is not a legal practitioner because "a detenu taken straight from his cell to the board's room may lack the ease and composure to represent his point of view. He may be tongue-tied, nervous, confused or wanting in intelligence . . ."49 The Court emphasized; "Every person whose interest is adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend." The advisory board must grant such a facility whenever demanded. In a case of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the department was represented before the advisory board by customs officers of the rank of deputy collector of customs and the superintendent. The detenu's request for representation by a retired assistant collector of customs as a 'friend' was rejected by the board on the ground that he was not a friend of the detenu. The detenu was a clearing and forwarding agent. The case before the board involved certain facets requiring acquaintance with legal provisions and the practices and procedures adopted by the customs authorities. The detenu was not familiar with these matters and so he wanted the assistance of a 'friend' named by him. The Supreme Court ruled in Johney D' Cuoto v. State of Tamil Nadu, 50 that the advisory board was wrong in rejecting the detenu's request. He had a right of being represented by a friend. The term 'friend' does not only mean "one who is well known" but also one who is an "ally in a fight or cause supporter." A person not being a friend in the normal sense could be picked up for rendering assistance before the advisory board. Also, since the authority had the assistance before the advisory board of high excise officials, the board had no justification to refuse the detenu's request. The detention order was accordingly quashed. The Supreme Court has given an expansive significance to the term 'friend' for assisting a detenu before an advisory board. A detenu under the National Security Act, 1980, sought permission for taking assistance of a friend to defend him before the advisory board but it was refused on the ground that he was a graduate and was able to defend himself. Following Roy and D'couto, the Supreme Court has now ruled in Anil Vats v. U.O.I., 51 that a detenu under NSA could not be denied assistance of a friend before the advisory board on the ground that he himself was a graduate and was competent to defend himself. The Court emphasized that the position of the detenue must be appreciated. "He may not properly be served by his memory, he may be nervous, incoherent and his faculties may be numbed. Assistance of a fiend would result in fairness of procedure towards the detenu." Accordingly, the detention order was quashed in the instant case. In an earlier case, Nandlal v. State of Punjab, 52 the detenu made the request for legal representation, but it was denied by the board. At the same time, the board allowed the detaining authority to be represented by lawyers. The Court characterised the denial of a lawyer to the detenu in these circumstances as according "differential treatment" to the detenu based on no "rational basis". The Court held that it was violative of Art. 14 for the board to allow the detaining authority to be represented by a lawyer but denying such a request of the detenu. The Court emphasized that although the detenu has no legal right to legal assistance in the proceedings before the board, it is not precluded from allowing such assistance to the detenu, particularly, when it allows the State to be represented by lawyers. The procedure of the board was held to be arbitrary vitiating the impugned order. The Court emphasized that the board must act in a manner which is just and fair to both the parties before it. The Supreme Court even suggested that Parliament should provide for legal representation before the advisory board.

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In State of A.P. v. Balaiangam Subbarajamma, 53 the board heard several top ranking police officers in support of the detention order against the detenu. On the other hand, the detenu's request for assistance by a friend was rejected. The Supreme Court quashed the detention order saying, "It is important for laws and authorities not only to be just but also appear to be just"; and that the advisory board should avoid the action that gives the "appearance of unequal treatment or unreasonableness." The Court emphasized: "It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case." In the instant case, the Supreme Court ruled that the board ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation on his side as the government and the police department did. These cases have thus very much expanded the right of a detenu to get assistance from a 'friend' or 'lawyer' in proceedings before an advisory board. An approach similar to the Roy approach has been adopted by the Court in Board of Trustees of the Port of Bombay, v. Dilipkumar, 54 a case involving disciplinary proceedings against an employee of a statutory authority on the ground of misconduct. Before the inquiry proceedings commenced, the Chairman, Port Board, rejected the request of the respondent for being represented by a legal practitioner. Also, the appellants appointed two legal advisers to present the case against the respondent before the inquiry officer. As a result of the inquiry the services of the respondent were terminated. Quashing the order, the Supreme Court ruled that it will be a violation of natural justice if the employee is represented by a presenting officer who is legally trained before the enquiry officer, while the employer denies such a facility to the employee. The Court said:55 In our view we have reached a stage in our onward march to fairplay in action that where in an enquiry before a domestic tribunal the delinquent officer is pitted against a legally trained mind, if he seeks permission to appear through a legal practitioner the refusal to grant this request would amount to denial of a reasonable request to defend himself and the essential principles of natural justice would be violated.

The Court went on to observe further:56 The enquiry officer combines the judge and prosecutor rolled into one. Witnesses are generally employees of the employer who directs an enquiry into the misconduct. This is sufficient to raise serious apprehensions. Add to this uneven scales, the weight of legally trained minds on behalf of employer simultaneously denying that opportunity to delinquent employee. The weighted scales and tilted balance can only be partly restored if the delinquent is given the same legal assistance as the employer enjoys. Justice must not only be done but must seem to be done is not an euphemism for Courts alone, it applies with equal vigour and rigour to all those who must be responsible for fair play in action.

If the employer is not represented at the inquiry by a legal expert, the inquiry officer has a discretion to allow or not legal representation to the employee. The inquiry officer has no such discretion once the employer is represented by a legal expert. The Court also went to the extent of saying that it was not necessary for the employee to make a request to the enquiry officer for being represented by a lawyer; the enquiry officer must enquire from the employee before the commencement of the enquiry whether he would like to take the assistance of a legal practitioner whenever he finds that the employer has appointed a legally trained person as the presenting officer. In the instant case, the enquiry was held to be defective and, consequently, the dismissal of the respondent on the basis of such an inquiry was quashed. In disciplinary proceedings against civil servants, the Supreme Court has not accepted the proposition that a civil servant has a right to engage a counsel at an enquiry against him without seeking the permission of the enquiry officer. It is for the enquiry officer to allow or not legal representation to the civil servant concerned. But if permission is refused, a question may arise whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that the civil servant did not get a reasonable opportunity to be heard in the circumstances of the case. It is ultimately for the Court to decide whether the discretion was rightly exercised or was it exercised so arbitrarily as to lead to the conclusion that the principles of natural justice were violated when the services of a lawyer were refused to the appellant.57 In Krishna Chandra,58 in a disciplinary inquiry against a civil servant, the Supreme Court ruled that refusal of lawyer's aid to the petitioner did not constitute an infirmity in the context of the facts of the case. First, under the rules,

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he was not entitled to the assistance of an advocate during the inquiry. Two, there was no oral evidence to be recorded at the inquiry and so a lawyer was not needed to cross examine witnesses. Three, there was no legal complexity in the case and the absence of a lawyer did not deprive the appellant of a reasonable opportunity to defend himself. In another case; a civil servant at an inquiry was pitted against a trained prosecutor, and his request for engaging a lawyer was refused; his request to get the help of a friend also was not acted upon in time. The Supreme Court came to the conclusion that in the circumstances he had not been offered a reasonable opportunity to defend himself. The Court also referred to Rule 15(5)of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, which says inter alia that a government servant may not engage a lawyer at an inquiry "unless the Disciplinary Authority having regard to the circumstances of the case so permits." The Court concluded that the grounds urged by the appellant to support his request for permission to engage a legal practitioner were not irrelevant. The fact that the case against him was being handled by a trained prosecutor was a good ground for allowing the appellant to engage a legal practitioner to defend him lest the scales be weighed against him. The disciplinary authority completely ignored that circumstance. The authority thus clearly failed to exercise the power conferred on it under the rule. It was not unlikely that the refusal to the appellant to engage a legal practitioner in the circumstances had caused serious prejudice to him. Accordingly, the order removing him from service was quashed as the inquiry was vitiated.59 The highlight of this case is the judicial response to the appellant's argument invoking the Pe tt I ruling in his favour and claiming a right to engage a lawyer on that basis, viz. what he could himself do, he could get done by an agent of his and a legal practitioner would be only his agent. The Supreme Court however refused to accept the argument saying that Pett had no bearing on the case at hand because here was -involved a statutory rule prohibiting appointment of a legal practitioner except in certain circumstances. Hence, the Court stated: "The agency theory has no relevance." The Court also stated that the Pett I rule did not commend itself to the Court. This does not seem to be a definitive view expressed by the Court on the applicability of the Pett's ruling in cases under natural justice as, in the instant case, the Court confined itself to the meaning and significance of a statutory rule. To the same effect is the Supreme Court ruling in J.K. Aggarwal v. Haryana Seeds Development Corporation .60 The relevant service rule gave a discretion to the inquiry officer to permit the services of a lawyer where the charges were so serious as to entail dismissal from service. This discretion, held the Court, was not properly exercised in the instant case because while the, corporation was represented by its personnel and administrative manager, who was a man of law, the appellant employee was denied the services of a lawyer, thus, making the contest an unequal one and this resulted in the breach of natural justice.61 Bhagat Ram v. State of H.P. 62 is an instructive case on this point. Disciplinary proceedings were initiated against a low-paid IV class government employee of the Forest Department. A notable aspect of the case was that his superior officer was also facing the inquiry for the same misconduct as he. But the superior officer was being represented by another departmental officer while the IV class employee had no one to defend him. The government had also appointed its own presenting officer. This employee did not ask for any help till a very late stage of the inquiry when his request was conceded. Nevertheless, the Supreme Court quashed his dismissal from service on the basis of the inquiry. The Court insisted that it was most unjust that between two well represented parties, the appellant had to defend himself. In the circumstances, it was the duty of the inquiry officer to enquire from him whether he would like to engage some one to defend him. The rules permitted such assistance. As this was not done by the inquiry officer, the inquiry was vitiated by non-observance of the principles of natural justice. These judicial decisions give a new lease of life to the principles of natural justice in general, and to the right of legal representation, as one of its limbs, in particular. These judicial pronouncements emanate from a greater realisation in judicial thinking about the ideal of socio-economic justice as the corner stone of Indian democracy. It now appears that, in certain circumstances, the inquiry officer may not only be under an obligation to permit legal representation when asked for but may also be under an obligation to himself enquire from the party before him whether he wants any such assistance. Such a duty will certainly arise when the concerned party is poor and illiterate and the other party has brought a lawyer on the scene. Fairness demands that no one should be condemned without a proper hearing. A poor and illiterate person may not be able to defend himself properly.

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The request to be represented by a counsel should be made by the party to the adjudicatory authority early in the proceedings, and not at a very late stage. Otherwise, the request may justifiably be denied. In Sunil Kumar, a case of departmental inquiry into certain charges against a member of the Indian Administrative Service, the appellant was not permitted by the inquiry officer to engage a lawyer. The rules in question gave discretion to the inquiry officer to permit or not to permit a delinquent officer to be represented by a lawyer. The appellant himself cross-examined the prosecution witnesses as well as the defence witnesses, but wanted permission to bring a lawyer at the argument stage. The inquiry officer rejected the request saying that it was made at a very belated stage. The Supreme Court thought that the inquiry officer was right in rejecting the request. The Court also pointed out that the appellant had himself argued the case in the Supreme Court and he did so admirably. From this it could be concluded that the denial of a lawyer could not have caused him any prejudice.63 On the other hand, the request to engage a lawyer was not regarded as belated when only one out of 25 witnesses of the employer had been examined and the second was in the process of being examined.64 It is suggested that the Supreme Court may consider in a suitable case whether or not, in the context of the Indian situation, the rule propounded by Lord DENNING in Pett I should be adopted. It would be a distinct advantage to the individual if the Pett I principle is adopted at least in those cases which involve serious consequences for the individual. In a large number of situations, the statute is silent on the question of legal representation. The Pett I ruling becomes advantageous to the individual concerned in such cases. In the matter of legal representation before adjudicatory bodies, it may be better to adopt a liberal attitude in the interest of justice to the affected person. The Courts exercise only a marginal control on fact finding by adjudicatory bodies, and, therefore, a lawyer at the hearing stage can be a great help for proper marshalling of evidence and for proper interpretation of the law. The Supreme Court has held recently65 that when a person is being interrogated by customs or FERA authorities, the presence of a lawyer is not necessary. The person cannot be regarded as an accused so as to attract the protection of Art. 20(3),66 nor does it violate the norm of 'just, fair and reasonable' procedure under Art. 21.67

20 Administrative Jurisdiction, 79 (1956). Also see, WHITMORE, The Lawyer in Administrative Justice, (1990) 33 MLR, 481. 21 ERNST WILLHEIM, Legal Representation before Administrative Tribunals, 43 ALJ 64 (1969); J.W. ADLER, Representation before Tribunals, (1972) Pub. Law, 278. 22 Para 87 of the Report. See, JAIN, Cases, Chapter XII, Sec. B. 23 First Report of the Council on Tribunals, para 76. 24 Pett v. Greyhound Racing Ass. (1968) 2 WLR 1471: (1968) 2 All ER 545; supra, note 128a. For a comment on the case, see, 84 LQR 451 (1968). See, JAIN, Cases, Chapter IX, Sec. E, 698. 25 Pett v. Greyhound Racing Ass., (known as Pett II) (1969) 2 All ER 221. 26 Enderby Town F.C. Ltd. v. Football Ass. Ltd., (1971) 1 All ER 215. 27 Also see, R. v. Race Relations Board ex p. Selverajan, (1975) 1 WLR 1686; Maynard v. Osmond, (1977) QB 240. 28 (1975) 1 WLR 1132. 29 (1985) QB 251; JAIN, Cases, 699. 30 R. v. Board of Visitors of H.M. Prison, The Maze, ex p. Hone, (1988) 1 AC 379. 31 See, Chapter XIII., Infra. 32 AIR 1977 SC 36 [LNIND 1976 SC 320] [LNIND 1976 SC 320] [LNIND 1976 SC 320]: (1977) 2 SCC 339: 1976 (2) LLJ 409 [LNIND 1976 SC 320] [LNIND 1976 SC 320] [LNIND 1976 SC 320]. 33 Kalandi v. Tata Locomotive & Engineering Co., AIR 1960 SC 914 [LNIND 1960 SC 95] [LNIND 1960 SC 95] [LNIND 1960 SC 95]: 1960 (2) LLJ 228: 1960 (3) SCR 407 [LNIND 1960 SC 95] [LNIND 1960 SC 95] [LNIND 1960 SC 95]; Narayan Das v. State, AIR 1968 Ori 14 [LNIND 1967 ORI 13] [LNIND 1967 ORI 13] [LNIND 1967 ORI 13]; K.C. Cyriac v. Vice-Chancellor, AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41]

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34 Pett v. Greyhound Racing Assn., (1968) 2 WLR 1471. 35 C.L. Subramaniam v. Collector of Customs, AIR 1972 SC 2178: (1972) 3 SCC 542; H.C. Sarin v. U.O.I., AIR 1976 SC 1686 [LNIND 1976 SC 176] [LNIND 1976 SC 176] [LNIND 1976 SC 176]: (1976) 4 SCC 765; K.C. Cyriac v. Vice-Chancellor, AIR 1960 SC 914 [LNIND 1960 SC 95] [LNIND 1960 SC 95] [LNIND 1960 SC 95]: (1960) 3 SCR 407. 36 N.N. Bagchi v. Chief Secretary, West Bengal, AIR 1961 Cal 1 [LNIND 1960 CAL 125] [LNIND 1960 CAL 125] [LNIND 1960 CAL 125]; Zonal Manager, L.I.C. v. City Munsiff, Meerut, AIR 1968 All 270 [LNIND 1967 ALL 39] [LNIND 1967 ALL 39] [LNIND 1967 ALL 39]. 37 Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374; Hari Prasad Singh v. C.I.T., AIR 1972 Cal 27 [LNIND 1971 CAL 133] [LNIND 1971 CAL 133] [LNIND 1971 CAL 133]. 38 K.C. Cyriac v. Vice-Chancellor, AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41]. 39 JAIN, Indian Constitutional Law, 602-609. But in Francis Coralie v. State of Delhi, AIR 1981 SC 746 [LNIND 1981 SC 27] [LNIND 1981 SC 27] [LNIND 1981 SC 27]: 1981 Crlj 306: (1981) 1 SCC 608 [LNIND 1981 SC 27] [LNIND 1981 SC 27] [LNIND 1981 SC 27], the Supreme Court has held (invoking Art. 21) that a detenu has a right to consult a legal adviser of his choice for securing release from preventive detention. 40 A.K. Roy v. U.O.I., AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: 1982 Crlj 340: 1982 SCC (Cri) 152 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]. Also, Kavita v. State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]: (1981) 3 SCC 558: 1981 Crlj 1262. This is also the interpretation put on S. Section 10, National Security Act, S. 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and S. 11(4)of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980; see, Nandlal v. State of Punjab, AIR 1981 SC 2041 [LNIND 1981 SC 388] [LNIND 1981 SC 388] [LNIND 1981 SC 388]: (1981) 4 SCC 327: 1981 Crlj 1501. 41 Kavita v. State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]: (1981) 3 SCC 558. 42 AIR 1982 SC 8 [LNIND 1981 SC 422] [LNIND 1981 SC 422] [LNIND 1981 SC 422]: (1981) 4 SCC 647: 1982 Crlj 150. 43 Hemlata v. State of Maharashtra, AIR 1982 SC 8 [LNIND 1981 SC 422] [LNIND 1981 SC 422] [LNIND 1981 SC 422]at 11: (1981) 4 SCC 647 [LNIND 1981 SC 422] [LNIND 1981 SC 422] [LNIND 1981 SC 422]: 1982 Crlj 150. 44 See, Kavita v. State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]: 1981 Crlj 1262: (1981) 3 SCC 558 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]. 45 Pett v. Greyhound Racing Asstt., (1968) 2 WLR 1471: (1968) 2 All LR 545. For a comment on the case, see, 84 LQR 451 (1968). 46 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271: 1982 SCC (Cri) 152 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: 1982 Crlj 340; JAIN, Cases, 718. Also see, Devji Vallabhbhai v. Administrator, Goa, Daman, and Diu, AIR 1982 SC 1029 [LNIND 1982 SC 76] [LNIND 1982 SC 76] [LNIND 1982 SC 76]: (1982) 2 SCC 222: 1982 Crlj 799; Abdul Zabbar v. State of Rajasthan, AIR 1983 SC 505 [LNIND 1982 SC 164] [LNIND 1982 SC 164] [LNIND 1982 SC 164]: (1984) 1 SCC 443. 47 For discussion on these Articles, see, infra, Chapter XVII. 48 JAIN, Cases, 722. 49 AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]at 747: 1982 Crlj 340: 1982 SCC (Cri) 152 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]; JAIN, Cases, 723. 50 AIR 1988 SC 109: (1988) 1 SCC 116: 1988 Crlj 178: 1987 (3) Crimes 894, JAIN, Cases, 727. Also see, Vijay Kumar v. U.O.I., AIR 1988 SC 934 [LNIND 1988 SC 141] [LNIND 1988 SC 141] [LNIND 1988 SC 141]: (1988) 2 SCC 57: 1988 Crlj 951: 1988 (3) Crimes 50. 51 AIR 1991 SC 979: 1991 Crlj 605: 1991 Supp (2) SCC 661. 52 AIR 1981 SC 2041 [LNIND 1981 SC 388] [LNIND 1981 SC 388] [LNIND 1981 SC 388]: (1981) 4 SCC 327: 1981 Crlj 1501. Also, Kavita v. State of Maharashtra, AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]: (1981) 3 SCC 558: 1981 Crlj 1262. 53 AIR 1989 SC 389 [LNIND 1988 SC 524] [LNIND 1988 SC 524] [LNIND 1988 SC 524]: (1989) 1 SCC 193: (1988) 3 Crimes 728; JAIN, Cases, 729. 54 AIR 1983 SC 109 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]: (1983) 1 SCC 124: 1983 (1) LLJ 1 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]. Also, JAIN, Cases, 714. 55 AIR 1983 SC 109 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]at 113: 1983 (1) SCR 828 [LNIND

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1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]: 1983 (1) SLR 464; JAIN, Cases, 717. 56 AIR 1983 SC 109 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]at 111-112: 1983 (1) LLN 314: 1982 (2) Scale 1097 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]; JAIN, Cases, 716. 57 H.C. Sarin v. U.O.I., AIR 1976 SC 1686 [LNIND 1976 SC 176] [LNIND 1976 SC 176] [LNIND 1976 SC 176]: (1976) 4 SCC 765: 1976 (2) SLR 248 [LNIND 1976 SC 176] [LNIND 1976 SC 176] [LNIND 1976 SC 176]. For a survey of the case-law on this point till 1974, see, Lakshmi Swaminathan, A Civil Servant's Right to be Represented, (1974) 16 J.I.L.L, 282. 58 See, Krishna Chandra v. U.O.I., AIR 1974 SC 1589: AIR 1974 SC 374. 59 C.L. Subramaniam v. Collector of Customs, AIR 1972 SC 2178: (1972) 3 SCC 542: 1972 (1) LLJ 465; JAIN, Cases, Chapter IX, Sec.E. 709. 60 AIR 1991 SC 1221: 1991 (2) LLJ 412: (1991) 2 SCC 283; JAIN, Cases, Chapter IX, Sec. E. 712. 61 See, Board of Trustee of the Port of Bombay v. Dilip Kumar, AIR 1983 SC 109 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]: (1983) 1 SCC 124: 1983 (1) LLJ 1 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]. 62 AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]: (1983) 2 SCC 442: 1983 (2) LLJ 1 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]. 63 Sunil Kumar v. State of W.B., AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]: (1980) 3 SCC 304. 64 A.K. Roy v. U.O.I., AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: (1982) 1 SCC 271: 1982 SCC (Cri) 152 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: 1982 Crlj 340. 65 Poolpamardi v. Supdt., Central Excise, AIR 1992 SC 1795 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405]: (1992) 3 SCC 259: 1992 Crlj 2761: 1992 (2) Crimes 648 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405]; JAIN, Cases, Chapter XII. 66 For an explanation of the scope of Art. 20(3), see, JAIN, Indian Constitutional Law, 568; JAIN, Cases, Chapter XII. 67 For Art. 21, see, JAIN, Ind. Const. Law, 576 and JAIN, Cases, Chapter XV.

9. REASONED DECISION As Lord DENNING has emphasized in Breen,68 the giving of reasons for a decision is one of the fundamentals of good administration. It constitutes a safeguard against arbitrariness on the part of the decision-maker. Articulating the bases of a decision can improve the quality of decision making in a number of significant ways. First, an administrative officer develops a habit of mind to look at things from the standpoint of policy and administrative expediency. This mental attitude does not change from function to function. If he is made to give reasons for his decision, it will impose some restrictions on him in a matter involving personal rights. Secondly, if an adjudicator is obligated to give reasons for his conclusions, it will make it necessary for him to consider the matter carefully. The condition to give reasons introduces clarity, ensures objectivity and impartiality on the part of the decision-maker and minimizes unfairness and arbitrariness for "compulsion of disclosure guarantees consideration". The adjudicator will have to give such reasons for his decisions as may be regarded fair and legitimate by a reasonable man and thus it will minimize chances of irrelevant or extraneous considerations from entering his decisional process, and it will also minimize chances of unconscious infiltration of personal bias or unfairness in his conclusions. The mere fact of explaining to others the bases upon which a decision has been reached conduces to a careful marshalling and weighing of evidence and arguments by the decision-maker. Giving of reasons for his decision is a guarantee that the decision-maker has applied his mind to the facts and circumstances of the case and has not reached his decision mechanically or arbitrarily, or on irrelevant considerations; that he has reached the decision according to law and not according to caprice, whim or fancy, or on grounds of policy or expediency.. In this way, giving of reasons acts as a substantial check upon misuse of power by the decision-maker. The obligation to give reasons operates as a deterrent against arbitrary action of the adjudicatory bodies, and very much improves the quality of decision making, and instils in adjudicatory bodies a greater sense of responsibility. It very much reduces the possibility of unscrupulous officials abusing adjudicatory powers conferred on them. Secondly, the existence on file of earlier reasoned decisions is likely to assist the decision-maker in the future and to encourage the development of clear policies and consistency. Thirdly, the publication of reasons may increase public confidence in the administrative process,

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particularly, by assuring those adversely affected by a decision that it has not been made arbitrarily and that the relevant points which may support a contrary view have not been ignored but given due consideration. By looking at reasons, parties may know why they lost the case. Giving of reasons ensures that the hearing was not simply a meaningless charade. Unless an adjudicatory body is required to give reasons and make findings of fact, indicating the evidence upon which it relied, there is no way of knowing whether the concerned body genuinely addressed itself to the arguments and evidence advanced at the hearing. It is a well known principle that justice should not only be done but should also seen to be done.69 Unreasoned decisions may be just but they may not appear to be just to those who read them. Reasoned conclusions, on the other hand, will have the appearance of justice. Fourthly, the Supreme Court has emphasized that the Administration is under a general duty to act fairly and fairness founded on reason is the essence of the right of equality.70Fifthly, under many laws, decisions of a lower adjudicatory body are appealable to, or are subject to revision by, a higher adjudicatory authority. An individual who is entitled to have the decision reviewed by a higher administrative tribunal, may be unable to exercise this right effectively unless he knows the bases upon which the original decision rested. In the absence of reasons, the statutory right of appeal may become nugatory. Summary orders by lower authorities reduce (the appeal provisions to silence. Failure to give reasons amounts, in substance, to depriving the affected party of the right of appeal or revision. Sixthly, giving of reasons is an aspect of the right of knowing and a part and parcel of the concept of open government.71 Giving of reasons thus gives satisfaction to the party against whom the decision is made. Justice should not only be done but should also seen to be done. An unreasoned decision may be just but may not appear to be so to the person affected. A reasoned decision, on the other hand, has the appearance of fairness and justice.72Seventhly, the task of a reviewing Court is made easier if the tribunal has stated the reasons for its decision. The reasons may persuade the Court that the decision was justified in the light of the true nature of the problems with which the tribunal was dealing. Alternatively, of course, the Court may infer from the reasons or findings of fact that the tribunal had in some important way misunderstood its statutory mandate, or that the evidential basis for a finding of fact was quite inadequate.73 Absence of reasons may restrict the Court's capacity to effectively discharge its function of ensuring that the decision was made on legally valid grounds and thus vitiate the right of review. In the absence of a speaking order, i.e. an order which speaks for itself or tells its own story, or, in other words, give reasons, the Courts will be at a loss to understand the working of the mind of the concerned adjudicatory body, and so it will not be possible for the Court to decide whether there is any legitimate ground for the Court to interfere with the decision of the body. The Court's supervisory function can be discharged effectively only when the decision-making authority reveals its own mind and thought processes. In short, the obligation to give reasons for their decisions is bound to improve the quality of adjudication by adjudicatory for it is bound to instil in them a greater sense of responsibility and care in disposing of cases coming before them for adjudication. Not giving of reasoned decisions may be convenient for the authorities but it certainly does not promote good administration. Failure to give reasons does little to instil public confidence in the correctness of the decisions rendered by adjudicatory bodies. The Supreme Court has observed in this regard:74 "Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the tribunal itself. Therefore, statement of reasons is one of the essentials of justice."

Hitherto, the common law has failed to develop any requirement, as part of natural justice, that adjudicatory bodies should give reasons for their decisions.75 A general requirement for adjudicatory bodies to give reasons for their decisions is not regarded as a part of natural justice and, accordingly, adjudicatory bodies are not obligated to give reasons in support of their decisions. But an obligation to give reasons could be imposed on a body by legislation. In England, the Franks Committee insisted that there should be a general practice for adjudicatory bodies to give reasons for their decisions.76 This suggestion has been given statutory force to a limited extent. S. 1.2of the Tribunals and Inquiries Act, 1958 (now Act of 1971) provides that a tribunal (listed in the First Schedule to the Act) must give written or oral reasons for its decision if so requested by the parties, unless grounds of national security require to the contrary.77 It has been laid down judicially that this provision means that adequate reasons shall be given. "The reasons that are set out must be reasons which will not only be intelligible but which deal with the substantial points that have been raisad."78 Under the above-mentioned provision, there is no automatic duty on the tribunal to give reasons; the obligation to do so arises only if the

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parties to the dispute demand reasons. On the other hand, in the U.S.A., S. 557(c)of the Administrative Procedure Act requires that administrative decisions be accompanied by findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of law, facts and discretion. The statutory obligation to give reasons in the U.S.A. is broader than that in England in at least two respects: (i) In the U.S.A., the obligation to give reasons rests on all adjudicatory bodies; in England, such an obligation rests only on tribunals listed in the Act, mentioned above, and not all adjudictory bodies; (ii) In the U.S.A., the obligation to give reasons is automatic; the party need not demand the same as in England.79 As stated above, there is no general common-law duty to furnish the reasons for a decision.80 This constitutes a significant gap in the procedural protection in England. This rule has been criticised by administrative lawyers who assert that such a general duty should exist on the decision-maker. However, during the last few years, the Courts have initiated the process of engrafting some exceptions on the general rule and have imposed an obligation on some specific bodies to give reasons for their decisions in certain circumstances. The Courts have justified these exceptions on the following grounds:81 (1 (2 (3

When an individual has a right of appeal from the decision of a body, and such a right may be frustrated in the absence of reasons being given by the concerned body, then it must give reasons. This proposition has recently bean extended to cover judicial, review as well. There may exist a legitimate expectation that the deciding authority would give reasons for its decisions. This may create an obligation on the concerned body to give reasons which may not exist in the absence of such an expectation. The obligation to give reasons may arise as an element of natural justice/fairness. There is a growing judicial tendency now to base the obligation to give reasons on natural justice or fairness. As Lord DONALDSON, M.R observed dismissing the appeal of the Civil Service Appeal Board in Cunningham:

"I would therefore dismiss the appeal not only on the ground of legitimate expectation..., but also on the broader ground that fairness requires a tribunal such as the board to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully."

While the common law rule that there is no general duty to give reasons still remains intact,82 the Courts are progressively and gradually diluting the efficacy of the rule by engrafting exceptions thereon and, thus, are gradually expanding the scope of the duty to give reasons. The present-day judicial strategy is to decide from case to case whether the specific adjudicatory body involved in a specific case is obligated to give reasons in the specific circumstances of that case. It has been said that the duty to give reasons would be "the most beneficial improvement which could be made to English administrative law."83 A hope has been expressed that, in course of time, the exceptions would eat away the general common-law rule against giving reasons, so much so that exceptions would become the rule and the rule an exception.84 In India, the position is somewhat different as the Courts have shown a good deal of creativity in this area. A very significant achievement of the Indian Courts is to develop the idea that natural justice demands that adjudicatory bodies give reasons for their decisions. The Supreme Court has also argued that, as several constitutional provisions guarantee judicial control of adjudicatory bodies, it is obligatory for such bodies to render reasoned decisions so as to make judicial control effective and meaningful. When a statute imposes the requirement of giving reasons for taking a decision, the provision is treated as mandatory and thus failure to give reasons would be fatal to the action taken. The statutory duty to record reasons for a decision can be enforced through a writ of mandamus.85 The recording of reasons ensures that the authority applies its mind to the case and that the reasons which impelled the authority to take the decision in question are germane to the content and scope of the power vested in the authority. If the reasons recorded are totally irrelevant, the exercise of the power becomes void.86 In Uma Charan v. State of M.P., 87 a member of the State Police Service was superseded by the selection committee in the matter of promotion. A regulation required the Selection Committee to record "its reasons for the proposed supersession", but the committee omitted to do so. The Supreme Court ruled that the selection committee had infringed a mandatory duty imposed on it by the regulation. Accordingly, the decision of the selection committee was quashed. A very significant decision in this area is Maneka Gandhi v. U.O.I. 88 Under S.

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10(5)of the Passport Act, 1963, the authority is to record its reasons and furnish a copy of the same to the concerned individual on demand while impounding his passport. The authority may however refuse to give reasons in public interest among other grounds. In Maneka, the authority refused to supply the reasons for impounding her passport on the ground that it was not in the interest of the general public to do so. When the order was challenged in the Supreme Court, the authority in its affidavit before the Court revealed the reasons for making the order. Looking at the reasons, the Court commented that no reasonable person could possibly have taken the view that the interests of the general public would be prejudiced by the disclosure of these reasons. "This is an instance showing how power conferred on a statutory authority to act in the interest of the general public can sometimes be improperly exercised." The Court ruled that the authority is not by itself the final authority to determine the question that non-disclosure of reasons in a particular case is in public interest. BHAGWATI, J., stressed that giving of reasons is a healthy check against abuse or misuse of power as the order impounding the passport can be quashed if the reasons for doing so are extraneous or irrelevant. The Court would be very slow in accepting the claim of the passport authority that it would not be in public interest to disclose the reasons. The authority would have to satisfy the Court by placing proper material before it that the giving of reasons would be "clearly and indubitably" against the interest of the general public. If the Court is not so satisfied it would require the authority to disclose the reasons. Maneka thus represents the high watermark of judicial insistence on adjudicatory authorities to give reasons for their decisions. Under Art. 311(2)(b), when a person is being dismissed without an enquiry, reasons are to be recorded by the disciplinary authority for not holding the inquiry. It has been held that if such reasons are not recorded, the order dispensing with the enquiry and the order of dismissal following thereupon would be void. But the communication of these reasons to the concerned civil servant is not obligatory, though it is desirable to do so with a view to avoiding an allegation that reasons were concocted later on.89 But then, it is not often that a statute imposes a condition for giving reasoned decisions by adjudicating bodies. To cover such situations, the Supreme Court has spelled out a general obligation for adjudicatory bodies to give reasons for their decisions partly from natural justice, and partly from the various constitutional provisions providing for judicial review.90 The Supreme Court feels that the judicial review over adjudicatory bodies would be very much weakened if such bodies do not give reasons for their decisions.91 Also, if the lower authorities do not give reasoned decisions, then the higher authorities cannot effectively review their decisions. Thus, failure to give reasons by lower adjudicatory bodies effectively deprives the person affected of his right to seek a review at a higher level even when he has a statutory right to do so.92 Now, the proposition is firmly established that an adjudicatory body must give reasons for its decisions. The proposition that the decisions of an adjudicatory body must be a reasoned one has been reiterated by the Supreme Court93 and the High Courts94 in a number of cases. For example, from a decision of a regional transport authority refusing to grant a permit, the respondent took an appeal to the appeal board which dismissed the appeal through a non-speaking order. He then filed an appeal with the Minister of Transport under S. Section 64Aof the Motor Vehicles Act, 1939, who dismissed the appeal without giving any reasons for his decision. The High Court quashed the Minister's decision and remanded the case back to the government for fresh hearing saying that the respondent was entitled to know the reasons for dismissal of his application so that he might take necessary steps against the order in question.95 A government order removing a member of the electricity board was quashed as it was not a speaking order and did not indicate the process of reasoning by which the government reached its conclusion that the petitioner had rendered himself unfit for continuing as a member of the electricity board.96 In another case,97 an order stopping one increment with cumulative effect was quashed as it was not a speaking order. In Woolcombers,98 while hearing an appeal from the decision of an industrial tribunal, the Supreme Court underlined the significance of quasi-judicial bodies giving reasons for their decisions, especially those which are exercising an initial jurisdiction. In Siemens,99 the Supreme Court emphatically reiterated that the rule requiring reasons to be given in support of an order is a basic principle of natural justice which must inform the quasi-judicial process. In this case, a matter of assessment of customs duty passed through three stages of adjudication--assistant collector of customs, collector and the Central Government--before finally reaching the Supreme Court under Art. 136. None of the adjudicatory authorities chose to give reasons in support of the order made by it. Criticising this state of affairs the Court emphasized that adjudicatory authorities should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of their orders. That way, the adjudicatory bodies will carry credibility with the

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people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is a basic principle of natural justice which must inform every quasi-judicial process. It has been held, accordingly, that an order revoking a licence passed under S. 12(1)of the Industries (Development and Regulation) Act must "contain reasons why proceeding was drawn up, the grounds relied upon by the subject and the reasons for not accepting the grounds."1 The Court held that the impugned order was vitiated as no reasons were given. Even if the reasons were given in the show cause notice, that would not absolve the authority from giving reasons in the final order. The Delhi High Court has ruled that it is no ground for not giving reasons that no useful purpose would be served by them or that the absence of reasons would not cause any prejudice to the concerned person.2Section 294-AA of the Companies Act, 1956, requires previous approval of the Central Government for the appointment of a sole selling agent by a company. The Delhi High Court has ruled in Ramesh B. Desai v. U.O.I., 3 that while deciding an application under the above provision, the authority must give reasons for its order irrespective of what may be the nature of the power of approval. An authority vested with power to determine questions affecting the rights of the citizens must exercise that power in conformity with the rules of natural justice.4 In Harbhajan Singh v. U.O.I., 5 the Supreme Court has held that the Central Government must pass a reasoned order while exercising its power under S. 86, CPC, for granting/rejecting permission to a person to sue a foreign embassy. Absence of reasons may indicate non-application of mind by the decision-making authority.6 In Anil Kumar v. Presiding Officer, 7 in a disciplinary enquiry against a civil servant, the report of the enquiry officer merely stated the charges, the dates of the enquiry proceedings, names of witnesses and his conclusions to the effect that "non-obeying of the instructions of his seniors and leaving the place of work without proper permission is a serious case of misconduct, negligence of duty and indiscipline." On the basis of such a report, the services of the appellant were terminated. The Supreme Court deprecated such an enquiry report as it revealed that the enquiry officer had failed to apply his mind to the evidence on record. D.A. DESAI, J., made the following comment:8 "Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order-sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceedings disclosing non-application of mind would be unsustainable."

The Court found the report of the enquiry officer to be a non-speaking one where conclusions were not supported by reasons. Accordingly, the impugned order was quashed.9 The Central Government passed an order under S. Section 22 of the Monopolies and Restrictive Trade Practices Act, 1969, (MRTP), approving the respondent's proposal to set up a new undertaking for manufacturing activated earth. The impugned order did not indicate that all the objections raised by the appellants against the proposal had been considered by the government particularly when only some of them had been mentioned in the order. Quashing the order in Ormamco Chemicals,10 Supreme Court insisted that the government's order must contain good reasons in its support and not merely state its 'bald conclusion'. The Supreme Court ruled that the powers of the Monopolies and Restrictive Trade Practices Commission to pass an order under the MR TP Act is quasi-judicial in nature and that the Commission is under a duty to pass only speaking orders.11 The facts of Ratna12 are given later. The Supreme Court has ruled in the instant case that the Council of the Institute of Chartered Accountants is obligated to give reasons for finding a member guilty of misconduct. In fairness and justice, the member is entitled to know why he has been found guilty. He has a right of appeal to the High Court against the Council decision. To exercise this right effectively, he must know the basis on which the Council has found him guilty. This ruling applies to all bodies regulating various professions. To shorten litigation, the disciplinary authority may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof and when a court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law.13 In case the disciplinary authority disagrees with the findings recorded by the Enquiry Officer, the authority should record reasons for such disagreement.14 In spite of the dominant trend to insist on adjudicatory bodies to give reasons for their decisions, cases are

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not wanting where judges have sounded a discordant note thus making the position somewhat confusing. Thus, in the context of the Army Act, the Supreme Court took a restrictive view on the question of reasoned decisions in Som Datt Datta v. U.O.I. 15 A Constitution Bench of the Supreme Court stated: "Apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is no legal obligation that the statutory tribunal should give reasons for its decision. There is no legal obligation that the statutory tribunal should give reasons for its decision. There is also no general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision."

Thus, instead of confining itself to the Army Act, the Court made a sweeping statement not only denying the existence of case-law requiring giving of reasoned decisions, but also seeking to introduce the English common law position in India.16 But such a judicial approach can no longer prevail and the obligation of adjudicatory bodies to give reasons is now well established17 Recently in S. N. Mukherjee v. U.O.I., 18 the Supreme Court has however asserted:19 "....the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review."

The Supreme Court has also stated: "A right to reason is, therefore, an indispensable part of sound system of judicial review. Reasoned decision is not only for the purpose of showing that the citizen is receiving justice, but also a valid discipline for the Tribunal itself. Therefore, statement of reasons is one of the essentials of justice".

Even in respect of administrative orders, Lord DENNING, M.R. in Breen v. Amalgamated Engg. Union 20 observed: "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree 21 it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.22 The Apex Court held that the Disciplinary Committees of the Bar Councils should in disciplinary matters, pass speaking orders; they must set out reasons for which they are passed. Where the orders are based upon evidence, as is usually the case with complaints against advocates, there must be some analysis of the evidence and the conclusion must be based on such analysis. It is not enough to state the conclusions without indicating the material on record upon which such conclusions are based.23The Consumer Protection Act, 1986 is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimises, the chances of arbitrariness and the higher forum can test the correctness of those reasons.24 It is a settled law that, if any material adverse to the employee formed a foundation for his termination, the principles of natural justice may necessarily require that prior opportunity of notice be given and after considering his reply appropriate order may be passed giving reasons is support thereof. Hence the setting aside of the termination order of the employee on the basis of a report that he had produced a false income certificate to procure his appointment without complying with this law, was not interfered with.25

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Rule 4.8of the Punjab State Service Rules, vol. I, Part I, provides that where an efficiency bar is prescribed in a time-scale, the next increment above the bar is not to be given to an employee without the specific sanction of the authority empowered to withhold increments. This provision does not contemplate any hearing being granted to an employee before a decision is taken with regard to permitting or non-permitting an employee to cross the efficiency bar. When an efficiency bar is inserted in a time-scale it only means that at that stage annual increment is not as of right but the bar will be removed, and an employee allowed further increments, if the authority concerned comes to the conclusion that such an employee is not inefficient. An opinion to this effect has necessarily to be a subjective one though it must be based on relevant facts. Further, in the instructions, issued by the Govt., it has been stated that an order stopping an employee at an efficiency bar should be by a speaking order and sufficient details should be given so that an employee can, if he so desires, make a representation against the same. Besides providing for a post facto hearing, a concept which is not unknown to the principles of natural justice, the speaking order which is passed can also be subjected to judicial review, as has been done in the present case. The passing of speaking order, however, does not mean that before the authority concerned comes to the conclusion of stopping a person at the efficiency bar stage, an opportunity of hearing must be given to him. Consideration of all materials before taking the decision is sufficient compliance of the requirement.26 The U.P. Jal Nigam Rules provided for communication of an adverse entry to an employee but not of downgrading of an entry. However, agreeing with the High Court's view that even downgrading of entry may be adverse and affect the employees career, the Supreme Court held that the authority recording the entry in such a situation is required to record reasons for such downgrading on the personal file of the employee and inform him of the change in the form of an advice.27 In U.P.S.C. v. K. Rajaiah, 28 the Supreme Court held that the classification given by the State Govt. authorities in the ACRS of the employees for the purposes of consideration for their promotion, is not binding on the Selection Committee. For good reasons the committee can evolve its own classification and there is no legal requirement that the committee should record reasons for classifying an officer at variance with the State Govt.'s classification. In Municipal Corporation v. Chelaram & Sons, 29 it was held that before eviction of an occupant from the land and the superstructure thereon under Section 54of the Bombay Town Planning Act, 1955 read with Rule 27of the Bombay Town Planning Rules, 1955 in the light of the sanctioned scheme, after hearing the occupant concerned, a speaking order must be passed. Rule 37-Aof the Gujarat Sales Tax Rules, 1970, gives power to the Commissioner of Sales Tax to stay assessment proceedings. The Commissioner is required to put in writing the "reasons and circumstances" that necessitate the stay of proceedings. The stay of assessment proceedings has consequences of a civil nature upon an assessee. The more the time that elapses, the more difficult it is for the assessee to prove his accounts and claim set-off, exemptions and the like. The Supreme Court was of the view that, in the circumstances, the power under Rule 37-Amay not be exercised by the Commissioner without first giving to the assessee notice to show cause why his assessment proceedings should not be stayed for a stated period. The notice should set out what the reasons and circumstances are which, according to the Commissioner, necessitate such stay so that the assessee has the opportunity of meeting the same. This is a requirement of natural justice that, having regard to the scope of Rule 37-A, requires to be read into it.30 The Section 20(1)(b)of the Urban Land (Ceiling and Regulation) Act, 1976,providesthat the vacant land in excess of the ceiling limit may be exempted from acquisition in case the State Govt. is satisfied that such acquisition would cause undue hardship to the land holder but reasons for the same shall have got to be recorded in writing. However, under Section 20(1)(a)for granting such exemption, if same is necessary or expedient in public interest, recording of reasons has not been provided for. The Supreme Court held that the requirement of recording of reasons in writing is implicit even in absence of express statutory provision in that regards.31 In case of culpable delay in delivering possession of a plot without any contributory negligence of the allottee resulting in harassment/injury both mental and physical higher rate of interest can be awarded by a speaking/reasoned order.32 Since the order of the Central Govt. refusing or granting the sanction for prosecution under Section 6of the Armed Forces (Special Provisions) Act, 1958 (as amended) is subject to judicial review, the Central Govt. shall pass an order giving reasons.33 Certain employees approached the High Court against the termination of their services but the High Court dismissed their writ petitions in limine though their writ petitions raised some arguable points. The Apex Court held that dismissing the writ petitions without assigning any reasons deprived the Supreme Court of knowing the circumstance which weighed with the High Court to dismiss the petitions at threshold. Disposal of them without recording reasons was held to an unsatisfactory method as the reasoned decision, apart from informing the aggrieved party of the reasons which it may be able to demonstrate in higher forum as

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erroneous or irrelevant, also enables the higher forum to test the correctness of those reasons when the same are put in issue.34 The order of the High Court was set aside and remanded for fresh disposal on merits. The Labour Court directed reinstatement of an employee with continuity of service and 75% of back wages which was challenged by the employer in the High Court. It confirmed the award without continuity of service and back wages but without assigning any reasons and explanation for denying them. The Apex Court restored the matter to the High Court for fresh disposal by recoding reasons and explanation.35 Where the High Court disposed of the challenge to an order by a cryptic order and assigned no reasons, the Apex Court held that the said order was not sustainable.36 In Ashok Paper mills Kamgar Union v. Union of India, 37 the Director (Commercial,) dealing with the matter in a routine way and without applying his mind, made proposal for the imposition of penalty of dismissal of an employee which was approved by the Competent Authority, the Chairman-cum-Managing Director. The Apex Court held that the Competent Authority was required to pass speaking order by giving reasons for imposing the penalty. When wide power is given to any statutory authority including a delegatee, then it is obligatory on the part of such authority to clearly record its reasons in the order itself for exercising such a power so that application of its mind could be revealed. Even if the statute does not provide0 for recording of reasons, it is obligatory on the authority to do so.38 Reasons introduce clarity in an order. On plainest consideration of justice, in the instant case, the High Court ought to have set fourth its reasons for refusing to grant leave to file appeal against acquittal, however brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered its order not sustainable. The requirement of indicating reasons in such cases has been judicially recognized as imperative.39 In Nandlal Tejmal Kothari v. Inspecting Assistant Commissioner of Income-tax, 40 the Supreme Court observed that the recording of reasons which lead to the passing of the order is basically intended to serve a two-fold purpose; (1

(2

that the "party aggrieved" in the proceeding before the appropriate authority acquires knowledge of the reasons and in a proceeding before the High Court or the Supreme Court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant, and that the obligation to record reasons and convey the same to the party concerned operated as a deterrent against possible arbitrary action by the quasi-judicial or the executive authority invested with judicial powers.

A government servant was transferred from his place of posting to another place but he continued to occupy the govt. premises allotted to him at the former place and was ordered to pay penal rent for the period he continued to occupy the premises in violation of rules. He challenged the same contending that the government did not charge the penal rent from other officers who were similarly situated. The High Court quashed the order demanding the penal rent. The Supreme Court held that the High Court fell into patent error in doing so as there was no provision in the Act to grant any relaxation to any employee and, in case any of the provisions was relaxed in case of any employee, it shall be done by giving reasons and by a speaking order.41 In an Assembly election more than one candidate of the same recognised political party filed their nomination papers claiming themselves to be the main candidate as to which the Returning Officer raised suo motu objection. At the time of scrutiny, one of the candidates made an application in writing claiming himself to be the official candidate to which other candidates made no objection. The claimant requested the Returning Officer to give him twenty four hours' time to rebut his suo motu objection which the R.O. declined and rejected his nomination paper. The Supreme Court held that the power of the R.O. has to be exercised fairly and judiciously and not arbitrarily. In case of refusal to grant such time, he ought to have given cogent reasons.42 Similarly in case of rejection of a nomination paper, the Returning Officer is required to record reasons in writing by making a brief statement43 and the decision of rejection of request of re-counting should be in writing containing reasons.44 Where a Tribunal has power to grant ad interim ex parte injunction, it must be remembered that an ex parte order can also affect the reputation of the person against whom it is issued and it may be difficult to undo the damage caused by it. Hence, a tribunal while granting an ex parte order of stay must record reasons, may be brief one, cannot pass a stereo-typed order in terms of the prayer made.45 The Selection Committee recommended a panel of two names for consideration for appointment to the post of Member, Sales Tax Tribunal which was accepted by the government. The candidate who stood first in the panel was appointed on the post who relinquished the post. The government refused to appoint the other candidate of the panel and initiated a fresh process of selection

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for which the government placed no reasons. The Apex Court held that the government had no power to ignore the panel already approved and accepted by it and rejection of the name of the other candidate without any reason was held to be arbitrary and unconstitutional.46 Where the statute provided for recording of reasons, the letter and spirit of the law must be adhered to.47 Where a search for narcotic drug/psychotropic substance was conducted at night by an empowered officer under Section 41of the Narcotic Drugs & Psychotropic Substances Act, 1985, compliance of the provisions of the proviso to Section 42as to recording of reasons was not necessary.48

68 Breen v. A.E.U., (1971) 2 QB 175. 69 For further discussion on this principle, see. infra, Chapter XI; JAIN, Cases, Chapter X. 70 Govt. Branch Press v. D.B. Belliappa, AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364]: (1979) 1 SCC 477. See further Chapter XVIII; JAIN, Cases, Chapter XV . 71 infra, Vol. II, under Right to Information. 72 SUBBA RAO, J. in M.P. Industries v. U.O.I., AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466; JAIN, Cases, 731; Woolcombers of India v. Their Workmen, AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]: (1974) 3 SCC 318: 1978 (1) LLJ 138. 73 infra, under Judicial Control. 74 State of W.B. v. Krishna Shaw, AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC 466]. 75 R. v. Gaming Board for Great Britain, ex p. Benaim, (1970) 2 QBD 417. Also see, the discussion on this topic in Justice-All Souls, Administrative Justice, 24-74 (1988); WADE's criticism of Benaim on this point in 86 L.Q.R. 309 (1970); 33 MLR 154. 76 Committee on Administrative Tribunals and Enquiries, 24, 75 (1975). For excerpts from the report of the committee, see JAIN, Cases, 785. For more excerpts from this report, see, JAIN, Cases, Chapter XII, Sec. B . 77 For provisions of the Act, see, JAIN, Cases, 785. Also see, For more excerpts from this report, see, JAIN. Op. cit., Chapter XII, Sec. B. 78 Poyser and Mills's Arbitration, IN RE. (1963) 1 All ER 612, 616. Westminster City Council v. Great Portland Estates PIC, (1984) 3 All ER at 752. 79 Schwartz, Adm. Law- A Case book, 645-646 (1988). For text of the Act, see JAIN, Cases, Chapter XII. In Australia also, the duty to give reasons for administrative decisions has now been introduced through legislation: see, JUSTICE-ALL SOULS, Administrative Justice, at 58 (1988); (1970) 2 QBD 417. 80 On the common-law rule, reference may be made to an Australian case Public Service Board of N.S.W. v. Osmond, (1986) 53 ALR 559. 81 Some of these cases are: R. v. Civil Service Appeal Board, (1991) 4 All ER 310; R. v. Parole Board, (1992) QB 740; R. v. Secretary of State for the Home Dept., ex p. Doody, (1993) 3 All ER 92. 82 See, R. v. Higher Education Funding Council, (1994) 1 All ER 664, where the Court of Appeal ruled that the Council was not obligated to give reasons for lowering the grade of the Institute of Dental Surgery as it was no more than an informed academic judgment. 83 Sir Harry Woolf, Protection of the Public--A New Challenge, 16-17, 92-97 (1990). 84 P.P. CRAIG, The Common Law, Reasons & Adm. Justice, (1994) Cam LJ 282. 85 For discussion on mandamus, see, infra, under Judicial Control. 86 Collector of Monghyr v. Keshav Prashad, AIR 1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136]: 1963 (1) SCR 98; Sudhanshu Shekhar Roy v. RTA, AIR 1964 Cal 344 [LNIND 1963 CAL 163] [LNIND 1963 CAL 163] [LNIND 1963 CAL 163]; M. Damodaran v. Saraswati Amma, AIR 1972 Ker 202 [LNIND 1971 KER 258] [LNIND 1971 KER 258] [LNIND 1971 KER 258]. Also see, infra, Chapter XIX, under Discretionary Powers. 87 AIR 1981 SC 1915 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352]: (1981) 4 SCC 102: 1981 (2) LLJ 303 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352]. Also see, U.O.I. v. Mohanlal Capoor, AIR 1974 SC 87 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]: (1973) 2 SCC 836: 1973 (2) LLJ 504 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292].

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88 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; JAIN, Cases, Chapter VIII, 522, also, supra, Chapter IX, 253. 89 Sardari Lal v. U.O.I., AIR 1987 SC 2106 [LNIND 1987 SC 532] [LNIND 1987 SC 532] [LNIND 1987 SC 532]: (1987) 4 SCC 114: 1988 (1) LLJ 251 [LNIND 1987 SC 532] [LNIND 1987 SC 532] [LNIND 1987 SC 532]. See, U.O.I. v. Tulsiram Patel, AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398: 1985 (2) LLJ 206 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]. 90 See, infra, under Judicial Control. 91 Nagendra Nath Bora v. Commissioner, Hills Division, AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]: 1958 SCJ 798; Bhagat Raja v. U.O.I., AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], 1610: 1967 (3) SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]: JAIN, Cases, 737. 92 Jagannath v. U.O.I., AIR 1967 Del 121 [LNIND 1967 DEL 57] [LNIND 1967 DEL 57] [LNIND 1967 DEL 57]; Moti Miyan v. Commissioner, AIR 1960 MP 157 [LNIND 1959 MP 98] [LNIND 1959 MP 98] [LNIND 1959 MP 98]. 93 Bombay Oil Industries Pvt. Ltd. v. U.O.I., AIR 1984 SC 160 [LNIND 1983 SC 334] [LNIND 1983 SC 334] [LNIND 1983 SC 334]: (1984) 1 SCC 141; Anil Kumar v. Presiding Officer, AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]: (1985) 3 SCC 378: 1986 (1) LLJ 101 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]; Mahabir Prasad v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764, JAIN, Cases, 856; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744; Chowgule & Co. v. U.O.I., AIR 1971 SC 2021: (1971) 3 SCC 162; State of Punjab v. Bakhtawar Singh, AIR 1972 SC 2083: 1972 SLR 85; Narayan Das v. State of Madhya Pradesh, AIR 1972 SC 2086 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]: 1972 Crlj 1323: (1972) 3 SCC 676 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]. 94 Testeels Ltd. v. N.M. Desai AIR 1970 Guj 1 [LNIND 1968 GUJ 117] [LNIND 1968 GUJ 117] [LNIND 1968 GUJ 117]; M. Pattabiraman v. Accommodation Controller, AIR 1972 Mad 102 [LNIND 1971 MAD 159] [LNIND 1971 MAD 159] [LNIND 1971 MAD 159]; P.F. Co-op. Society v. Collector, Thanjavur, AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185]; Mayer Simon v. Advocate-General, AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]; Madhusudan Paswan v. State of Bihar, AIR 1989 Pat 106; Anchar Ali v. State of Assam, AIR 1989 Gall 12; Rameshwar Jute Mills Ltd. v. U.O.I., AIR 1986 Pat 288. 95 Sarju Pd. v. Chotanagpur R.T.A., AIR 1970 Pat 288. 96 Rajinder Pal v. State, AIR 1971 Punj 290. 97 B.K. Talwar v. State of Haryana, AIR 1971 Punj 48 98 Woolcombers of India v. Their Workmen, AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]: (1974) 3 SCC 318: 1974 (1) LLJ 138 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]. 99 Siemens Engg. Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. See also Kishan Lal v. U.O.I., (1998) 2 SCC 392 [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10], 393-49 (para 4): AIR 1998 SC 6862; JAIN, Cases. 749. For further discussion see, infra, this chapter. 1 Dinesh Roller Flour Mill v. U.O.I., AIR 1983 Pat 293. 2 Cycle Equipments (P.) Ltd. v. Delhi Municipality, AIR 1983 Del 94 [LNIND 1982 DEL 58] [LNIND 1982 DEL 58] [LNIND 1982 DEL 58]; JAIN, Cases, 765. 3 AIR 1988 Del 288. 4 Also see, Apeejay (P.) Ltd. v. U.O.I., AIR 1978 Cal 577 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148]. 5 AIR 1987 SC 9 [LNIND 1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420]: (1986) 4 SCC 678; JAIN, Cases, 566. 6 R.P. Bhatt v. U.O.I., AIR 1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518]: (1986) 12 SCC 651; Shanti Prasad Agarwalla v. U.O.I., AIR 1991 SC 814 [LNIND 1962 SC 6] [LNIND 1962 SC 6] [LNIND 1962 SC 6]: 1991 Supp (2) SCC 296. On this point also see, infra, Chapter XIX. 7 AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]: 1986 (1) LLJ 101: (1985) 3 SCC 378 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]. 8 Anil Kumar v. Presiding officer, AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]. at 1123: (1985) 3 SCC 378 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]. 9 The Court referred to the following cases: M.P. Industries v. U.O.I., AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466, JAIN, Cases, 731; Mahabir Prasad v. State of U.P., AIR 1970 SC 1302 [LNIND

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1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; K.C. Joshi v. U.O.I., AIR 1985 SC 1046 [LNIND 1985 SC 143] [LNIND 1985 SC 143] [LNIND 1985 SC 143]: (1985) 3 SCC 133: 1985 (2) LLJ 416 [LNIND 1985 SC 143] [LNIND 1985 SC 143] [LNIND 1985 SC 143]. 10 Oramco Chemicals Pvt. Ltd. v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., AIR 1987 SC 1564: (1987) 2 SCC 620; JAIN, Cases, 751. For a comment on Oramco, see, S.N. SINGH, Hearing to an Objector to control Monopolies, 29 JILI 562 (1987). Also see, Bombay Oil Industries Pvt. Ltd. v. U.O.I., AIR 1984 SC 160 [LNIND 1983 SC 334] [LNIND 1983 SC 334] [LNIND 1983 SC 334]: (1984) 1 SCC 141; S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594. 11 Mahindra & Mahindra Ltd. v. U.O.I., AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]: (1979) 2 SCC 529. For functions and structure of the Commission see, infra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. 11. 12 See, infra, Chapter XI, note 53. Also see, Bhagwati Prasad Sharma v. Council of the Institute of Chartered Accountants, AIR 1991 MP 378. The High Court has ruled in this case that even when the Council holds a member not guilty, it must give reasons because the High Court has revisional powers and may confirm, modify or set aside the order. In this case, the order of the Council was set aside as "the finding recorded by the Council is slip-shod." 13 Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain, (2005) 10 SCC 84 [LNIND 2004 SC 1468] [LNIND 2004 SC 1468] [LNIND 2004 SC 1468], 95, 96 (paras 15 and 18): AIR 2005 SC 584 [LNIND 2004 SC 1266] [LNIND 2004 SC 1266] [LNIND 2004 SC 1266]. See also Shyam Lal v. Deputy Director of Consolidation, Ghazipur, 2001 (8) Supreme 492: 2001 (4) SLT 383 (1). 14 Bank of India v. Degala Suryanarayana, AIR 1999 SC 2407 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580]: (1999) 5 SCC 762. 15 AIR 1969 SC 414 [LNIND 1968 SC 286] [LNIND 1968 SC 286] [LNIND 1968 SC 286]: 1969 Crlj 663. 16 For discussion on this topic see, this chapter. 17 See, Siemens Engg. Mfg. Co v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981, Anil Kumar v. Presiding Officer, AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]: 1986 (1) LLJ 101: (1985) 3 SCC 378 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]; Star Iron Works v. Eastern Rly., AIR 1992 Cal 238 [LNIND 1992 CAL 7] [LNIND 1992 CAL 7] [LNIND 1992 CAL 7]. 18 AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: 1990 Crlj 2148: (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]; JAIN, Cases, Chapter IX, Sec. G, 776. 19 JAIN, Cases, 780. 20 (1971) 1 All ER 1148: (1971) 2 QB 175: (1971) 2 WLR 742 (CA). 21 1974 ICR 120 (NIRC). 22 State of Punjab v. Bhag Singh, (2004) 1 SCC 547 [LNIND 2003 SC 1096] [LNIND 2003 SC 1096] [LNIND 2003 SC 1096], 550 (para 6): AIR 2004 SC 1203 [LNIND 2003 SC 1096] [LNIND 2003 SC 1096] [LNIND 2003 SC 1096]. See also MMRDA Officers Association Kedarnath Rao Ghorpade v. Mumbai Metropolitan Regional Development Authority, (2005) 2 SCC 235 [LNIND 2004 SC 1531] [LNIND 2004 SC 1531] [LNIND 2004 SC 1531]: JT 2006 (6) SC 194. 23 Vasant D. Bhavasar v. Bar Council of India, (1999) 1 SCC 45, 47 (Para 4). 24 Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668 [LNIND 2000 SC 2115] [LNIND 2000 SC 2115] [LNIND 2000 SC 2115], 673 (para 11): AIR 2000 SC 3138 [LNIND 2000 SC 2115] [LNIND 2000 SC 2115] [LNIND 2000 SC 2115]. 25 Union of India v. Jayakumar Parida, (1996) 1 SCC 441 [LNIND 1995 SC 1190] [LNIND 1995 SC 1190] [LNIND 1995 SC 1190] 26 Haryana Warehousing Corporation v. Ram Avtar, (1996) 2 SCC 98 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118], 101-102 (paras 10 and 11): AIR 1996 SC 1081 [LNIND 1996 SC 118] [LNIND 1996 SC 118] [LNIND 1996 SC 118]. 27 U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 [LNIND 1996 SC 232] [LNIND 1996 SC 232] [LNIND 1996 SC 232], 364 (Para 3): AIR 1996 SC 1661 [LNIND 1996 SC 232] [LNIND 1996 SC 232] [LNIND 1996 SC 232]. 28 AIR 2005 SC 2853 [LNIND 2005 SC 450] [LNIND 2005 SC 450] [LNIND 2005 SC 450]: (2005) 10 SCC 15. 29 (1996) 11 SCC 127 [LNIND 1996 SC 1570] [LNIND 1996 SC 1570] [LNIND 1996 SC 1570], 131 (para 5): AIR 1997 SC 31 [LNIND 1996 SC 1570] [LNIND 1996 SC 1570] [LNIND 1996 SC 1570], following Babubhai & Co. v. State of Gujarat, (1985) 2 SCC 732 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]: AIR 1985 SC 613 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]and overruling Saiyed Mohd. Abdullamiya Uraizee v. Ahmedabad Municipal Corporation, (1977) 18 Guj LR 549.

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30 Fag Precision Bearings v. Sales Tax Officer (I), (1997) 3 SCC 486 [LNIND 1996 SC 2082] [LNIND 1996 SC 2082] [LNIND 1996 SC 2082], 490 (para 10), applied in Bharat Heavy Electricals Ltd. v. Asstt. Commissioner of Commercial Taxes, (1998) 5 SCC 175, 176 (para 1): AIR 1999 SC 1512. 31 T.R. Thandur v. Union of India, (1996) 3 SCC 690 [LNIND 1996 SC 749] [LNIND 1996 SC 749] [LNIND 1996 SC 749], 707 (para 13): AIR 1996 SC 1643 [LNIND 1996 SC 749] [LNIND 1996 SC 749] [LNIND 1996 SC 749]. 32 Ghaziabad Development Authority v. Balbir Singh, (2005) 9 SCC 573 [LNIND 2004 SC 1206] [LNIND 2004 SC 1206] [LNIND 2004 SC 1206], 577 (para 6). 33 Naga People's Movement of Human Rights v. Union of India, (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 146 (para 52): AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. See also Kishan Lal v. U.O.I., (1998 2 SCC 392 [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10], 393 (para 4): AIR 1998 SC 862 [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10] [LNINDORD 1998 SC 10]. 34 Subhash Chandra Choubey v. State of Bihar, (1998) 8 SCC 714 (paras 4 and 5). See also Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713 [LNIND 2006 SC 255] [LNIND 2006 SC 255] [LNIND 2006 SC 255]; State of Maharashtra v. Narayan Ramrao Chavan, (2000) 9 SCC 529: JT 2000 (1) SC 542; Fauja Singh v. Jaspal Kaur, (1996) 4 SCC 461: 1996 (4) Scale 326; Cyril Larrado v. Juliana Maria Larrsdo, (2004) 7 SCC 431 [LNIND 2004 SC 786] [LNIND 2004 SC 786] [LNIND 2004 SC 786], 435 (para 10). 35 A. Balaiah v. Depot Manager, A.P. State Road Transport Corporation, JT 2000 (10) SC 487: 2000 (2) LLJ 487. 36 Shyam Lal v. Deputy Director of Consolidation, Ghazipur, 2001 (8) Supreme 492: 2001 (4) SLT 383 (1). See also U.P. Public Service Commission v. Sanjay Kumar, JT 2000 (9) SC 547: 2000 (5) SLR 104. 37 (2000) 10 SCC 28: 2000 (2) LLJ 659 [LNIND 1999 SC 461] [LNIND 1999 SC 461] [LNIND 1999 SC 461]. 38 Consumer Action Group v. State of T.N., AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]: (2000) 7 SCC 425. 39 State of Punjab v. Bhag Singh, (2004) 1 SCC 547 [LNIND 2003 SC 1096] [LNIND 2003 SC 1096] [LNIND 2003 SC 1096], 550 (para 5): AIR 2004 SC 1203 [LNIND 2003 SC 1096] [LNIND 2003 SC 1096] [LNIND 2003 SC 1096], relying on State of U.P. v. Battan, (2001) 10 SCC 607: 2003 SCC (Cri) 639: AIR 2003 SC 724 [LNIND 2002 SC 676] [LNIND 2002 SC 676] [LNIND 2002 SC 676]; State of Maharashtra v. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129: 1981 SCC (Cri) 807: AIR 1982 SC 1215and Jawahar Lal Singh v. Naresh Singh, (1987) 2 SCC 222 [LNIND 1987 SC 155] [LNIND 1987 SC 155] [LNIND 1987 SC 155]: 1987 SCC (Cri) 347. See also State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568 [LNIND 2004 SC 429] [LNIND 2004 SC 429] [LNIND 2004 SC 429], 571-572 (paras 6 to 8): AIR 2004 SC 1794 [LNIND 2004 SC 429] [LNIND 2004 SC 429] [LNIND 2004 SC 429]. 40 JT 1997 (4) SC 621 [LNINDORD 1997 SC 87] [LNINDORD 1997 SC 87] [LNINDORD 1997 SC 87]: 1997 (3) Scale 592. 41 State of W.B. v. Sultan Singh, (1998) 8 SCC 477, 479 (para 5). 42 Rakesh Kumar v. Sunil Kumar, (1999) 2 SCC 489 [LNIND 1999 SC 118] [LNIND 1999 SC 118] [LNIND 1999 SC 118], 500 (para 21): AIR 1999 SC 935 [LNIND 1999 SC 118] [LNIND 1999 SC 118] [LNIND 1999 SC 118]. 43 Jeet Mohinder Singh v. Harminder Singh Jassi, 1999 (6) Scale 703 [LNIND 1999 SC 959] [LNIND 1999 SC 959] [LNIND 1999 SC 959]: JT 1999 (8) SC 432 [LNIND 1999 SC 959] [LNIND 1999 SC 959] [LNIND 1999 SC 959]: AIR 2000 SC 256 [LNIND 1999 SC 959] [LNIND 1999 SC 959] [LNIND 1999 SC 959]. 44 Mahand Ram Prakash Dass v. Ramesh Chandra, 1999 (6) Scale 635 [LNIND 1999 SC 1521] [LNIND 1999 SC 1521] [LNIND 1999 SC 1521]: JT 1999 (8) SC 421 [LNIND 1999 SC 1521] [LNIND 1999 SC 1521] [LNIND 1999 SC 1521]: AIR 2000 SC 420 [LNIND 1999 SC 1182] [LNIND 1999 SC 1182] [LNIND 1999 SC 1182]. 45 Industrial Credit and Investment Corporation of India Ltd. v. Grapeo Industries Ltd., (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND 1999 SC 410]: AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410]. 46 A.P. Aggarwal v. Govt. of NCT of Delhi, (2000) 1 SCC 600 [LNIND 1999 SC 1020] [LNIND 1999 SC 1020] [LNIND 1999 SC 1020], 607 (para 17): AIR 2000 SC 205 [LNIND 1999 SC 1020] [LNIND 1999 SC 1020] [LNIND 1999 SC 1020]. 47 Tata Iron & Steel Co. Ltd. v. Union of India, AIR 1996 SC 2462: (1996) 9 SCC 709. 48 Mohd. Hussain Farah v. Union of India, AIR 1999 SC 3343 [LNIND 1999 SC 1518] [LNIND 1999 SC 1518] [LNIND 1999 SC 1518]: JT 1999 (6) SC 276.

(a) Validity of a non-speaking Order What should the Court do when it is presented with a non-speaking order. Ordinarily the Court should

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declare such an order null and void on the ground that it suffers from an error of law apparent on the face of the record and this has actually been done in quite a few cases.49 For example, in Madhusudan,50 a non-speaking order cancelling the examination of a candidate was quashed. But the Courts do not always follow this logical course strictly but tend to dilute the salutary principle that reasons must be given by an adjudicatory body for its decision. The Courts take the position that it is within their discretion to give relief in a case.51 A restrictive and deviant trend manifests itself in cases dealing with discipline among civil servants. The judges do make compromises, and avoid at times declaring non-speaking orders invalid by resorting to some fiction. For example, even when reasons are not stated, the Court may seek to gather the same from the impugned adjudicative order by considering the entire course of events.52 In Tripathi,53 the Supreme Court sustained an order of dismissal of an employee by a statutory corporation even though the reasons for the same were not expressly stated. The Court said that the reasons were implicit in the order. "These appear from a fair reading of the order impugned in this case." In Ranganath v. Daulatrao,54 the Court refused to intervene where the authority passed an order adversely affecting the individual on the ground that the matter did not involve adjudication of facts but rested on the point of law about which there was no error according to the Court. In Woolcombers,55 although the Supreme Court admitted that the absence of reasons in support of conclusions was indeed a serious flaw in the award, the award of the industrial tribunal was not set aside on that score, for "there is evidence on the record in support of the Tribunal's conclusion." Accordingly, the Court went through the entire evidence on record. Such an approach does not seem to be correct as it dilutes, to a great extent, the salutary principle that reasons must be given by adjudicatory bodies for their decisions.56 Rule 155-A(6)of the T.N. Motor Vehicles Rules envisages that the authority is required to draw up proceedings to consider the merits and demerits of the applications for grant of permit and to give reasons but the same was not complied with by the authority in passing orders granting permit to one of the applicants. Hence, it was held to be invalid by the High Court and was not interfered with by the Apex Court.57

49 Mahindra & Mahindra Ltd., v. U.O.I., AIR 1979 SC 698: (1979) 2 SCC 529; Gopal Singh v. State of Bihar, AIR 1984 Pat 294. 50 Madhusudan Paswan v. State, AIR 1989 Pat 106. 51 On this point see Glynn v. Keele University, [1971] 2 All ER 89; JAIN, Cases, 620. Also see, infra, Chapter XII and under Judicial Control on this point. 52 Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND 1987 SC 159]: (1987) 2 SCC 295. 53 AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], 274, 285: 1984 (1) LLJ 2 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]; JAIN, Cases, 690. 54 AIR 1975 SC 2146 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440]: (1976) 1 SCC 686. 55 See, Woolcombers of India v. Their Workmen, AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]: (1974) 3 SCC 318. 56 On this point, see also, infra, Chapter XII . 57 Thirumalai Transport Service v. P. Samiappa Gounder, (1997) 3 SCC 510 [LNIND 1997 SC 112] [LNIND 1997 SC 112] [LNIND 1997 SC 112] (paras 3 and 4): AIR 1999 SC 1029.

(b) Communication of Reasons Ordinarily, the reasons for the order ought to be communicated to the affected person. It was so held by the Supreme Court in Ajantha Industries v. Central Board of Direct Taxes.58 The Court held there that an order is bad on account of non-communication of reasons and it would not be saved by showing that the reasons existed in the file. Whenever an authority is required to record reasons for taking an action, the authority has to communicate the same to the concerned party. Merely recording of the reasons in the file is not enough;

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communication of the reasons to the affected party is essential. But then there have been cases where orders have not been quashed on the ground of non-communication of reasons but upheld on the ground that the grounds existed in the file. The Government passed an order under S. 49(3)of the Trade and Merchandise Marks Act, 1958, without giving any reasons. The petitioner filed a writ petition challenging the order on the ground of lack of reasons. In the counter affidavit, the reasons which existed in the file were disclosed. On this basis, the Delhi High Court rejected the petition and refused to quash the impugned order. Although the Court reiterated the principle that "reasons must be given for quasi-judicial orders and, in the absence of such reasons, the orders would be quashed by the Courts,"59 in the instant case, the High Court refused to quash the order on this ground saying that the reasons existed in the file.60 When an appellate/revisional authority affirms the views of the lower authority, in some cases, the Courts have considered it enough that the reasons were given in the records even though the final order did not contain them.61 These cases do not seem to represent good law and they go counter to the view expressed by the Supreme Court. These rulings lead to the position that a person must file a writ petition to get the reasons for the order made by the concerned quasi-judicial body. The rule requiring reasons to be given for an adjudicatory order is really for the benefit of the affected person. Not communicating the reasons to him, but to keep them locked in the file, does not really help him. He cannot decide whether he should challenge the order or not, or if to challenge, on what grounds. These judicial pronouncements also go counter to Ajantha, mentioned above. It would be less confusing if the Supreme Court were to lay down in an unequivocal manner that giving of reasons by an adjudicatory body, and communication of the same to the concerned person, is the norm, and that a non-speaking order is invalid irrespective of the fact that the reasons for the order exist in the file. Such a rule is very necessary to tone up the administrative process. (c) Exceptions There may however be some situations when an exception may have to be made to the general rule of reasoned decisions. As the Supreme Court has explained in S.N. Mukherjee,62 the requirement to give reasons may be excluded directly by law or by necessary implication arising from the nature of the subject-matter, the scheme and the provisions of the enactment. State of Maharashtra v. Salem Hasan Khan 63 furnishes an example of one such situation. While hearing an appeal under S. Section 60of the Bombay Police Act from an externment order passed under S. 56, the State Government need not give reasons for rejecting the appeal. The justification for this judicial approach is that if the authorities were to discuss the evidence in such a case, it would then be easy to fix the identity of the witnesses who can then be harassed by the externee or his friends. The Supreme Court has ruled that at the. stage of recording of findings and sentence, the Court-martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the Court-martial makes such a recommendation.64 Further an order of the Chief of the Army under S. Section 164 of the Army Act confirming findings and sentence of a Court-martial, and the order of the Central Government dismissing the appeal of the delinquent under S. Section 165 of the Army Act, could not be held to be illegal for not giving reasons in support of the orders. These authorities were not required to give reasons in support of their orders of confirmation and post-confirmation of the sentence awarded by the Court-martial.65 A very debatable decision in this area is R.S. Dass v. U.O.I. 66 In this case, the validity of selection lists for promotion of officers from State services to the Indian Administrative Service was challenged. The ground of challenge was that the selection committee had not given any reasons for including a junior and superseding the appellant who was a senior employee. Under the relevant rules, the committee was required to classify officers into different categories and the requirement of giving reasons was deleted by amending the rules. The Supreme Court held that in view of this legal change, natural justice imposed no obligation on the committee to record reasons for its decision to select employees for promotion. The Court observed: Principles of natural justice do not require an administrative authority or a selection committee or an examiner to record reasons for the selection or non-selection of a person. In the absence of a statutory prevision to all (sic) administrative authority is under no legal obligation to record reasons in support of its decision. There is no scope for applying

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principles of natural justice in matters relating to selection of suitable members of State Service for promotion to a higher service.67

The Court held that merit had been given the primary consideration for selection and seniority was assigned only a subsidiary role. No member had a vested right to be promoted. The non-inclusion of a member did not take away his right and there was no necessity to afford him an opportunity to make representation against the proposed supersession. The Court seems to have been swayed by the change in law and it does not appear to have considered the requirement of giving reasons independently of the rules. There is no doubt that supersession is an act which demoralises a senior officer. If the post was exclusively to be given by selection, there could be no requirement of giving reasons but that was not the position in the case before the Court. The Dass ruling has been reiterated in UPSC v. Hiranyalal Dev 68 where the Court has held that the selection committee is not required to give reasons for not including the name of an officer in the select list while considering the candidates for promotion to the Indian Police Service. The Court held that the Police Regulations were in pari materia with the regulations involved in Dass. The difficulty with these cases is that they are based purely on statutory interpretation and the Court failed to supplement the rules with principles of natural justice. Another explanation for the Court's view in these cases seems to be that it regards selection for appointment or promotion as more of an administrative, rather than a quasi--judicial function.69 An order confirming preventive detention for the maximum period permissible under the law need not be a reasoned one.70 It may be pointed out however that in Kraipak the Court did invoke the rule against bias, a component of natural justice, in a case of making selection for appointments, and Kraipak is regarded as a landmark case in India.71 In U.O.I. v. E.G. Nambudri, 72 the Court has ruled that an authority need not give reasons for rejecting a representation made by a government servant against adverse remarks made against him. The reason given for such a view is that there is no statutory or administrative provision requiring the competent authority to record or communicate reasons. Following R.S. Dass, the Supreme Court has ruled that, in the absence of any statutory obligation to do so, a selection committee need not give reasons for selecting candidates for posts as its function is 'administrative', and not 'adjudicatory' or 'quasi-judicial' although the committee interviews the candidates, assesses their relative merits and then recommends candidates for appointment.73 It was held by the Apex Court that in the powers and jurisdiction of the Delhi Special Police Establishment being extended to a State in connection with a particular case by the Central Govt., it was not necessary to record reasons for the same.74 In Union of India v. Praveen Gupta, 75 the Supreme Court held that the decision on urgency is an administrative order and it is a matter of subjective satisfaction of the appropriate govt. on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5-Ain exercise of power under Section 17(4)of the Land Acquisition Act, 1894.

58 AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]: (1976) 1 SCC 1001. Also see, Apeejay (P) Ltd. v. U.O.I., AIR 1978 Cal 577 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148]. 59 Harinagar Sugar Mills, AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206]: (1961) 31 Comp Cas 387; Govind Rao, AIR 1965 SC 1222 [LNIND 1964 SC 259] [LNIND 1964 SC 259] [LNIND 1964 SC 259]: 1965 (1) SCR 678. In Maharashtra State Road Transport Corp. v. Balwant Regular Motor Service, AIR 1969 SC 329 [LNIND 1968 SC 234] [LNIND 1968 SC 234] [LNIND 1968 SC 234]: 1969 (1) SCR 808, the reasons were recorded subsequent to the making of the order but they had been communicated to the petitioner. It was held that there was no flaw. 60 J.M.A. Industries v. U.O.I., AIR 1980 Del 200 [LNIND 1980 DEL 24] [LNIND 1980 DEL 24] [LNIND 1980 DEL 24]. 61 N.R. Chinnasamy Chettiar v. State of Tamil Nadu, AIR 1986 Mad 168 [LNIND 1985 MAD 64] [LNIND 1985 MAD 64] [LNIND 1985 MAD 64]; Tek Bahadur Singh v. State of Punjab, AIR 1986 P&H 127. 62 AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148. 63 AIR 1989 SC 1304 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989 SC 145]: 1989 Crlj 1155: (1989) 2 SCC 316 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989 SC 145]; JAIN, Cases, 771. 64 S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148: 1990 SCC (Cri) 669 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]; U.O.I. v. J.S. Brar, AIR 1993 SC 773, 776: (1993) 1 SCC 176.

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65 Som Datt Datta U.O.I., AIR 1969 SC 414 [LNIND 1968 SC 286] [LNIND 1968 SC 286] [LNIND 1968 SC 286]: 1969 Crlj 663: (1969) 2 SCR 177 [LNIND 1968 SC 286] [LNIND 1968 SC 286] [LNIND 1968 SC 286]; S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148: 1990 SCC (Cri) 669 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]. 66 AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694], 600, 603: 1986 Supp SCC 617. 67 R.C. Dass v. U.O.I., AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]at 603-4: 1986 Supp SCC 617. 68 AIR 1988 SC 1069 [LNIND 1988 SC 653] [LNIND 1988 SC 653] [LNIND 1988 SC 653]: (1988) 2 SCC 242. 69 See, infra, Chapter XV on this point. 70 Vijay Kumar v. U.O.I., AIR 1988 SC 934 [LNIND 1988 SC 141] [LNIND 1988 SC 141] [LNIND 1988 SC 141]: (1988) 2 SCC 57: 1988 Crlj 951. 71 See, A.K. Kraipak v. U.O.I., AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. 72 AIR 1991 SC 1216 [LNIND 1991 SC 225] [LNIND 1991 SC 225] [LNIND 1991 SC 225]: (1991) 3 SCC 38: 1991 (2) LLJ 594 [LNIND 1991 SC 225] [LNIND 1991 SC 225] [LNIND 1991 SC 225]; JAIN, Cases, 772. 73 National Institute of Mental Health & Neuro Sciences v. Dr. K Kalyana Raman, AIR 1992 SC 1806 [LNIND 1991 SC 636] [LNIND 1991 SC 636] [LNIND 1991 SC 636]: 1992 (2) LLJ 616: 1992 Supp (2) SCC 481. Also see, infra, Chapter XV. 74 Central Bureau of Investigation v. Rajesh Gandhi, (1996) 11 SCC 253 [LNIND 1996 SC 1628] [LNIND 1996 SC 1628] [LNIND 1996 SC 1628], 256-257 (paras 8 and 9): AIR 1997 SC 93 [LNIND 1996 SC 1628] [LNIND 1996 SC 1628] [LNIND 1996 SC 1628]. See also Kabini Minerals Pvt. Ltd. v. State of Orissa, JT 2005 (10) SC 40 [LNIND 2005 SC 914] [LNIND 2005 SC 914] [LNIND 2005 SC 914]: 2005 (9) Scale 403. 75 (1997) 9 SCC 78 [LNIND 1996 SC 1616] [LNIND 1996 SC 1616] [LNIND 1996 SC 1616], 82 (para 9): AIR 1997 SC 170 [LNIND 1996 SC 1616] [LNIND 1996 SC 1616] [LNIND 1996 SC 1616].

(d) Adequacy of Reasons As the Supreme Court has emphasized in Siemens,76 the rule requiring reasons should be observed in its "proper spirit" and a "mere pretence of compliance with it would not satisfy the requirements of law." In S.N. Mukherjee v. U.O.I., 77 the Supreme Court has stated: "... It is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy."

The reasons to be given for a decision need not be as elaborate as in a Court decision, but have to be adequate, proper and intelligible, sufficiently clear and explicit. The reasons should reasonably deal with the substantial points raised in the matter. The reasons should enable the parties and the Courts to see what matters were taken into consideration, what view the deciding authority took on the points of fact and law which arose in the case. The extent and nature of reasons depend on the specific facts and circumstances of each case. Mechanical and stereotype reasons cannot be regarded as adequate.78 The reasons must disclose how the mind of the deciding authority was applied to the disputed subject-matter. The reasons must reveal a rational nexus between the facts considered and the conclusions reached. It has been held that a speaking order is one which speaks of the mind of the authority which passed the order. A reason such as the "entire examination of the year 1982 is cancelled" cannot be regarded as adequate. This statement does not say anything as to why the examination has been cancelled; it only lays down the punishment without stating the causes therefor.79 A mere repetition of the statutory language in the order does not make the order a reasoned one. Thus, where an application by a company for registration of a trade mark was refused by the government on the ground of "interests of general public and the development of indigenous industry in India", it was held that this did not amount to giving of reasons as the order merely recited the words of the relevant section of the statute. The government should state why it was against public interest and how it

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would hinder and not help the development of the industry. The government should have given "facts, circumstances and reasons in their order so that the petitioners are able to know the official viewpoint and counter them by placing before the government the industries' case".80 Similarly, reasons were not held sufficient where the authority while cancelling the factory licence of the petitioners merely stated that his reply was found to be unsatisfactory. It was not enough that the grounds for cancellation were stated in the show-cause notice.81 The approach of the same Court in Satish Chandra v. U.O.I. 82 is not correct. Here the Delhi Municipal Corporation was superseded by the Central Government. The government issued a show-cause notice to the corporation mentioning the details of the grounds for the notice. The order of supersession reproduced in extenso the show-cause notice without referring to what the explanation of the corporation was and why it was considered to be unsatisfactory. In a two to one decision, the requirement of reasons was held to be satisfied. The opinion of the dissenting judge is to be commended on the point. He argued that no reference was made in the order of what the explanation of the corporation was and why the explanation was not considered to be satisfactory. Oramco,83 mentioned above, may also be regarded as a case of inadequate reasons. 'In another case under the MR TP Act',84 a government order was challenged on the ground of inadequacy of reasons. Rejecting the challenge, the Court maintained that the order in question was a 'detailed and elaborate one'. "The order bears testimony to the fact that the pros and cons have been fully considered and a decision taken". At times, the Courts show some flexibility in favour of an administrative order, depending upon the facts, even though the reasons may be scrappy. The Court has to be satisfied by looking into the records or otherwise that the authority did apply its mind to all the relevant material. Thus, in High School & i.e. Board v. Bagleshwar, 85 it was held that the fact that the enquiry committee did not write an elaborate report did not mean that it did not consider all the relevant material before it came to the conclusion that the student had used unfair means. A similar approach is depicted by some other cases as well involving the question of use of unfair means at the examination by a student.86 In one High Court case, where the petitioner contended that the order of the authority did not contain reasons for rejecting some of his contentions, the Court called for the file and found that his explanation had been fully considered.87 In Suresh v. State, 88 the State Government superseded a municipality after rejecting its explanation to the chargesheet served on it. Under the relevant law, the reasons for making the supersession order had to be given. This requirement, the Court explained, must be understood to mean that the reasons for rejecting the explanation of the corporation ought to be stated. This requirement is not satisfied simply by narrating the charges and stating the government's opinion that the corporation's explanation failed to meet the charges. It is necessary to state the reasons for that opinion. The corporation was entitled to know for what reasons its representation countering the charges levelled against it was rejected by the government. The reasons must, therefore, deal with points of fact and law raised in the representation. This course would also ensure that the government really applied its mind to the corporation's representation. The question of sufficiency of reasons in a particular case remains uncertain. The nature and elaboration of reasons depends upon the facts of each case. The Supreme Court has stated that it is not necessary for the authority to "write out a judgment as Courts of law are wont to do."89 However, at least "outline of process" of reasoning must be given.90 It seems that it will satisfy the requirement of 'giving reasons' if relevant reasons have been given for the order, though the authority has not set out all the reasons or some of the reasons which were argued before the Court had not been expressly considered by the authority.91 Applications were invited for the selection of Ticket Collectors in the Railways and written examination was held for the purpose and select list was prepared. Subsequently on allegation of malpractice in writing the examinations as the papers were leaked out earlier to the date of examination, the matter was referred for CBI inquiry. The preliminary inquiry of CBI indicated that the alleged malpractices were committed; hence the select list was cancelled. One of the contentions was that the cancellation order contained no reasons. The Apex Court held that in a case where the authorities have taken the decision on the basis of report submitted by the investigating agency, containing proof in support of the allegations, it could not be said that the order of cancellation did not contain reasons.92 The absence of reasons in the order rejecting the representations of the employee or the original resolution granting selection grade/supertime scale, in the nature of proceedings themselves, cannot be said to be an infirmity. The noting in the files dealing with those aspects would be sufficient record and the proceedings in the form of resolutions cannot be expected to be in the format of a judicial order dealing with each and every claim.93

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76 Siemens Engg. Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. 77 AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148. 78 U.O.I. v. M.L.Kapoor, AIR 1974 SC 87 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]: 1973 (2) LLJ 504: (1973) 2 SCC 386. 79 Pradeep Singh v. Lucknow University, AIR 1983 All 427. 80 Imperial Chemical Industries Ltd. v. Registrar of Trade Marks, AIR 1981 Del 190 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]. 81 Cycle Equipment (P) Ltd. v. Delhi Municipality, AIR 1983 Del 94 [LNIND 1982 DEL 58] [LNIND 1982 DEL 58] [LNIND 1982 DEL 58]. 82 AIR 1983 Del 1. 83 Ormaco Chemicals Pvt. Ltd. v. Gwalior Rayon Silk (wvg.) Co. Ltd., AIR 1987 SC 1564: (1987) 2 SCC 620. 84 Ossein & Gelatine Mfgrs. Ass. of India v. Modi Alkalies & Chemicals Ltd., AIR 1990 SC 1744 [LNIND 1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393]: (1989) 4 SCC 264. 85 AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277]: 1963 (3) SCR 767. 86 Kurukshetra University v. Vinod Kumar, AIR 1977 P&H 21; G.B.S. Omkar v. Shri Venkateswara University, AIR 1981 AP 163 [LNIND 1981 AP 27] [LNIND 1981 AP 27] [LNIND 1981 AP 27]. 87 Sohan Lal v. State of Punjab, AIR 1983 P&H 63. 88 AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND 1969 MP 9] [LNIND 1969 MP 9]. 89 Bhagat Raja v. U.O.I., AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]: 1967 (3) SCR 302, JAIN, Cases, 737; State of Madras v. Srinivasan, AIR 1966 SC 1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72]: (1967) 15 FLR 104; Sri Rama Vilas Service v. Chandrasekaran, AIR 1965 SC 107 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC 289]: 1964 (5) SCR 869. Also see, Siemens, Engg. Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. 90 Sri Rama Vilas Service v. Chandrasekaran, AIR 1965 SC 107 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC 289]: 1964 (5) SCR 869 91 The Bhagat Raja v. U.O.I., AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]: 1967 (3) SCR 302. 92 Hanuman Prasad v. Union of India, (1996) 10 SCC 742 [LNINDORD 1996 SC 138] [LNINDORD 1996 SC 138] [LNINDORD 1996 SC 138], 744 (para 3), relying on Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716 [LNIND 1991 SC 712] [LNIND 1991 SC 712] [LNIND 1991 SC 712]: (1991) 1 SCR 772. 93 Syed T.A. Naqshbandi v. State of J&K, (2003) 9 SCC 592 [LNIND 2003 SC 524] [LNIND 2003 SC 524] [LNIND 2003 SC 524], 603-05 (para 11).

(e) Record of Hearing In the same category will fall the efforts made by the Courts to improve the preparation of the record of hearing.94 The matter is of importance because unless the adjudicatory body preserves a full record of the proceedings before it, a right of appeal either to a higher tribunal or to the Court may not be fully effective. The Supreme Court emphasised this aspect in Nibaran Chandra v. Mahendra Nath 95 in the context of enquiry proceedings by the assistant settlement officer under the West Bengal Estates Acquisition Act, 1953. Criticising the non-keeping of any record of any evidence by the officer, the Court stated that no one was in a position to ascertain with exactness what each witness deposed; the appeal to a higher authority would be an empty formality in such a case, unless the materials on which the order was based were placed before the appellate authority. It is thus apparent that a record of the evidence would be as necessary as a reasoned order. The Court, however, said that it "should not be understood to mean that he is bound to follow the procedure prescribed for civil Courts for the recording of evidence. Only he should maintain some

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record from which the Appellate authority would be able to gather the materials which the officer had before him in arriving at the decision which is the subject of the appeal."96 Similarly, in East Jamuria Co. v. Collector of Customs, 97 the Calcutta High Court emphasised the need for administrative adjudicatory authorities to "record the evidence produced through witnesses by parties in examination as also in cross-examination". However, the Court did not quash the order though the evidence had not been recorded in the case as it found that no miscarriage of justice occurred for failure to do so. (f) Reasons by appellate authorities Adjudicatory bodies are usually arranged in a hierarchical structural order.1 The question has been considered by the Supreme Court in several cases whether each of such bodies must give reasons for its decision when a case moves from the lower to the higher body. Here the Courts have considered several alternative situations. The lower authority itself may not give reasons, or may give nebulous or scrappy reasons. If the appellate authority merely affirms such an order without giving any reasons, the order of the appellate authority will be bad. In Bhagat Raja v. U.O.I., 2 the Central Government acting under R. 55 of the Mineral Concession Rules affirmed the order of the State Government which had rejected the appellant's application for granting a mining lease. No reasons were given by any of the governments. The Supreme Court found that the Central "Ministry have a special form which is to be used whenever a review application is to be rejected." Quashing the order, the Court pointed out that "where the lower authority itself fails to give any reason other than that the successful applicant was an old lessee [which according to the Court did not have much meaning] and the reviewing authority does not even refer to that ground, this Court has to grope in the dark for finding the reasons for upholding or rejecting the decision of the reviewing authority.3 Where however, the facts are so notorious that the reasons for the administrative action are too obvious and could not possibly be questioned by any body, the fact that no reasons were given by the revising authority (here the Central Government reviewing the orders of the State Government) may not vitiate action.4 An appellate authority must give reasons when it is reversing the order of the lower authority, whether the latter has given reasons or not. In C.I.T. v. Walchand & Co., 5 the Income Tax Appellate Tribunal did not agree with the view of the income tax officer, but without assigning any reasons the tribunal allowed the claims of the assessee partially. It was held that the tribunal must record its reasons in support of its decision.6 In Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala, 7 the Central Government accepted an appeal under S. 111(3)of the Companies Act against the refusal of the directors of the company to register transfer of shares in favour of the transferee. Under the company's articles of association, the directors had an absolute discretion to refuse to register any shares and they were not bound to give any reasons for doing so. On appeal to the Supreme Court under Art. 136, the Court quashed the Government's order on the ground that no reasons had been given by the officer hearing the appeal. The Court directed rehearing of the appeal and its disposal according to law by the Central Government.8 In this connection, the Supreme Court has ruled has follows in State of West Bengal v. Krishna Shaw .9 When the appellate authority disagrees with the reasons and findings of the primary authority, it must assign its own reasons as to why it disagrees. "Unless adequate reasons are given merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority." A ticklish question is raised, however, when the lower authority makes a reasoned order and the appellate authority merely affirms it. Should the appellate body be obligated to give its reasons in such a situation? In M.P. Industries,10 the Supreme Court expressed the view that no reasons need be given by the appellate body because it could be assumed that it had accepted the reasons given by the lower authority.11 But then the Supreme Court ruled that the appellate body should give its own reasons even though it may be affirming a reasoned decision of the lower body as this order may contain several reasons, some of which may be good and some may be bad. The appellate body should at least indicate clearly that it was accepting the reasons given by the lower authority. This view was reiterated in several subsequent cases.12 The most explicit statement of this proposition is to be found in Tranvancore Rayons.13 It was a case of assessment of excise duty under the Central Excises and Salt Act, 1955. The appellant company was engaged in the

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production of cellulose film but used it itself in manufacturing process. An excise duty was levied on the company. The company objected to such a levy. The first decision was made against the assessee company by the deputy superintendent of central excises. The company then appealed to the collector of customs who, after giving hearing to the company, rejected its contention in a detailed and elaborate order running into 18 pages. From this order, the company went in revision to the Central Government.14 The Government gave no personal hearing to the company, but rejected the company's contention and affirmed the collector's decision through a nonspeaking order. The company then took an appeal to the Supreme Court under Art. 136.15 The Government defended its non-speaking order by arguing that since it had dismissed the assessee company's revision petition, it was not obliged to give reasons as it must be assumed that it accepted all the reasons given by the collector. The Supreme Court quashed the Government's order on the ground that it was a non-speaking order. The Court insisted that the Government ought to have given its own reasons even when the lower authority had given its reasons and its decision was being affirmed in appeal. The Court argued that a higher body may agree with the conclusions of the lower body but may not necessarily agree with all its reasons. The reasons for the decision for the appellate body may be different from those of the lower body. The Court also emphasized that the exercise of the right of appeal to the Supreme Court would be futile if the authority chooses not to disclose the reasons in support of the decision reached by it. The Government's communication merely said that it did not see any reasons to interfere "with the order in appeal". The Court criticised the Government's order as follows:16 "The communication does not disclose the "points" which were considered, and the reasons for rejecting them. This is a totally unsatisfactory method of disposal of a case in exercise of the judicial power vested in the Central Government."

The Court pointed out that it was obviously necessary to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached where a non-judicial authority exercises judicial functions. In such a case, the Court would require to be satisfied that the decision had been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. Consequently, the Government's order was quashed and the case remanded to the Central Government for being disposed of according to law. The proposition stated in Travancore Rayons was reiterated in Siemens.17 The Supreme Court again emphasized in this case that when adjudicatory bodies are arranged in a hierarchical order (as is the case in customs duty assessment), each authority should make a speaking order. It is submitted that the simplest and the most effective rule to follow in adjudicatory proceedings will be that every body, appellate or original, must give its own reasons for its decision irrespective of any consideration, unless there is some reason (security or public interest) for not doing so. The appellate body should give its own reasons irrespective of the fact whether it is affirming the decision of the lower body and whether the lower body has given its own reasons.18 One should not forget that giving of reasons is not just a formal requirement. It serves a very important purpose, viz., it ensures that the adjudicatory body applies its own mind to the merits of the case in hand and gives due consideration to the matters in issue, and that it does not dispose of the appeal in a mechanical manner or on extraneous considerations. That the adjudicatory bodies charged with the function of adjudication perform their task in a very perfunctory and complacent manner becomes very obvious from the facts in Siemens, where different authorities concerned with the assessment of the customs duty hardly gave any reasons for their orders. It is clear that giving of reasons goes to the very root of the process of the adjudicatory bodies and nothing will improve their functioning in this area as well as their image in the public eye as this one single rule. This is the only way in which adjudicatory bodies will carry credibility with, and inspire the confidence of, the people. The proposition is thus well established that the appellate body should give its own reasons even when it is affirming a reasoned decision of a lower body.19Travancore Rayons and Siemens were both tax cases--one on excise and the other on customs. A similar view has been adopted in Ratna20 --a case of disciplinary action against a professional person. The Supreme Court has insisted that both the disciplinary committee, and then the Council of the Institute of Chartered Accountants while confirming the committee's report, should give reasons for their decisions finding a member guilty of misconduct. The Court argued that in fairness and justice, the member is entitled to know why he has been found guilty. Also, he has a right of

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appeal to the High Court and to exercise that right effectively he must know the basis on which the Council has found him guilty. Also, the Court has ruled that the Council's verdict is the first definitive verdict as to his guilt and, so in effect it is acting in first instance. While this has been the established position for long, a discordant note has been struck recently by the Supreme Court in S.N. Mukherjee21 where the Court has observed: "The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."

It is suggested that this observation ought not to be regarded as changing the legal position established since 1971, as stated above, but should be deemed only as an obiter dicta. The observation can also be interpreted to mean that if the appellate body affirms the original order, but for reasons different from those given by the original authority, then it must give its reasons.

94 See S.N. JAIN, Giving of Reasons by Administrative Bodies: Recent Cases, 16 J.I.L.I. 142 (1974). 95 AIR 1963 SC 1895 [LNIND 1962 SC 395] [LNIND 1962 SC 395] [LNIND 1962 SC 395]: 1963 (2) Supp SCR 570. Also see on this point, supra, this chapter. 96 Nibaran Chandra v. Mahendra Nath, AIR 1963 SC 1895 [LNIND 1962 SC 395] [LNIND 1962 SC 395] [LNIND 1962 SC 395]at 1900-01: 1963 (2) Supp SCR 570 at 1900-01. 97 (1978) 8 Taxation LR 1693, 1700 (Cal). 1 See, infra, Chapter XIII entitled Administrative Adjudication (I). 2 Bhagat Raja v. U.O.I., AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], 1610: (1967) 3 SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]. 3 AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]at 1613: 1967 (3) SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]. Also, Siemens Engg. & Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. 4 Nandram Hunatram v. U.O.I., AIR 1966 SC 1922 [LNIND 1966 SC 102] [LNIND 1966 SC 102] [LNIND 1966 SC 102]: 1966 Supp SCR 104. 5 AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 65 ITR 381. 6 Also, State of Gujarat v. Raghav, AIR 1969 SC 1297 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC 177]: (1969) 2 SCC 187. Compare the case C.I.T. v. Walchand & Co., AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 3 SCR 214: (1967) 65 ITR 381 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]with the case, C.I.T. v. Pilliah, (1969) 63 ITR 411 (SC). 7 AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206]: 1962 (2) SCR 339. 8 Also see, State of Madras v. Srinivasan, AIR 1966 SC 1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72]: (1967) 15 FLR 104. 9 AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC 466], 2210: 1991 Supp (1) SCC 414 [LNIND 1990 SC 466] [LNIND 1990 SC 466]. 10 M.P. Industries v. U.O.I., AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466, JAIN, Cases, 731. Also, C.I.T. v. Pilliah, (1969) 63 ITR 411 (SC). 11 Bhagat Raja v. U.O.I., AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]at 1610: 1967 (3) SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]. Also, JAIN, Cases, Chapter IX, 737. 12 State of Gujarat v. Patel Raghav Nath, AIR 1969 SC 1297 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC 177]: (1969) 2 SCC 187. 13 Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. See M.P. JAIN, Administrative Law, VII ASIL, 214-15 (1971). Also see, JAIN, Cases, Chapter IX, Sec. G, 747. 14 This was the old system. Now a tribunal has been established for the purpose, see, infra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. S.

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15 See, infra, Vol. II, for discussion on Art. 136. 16 JAIN, Cases, 749. 17 Siemens Engg. & Mfg., Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. Also see, notes 181-182, Chapter XIII. 18 See S.N. JAIN, Giving of Reasons by Administrative Bodies: Recent Cases, 16 J.I.L.I. 142 (1974). 19 Also see, M.P. Singh, Duty to give Reasons for Quasi-Judicial & Adm. Decisions, (1979) 21 JILI, 45. 20 Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 72: (1986) 4 SCC 537; JAIN, Cases, 786. 21 S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148.

(g) Disciplinary proceedings against public employees But the Supreme Court has excepted one area from the above approach, viz., disciplinary actions against government servants and employees of public bodies. In Tara Chand v. Delhi Municipality, 22 the Deputy Commissioner of the municipality, agreeing with the findings in the report of the enquiry officer, dismissed the appellant from service. The Deputy Commissioner in his order did not give any reasons of his own but merely said that he agreed with the findings of the enquiry officer. The appellant challenged the dismissal order, inter alia on the ground that the deputy commissioner gave no reasons for passing the order. Rejecting the contention, the Supreme Court ruled that in disciplinary proceedings where the disciplinary authority agrees with the findings of the enquiry officer, it need not record its own reasons, though this has to be done when it is differing from his findings. Similarly, the appellate authority need not give its own reasons when it agrees with the decision of the lower authority which has given a reasoned decision. In Tara Chand, the Court cited some old, pre- Siemens, cases to support its view.23 The Court never gave any reasons why it differentiated the disciplinary proceedings from other types of adjudicatory proceedings for the purpose of giving of reasons by disciplinary bodies. The Tara Chand proposition has been reiterated by the Supreme Court quite often.24 Recently, the Court has spelled out the reasons for this view as follows: the disciplinary proceedings against a delinquent officer begin with an enquiry; this is followed by a report; the Public Service Commission is consulted where necessary. All this material is made available to the State Government (appellate authority) and so it seems unreasonable to suggest that the State Government should record its reason why it accepts the findings of the lower body. If however the appellate body does not accept the findings of the lower body which may be in favour of the delinquent officer and proposes to impose a penalty on him, it should give reasons why it differs from the conclusions of the lower body. But even in such a case, reasons need not be detailed or elaborate.25 There does not seem much justification in distinguishing disciplinary proceedings from other adjudicatory proceedings for the purpose of giving reasons by appellate bodies. Consultation with Public Service Commission is not necessary in case of disciplinary action by corporations and other authorities against their employees. The whole career of a person may be blasted by a disciplinary action against him. It is therefore necessary to ensure that the disciplinary authority (which is the real decision-maker) does not mechanically and complacently agree with the findings of the enquiry officer but applies its own mind to the circumstances of the case before reaching its decision, consider the evidence and reach its own decision in the matter. How to ensure that the disciplinary authority has applied its mind and not adopted a complacent attitude of just mechanically agreeing with what the inquiry officer had said without itself giving much thought to the evidence on which his findings were based? There is no better way to ensure this than to require the disciplinary authority to make a reasoned order. Further, the disciplinary authority may agree with the enquiry officer but, may be, for some different reasons. In such a case, fairness demands that it spells out its own reasons for accepting those findings. In some recent pronouncements, the Supreme Court has insisted on the appellate authority giving its own reasons while agreeing with the lower authority even in disciplinary matters because of a mandatory statutory rule to that effect. In Ram Chander v. U.O.I., 26 a railway employee was removed from service after

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an enquiry (as he did not participate therein). He then filed an appeal to the railway board which agreeing with the findings of the lower authority dismissed the appeal by an order which was just a mechanical reproduction of the statutory language. The Supreme Court quashed the Board's decision for non-compliance with a statutory rule which required the appellate authority to consider several specified matters while disposing of the appeal. The appellate authority had not recorded its findings on the matters on which the rule required it to do so. The order of the board was just a mechanical reproduction of the phraseology of the rule without any attempt on its part to marshall the evidence on record with a view to decide the susceptibility of the findings recorded by the disciplinary authority. It did not indicate that the board applied its mind to the allegations of misconduct against the appellant and other attendant circumstances to see whether he deserved the extreme penalty of dismissal from service. The Court emphasized that the appellate body like the railway board must not only hear the appellant but also pass a reasoned order dealing with the contentions raised by him in the appeal. The Court emphasized that reasoned decisions will promote public confidence in the administrative process. The Court also emphasized that after the amendment of Art. 311(2), it is of the utmost importance that the appellate authority must not only give a hearing to the government servant concerned in the appeal but also pass a reasoned order dealing with the contentions raised by him in appeal. To the same effect is R.P. Bhatt v. U.O.I., 27 laying all the emphasis on the duty of giving reasons by appellate bodies. In Bhatt also, a rule similar to the one in Ram Chander was involved. These cases do not overrule Tara Chand. Bhatt really seems to have reiterated the same. These cases depend on relevant statutory rules which were not duly complied with by the non-reasoned decisions of the concerned appellate bodies. It is however true that the Supreme Court did give a liberal interpretation to these rules.28 The result is that in a disciplinary matter if there is no provision requiring giving of reasons by the appellate body concerned, it may well get away by giving a non-reasoned decision by just agreeing with the findings of the lower body. This seems to be an unjustifiable position. It may be noted that the reasons given by the Court underlining the importance of giving reasons by the appellate bodies in these two cases do as well apply to the other situations where there is no such statutory rule.29 There need not be a different rule in case of disciplinary proceedings against civil servants from the rule which applies in other areas. However, recently, in S.N. Mukherjee, a case under the Army Act, the Supreme Court has minimized the need for giving of reasons by an appellate body.30 The Court has said: "The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."

This statement does not seem to be in accord with what the Court had said in Travancore Rayons and Siemens.31 10. ONE WHO DECIDES MUST HEAR A good system of administration of justice is based on the maxim that one who decides must hear, meaning thereby that one and the same person must hear and decide, and that hearing and deciding functions should not be bifurcated. There are many advantages in combining the function of hearing and deciding in one person, e.g., the concerned party is able to address his arguments in his favour directly to the decision-maker; the adjudicator is able to watch the demeanour of the witnesses appearing before him and thus himself decide on the reliability of the evidence being tendered before him. On the other hand, when hearing is conducted by some one else, the decision-maker has to act vicariously as he has to assess the evidence collected by others. How far can the maxim operate in the area of Administrative Law? It does to some extent though not fully.32 The general pattern in this area is that of divorce between hearing and decision-making--one person holding the inquiry, but another person making the decision. This is a common practice now-a-days. The real problem is that while a judge is exclusively engaged in the task of dispute settlement, a senior administrator has to discharge several duties, of which adjudication may be one. He cannot effectively cope with the volume of work assigned to him without the assistance of subordinate officials. Accordingly, to discharge his adjudicatory task effectively, the senior administrator assigns the hearing function (which is extremely time

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consuming) to some subordinate official and confines himself to the ultimate decision-making function and he discharges this function on the basis of the materials collected at the hearing by the other officer. It needs to be pointed out that it is a settled principle of Administrative Law that the decision-making function cannot be delegated to another official unless the adjudicatory body concerned is authorised to do so either expressly or impliedly by the relevant statute.33 Nor could the decision-making body ratify the decision of the so called delegate.34 However, the function of enquiry can be assigned to another official.35 But to mitigate the defects of bifurcation of hearing and deciding functions, several precautions may be necessary, e.g.: (1) the hearing officer should make a report giving his impressions of the witnesses, making his own assessment of the evidence tendered before him and recommending a decision; (2) the decision-maker should take this report into consideration before deciding the matter; and (3) the decision-maker must base his decision on the entire record of the hearing; he must apply his mind to the materials collected at the inquiry and reach his own conclusions rather than merely accept mechanically the report of the hearing officer.36 Earlier in the day, the Supreme Court did seek to propound the principle 'one who decides must hear' and disapproved the practice of bifurcation of hearing and deciding in modern administrative process in the famous Gullapalli I case.37 Here was involved a scheme for nationalization of certain bus routes by the Government of Andhra Pradesh. Under S. Section 68Cof the Motor Vehicles Act, 1939, schemes proposing nationalisation of bus routes framed by the transport undertaking needed to be published. S. 68Dof the Act gave a person affected by such a scheme the right to file his objections against the scheme before the State Government. After hearing the objections, the Government could approve or modify the scheme. Under the Rules of Business framed by the State Government, the hearing under S. 68Dwas to be done by the Secretary to the Transport Department, but the ultimate decision was to be made by the Chief Minister. Conceding that the State Government "gave the hearing to the petitioners (objectors) in the manner prescribed by the rules made by the Governor," a closely divided Supreme Court quashed the order of the Chief Minister inter alia because the divided responsibility of hearing and deciding violated the principle of natural justice. "This divided responsibility is destructive of the concept of judicial hearing," for, in the opinion of the Court, "Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality."38 By holding that the deciding authority must itself conduct the hearing, the Court in Gullapalli I demanded a much higher standard of procedural fairness than what obtains either in the U.S.A. or in the United Kingdom. The U.S. Supreme Court held in Morgan39 that the requirement of hearing by the deciding officer was satisfied by his dipping into the record prepared by the hearing officer who heard the parties, and his consultation with his subordinates. In Britain, Local Government Board v. Arlidge 40 is an authority for the proposition that where a decision is made by a minister, it is not necessary for him to hear the parties personally; the hearing could be conducted by his officials. Commenting on the Gullapalli case, a scholar pointed out:41 It ... seems unrealistic to expect the Chief Minister to give the time required for a public hearing which could adequately explore all the facts and policy issues involved and permit all interested parties to appear. On the other hand, the importance of the ultimate question may make highly undesirable, perhaps even unthinkable, its entire delegation to the subordinate official conducting the hearing. Thus the judicial implication that the official with final deciding authority must himself conduct the hearing may present the government with the unfortunate dilemma of either unduly delegating a power of decision which should be retained by the Chief Minister, or of seriously interfering with other duties of the Chief Minister.

The Gullapalli decision, although it propounds a very salient principle, is not in accord with governmental practice, and is also difficult to follow in practice.42 The practice of one person holding the inquiry, but another person making the decision is quite common in modern administrative process. The judicial view on this point remains somewhat enigmatic. In Pradyat Kumar,43 the Supreme Court itself accepted the proposition that the enquiry function can be conferred on an officer other than the decision-maker. The

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Kerala High Court, in a service-matter, where the enquiry was held by one officer but the order of dismissal passed by his superior, held that the Gullapalli case did not mean that the evidence should be taken by the officer who made the final decision.44 What the Supreme Court meant by the rule "one who decides must hear", according to the Kerala High Court, was that the administrative agency, making the findings, must address itself to the evidence; and upon the evidence before it, must conscientiously reach a conclusion which it deems such evidence to justify. The decision will be bad if it is established that the order challenged was without any application of the mind to the evidence by the deciding functionary. In another case again, the Kerala High Court stated that the rule "one who hears must decide" would not preclude administrative tribunals from reasonably delegating some of their functions and that what is required of authorities is that they must conscientiously apply their minds to the record of the case and reach their own conclusions on the material so placed.45 In an Allahabad case concerning use of unfair means by a candidate, where enquiry was held by a small sub-committee, but decision arrived at by another committee, the High Court upheld the procedure. The Court tried to distinguish Gullapalli I by saying that the observation therein that "this divided responsibility is destructive of the concept of judicial hearing," was to be confined to a situation where personal hearing was required to be given to the affected person, and that it did not apply when there was no such requirement.46 In the instant case, a candidate was suspected of using unfair means in the examination. The examination committee prepared a charge-sheet and appointed a spot inquiry sub-commitee to enquire into the matter in detail and submit its report to the examination committee. The spot inquiry committee served the charge-sheet on the candidate obtained his explanation and submitted its report to the examination committee which cancelled his examination result and debarred him from appearing at the examination for one more year. The High Court rejected a challenge to the procedure followed that the examination committee which decided the matter did not personally hear the candidate. But the Calcutta High Court held, with reference to the proceedings of confiscation of imported goods under S. Section 182of the Sea Customs Act, 1878, that it was bad for the assistant collector to pass the order. In the opinion of the Court, it was wrong that one officer should pass the order in isolation when the hearing was conducted by another officer.47 The Madhya Pradesh High Court did not follow Gullapalli when an official heard and the Minister decided the case of takeover of a mill under the Industries (Development and Regulation) Act, 1951.48 The status of the rule "one who decides must hear" remains uncertain in India. The executive may, however, accept the Gullapalli case as a pointer to improve the procedural safeguards where the deciding officer himself does not conduct the hearing, by making provisions which may ensure impartiality of the hearing officer, impose on him the necessity of making a full and adequate report to the ultimate decision-maker along with his own initial or recommended decision, which may be communicated to the parties before the final decision, require him to give reasons for his findings, and give an opportunity to the parties to make representations against the findings and recommendations of the hearing officer. These procedural improvements would serve the needs of the society better than a literal application of the Gullapalli and a rigid principle. There have not been many cases since Gullapalli to show as to how the Administration has adjusted itself to that ruling, and how far the Courts will insist on the "one who decides must hear" principle. A few cases,49 however, show that some of the States have adopted the procedure of vesting the power of both hearing and deciding in the same official as regards nationalisation of bus routes. Further, one way to overcome the Gullapalli ruling is to make provisions in the statute itself providing for separating the two functions of deciding and hearing in situations where combination of functions appears to be impracticable in view of the exigencies of the administration. In Jeffs v. New Zealand Dairy Production & Marketing Board, 50 the Privy Council has accepted the proposition that while a decision-making authority may delegate the task of hearing the evidence to another functionary when the credibility of witnesses is not involved, the hearing officer should make a full and adequate report to the decision-maker of the evidence and submissions before it, otherwise the ultimate decision will be invalid on the ground that there has not been a fair hearing according to natural justice. In Jeffs, under the relevant law, the task of adjudication was assigned to a commission. The commission appointed a committee to hold the hearing. After holding the hearing, the committee sent its report to the commission on the basis of which it took the decision. The only material which the commission had before it while arriving at this decision was the committee's report. The members of the commission other than those who sat on the committee neither heard the interested persons orally nor saw their written statements nor did they see the evidence given at the hearing. The decision of the commission was quashed because the report

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of the investigating committee, on which the commission's decision was founded, had merely summarised the submissions made before it without incorporating the text of the written submissions, or the evidence tendered before it or even a summary thereof. The commission, therefore, was regarded as not having "heard" before deciding. The Privy Council quashed the Commission's decision for accepting the committee's report without knowing what evidence had led the committee to make its recommendations. There was no statement in the committee's report of what the evidence before it was. The Privy Council ruled that the decision of the Commission without considering any evidence itself, or any other materials, was tantamount to failure to discharge its duty to hear without there being a specific legal provision. quasi-judicial functions cannot be delegated. What can be done is to appoint a person or persons to hear and receive evidence and submissions from interested parties for the purpose of informing the decision making body of the evidence and submissions. Had the Commission before reaching the decision been fully informed of the evidence given, and the submissions made and had it considered them, then it could not have been said that the Commission had not heard the interested parties and had acted contrary to the principles of natural Justice. In some cases, it may suffice for the Commission to have before it and to consider an accurate summary of the relevant evidence and submissions if the summary adequately discloses the evidence and submissions to the Commission. When the Commission reaches the decision without knowing what the evidence was then it fails to give a hearing. The idea underlying the Jeffs ruling is that the decision maker must apply his mind to the evidence on record before deciding the matter and should not accept mechanically the views of the hearing officer. In the latter case, the decision-making power effectively flows to the hearing officer, and the decision-maker discharges only an empty formality. It is axiomatic that the decision-maker is not bound by the views and assessment and findings of the hearing officer and may reach different conclusions after assessing the entire evidence himself.51 When under the Monopolies & Restrictive Trade Practices Act, hearing took place before one officer but the impugned order was passed by another officer, the Supreme Court ruled that there was no breach of natural justice.52 Full minutes were recorded on all the points discussed in the meetings between the petitioners and the concerned officer. No salient point urged by the petitioners was missed. There was no particular officer statutorily designated to take a decision. The officer who passed the order had taken full note of all the objections put forward by the petitioners, and, thus, no prejudice was caused to the petitioners by the procedure adopted. Reference may also be made here to Ratna53 where the Supreme Court ruled that even though the concerned chartered accountant had been heard by the disciplinary committee of the Institute, he should also be heard by the Council which was the actual decision-making body in disciplinary matters. There is at least one situation where the principle "one who decides must hear" does operate. When a group of persons is to decide after hearing, all the members of the group should hear the whole of the evidence and submissions presented at the hearing before participating in making the decision. If some members are not present at the hearing, or are present only part of the time, and so they do not hear the entire evidence, it is difficult for them to appreciate and appraise the same in a judicial way.54 Justice should not only be done but should manifestly and undoubtedly seen to be done.55

22 AIR 1977 SC 567 [LNIND 1976 SC 456] [LNIND 1976 SC 456] [LNIND 1976 SC 456]: (1977) 1 SCC 472; National Fertilizers Ltd. v. P.K. Khanna, (2005) 7 SCC 597 [LNIND 2005 SC 669] [LNIND 2005 SC 669] [LNIND 2005 SC 669], 600-02 (para 9 to 11), JAIN, Cases, 755. 23 State of Assam v. Bimal Kumar Pandit, AIR 1963 SC 1612 [LNIND 1963 SC 38] [LNIND 1963 SC 38] [LNIND 1963 SC 38]: 1963 (1) LLJ 295; State of Madras v. A.R. Srinivasan, AIR 1966 SC 1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72]: (1967) 15 FLR 104; Som Datt Datta v. U.O.I., AIR 1969 SC 414 [LNIND 1968 SC 286] [LNIND 1968 SC 286] [LNIND 1968 SC 286]: 1969 Crlj 663: 1969 (2) SCR 177 [LNIND 1968 SC 286] [LNIND 1968 SC 286] [LNIND 1968 SC 286]. 24 See, for example, Ram Kumar v. State of Haryana, AIR 1987 SC 2043 [LNIND 1987 SC 604] [LNIND 1987 SC 604] [LNIND 1987 SC 604]: 1987 Supp SCC 582: 1987 (2) LLJ 504 [LNIND 1987 SC 604] [LNIND 1987 SC 604] [LNIND 1987 SC 604]. 25 R.P. Bhatt v. U.O.I., AIR 1986 SC (1040) at 1042: (1986) 2 SCC 651 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518]. 26 AIR 1986 SC 1173 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]: (1986) 3 SCC 103: 1986 (2) LLJ 334

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[LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]; JAIN, Cases, 758. 27 AIR 1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518]: (1986) 2 SCC 651. 28 Also see, K.G. Vijayan v. Dist. Manager, Food Corpn. of India, AIR 1994 Ker 52. A similar rule was made by the Food Corporation of India. Following the Ram Chander and Bhatt decisions, the Kerala High Court quashed the decision of the concerned appellate body. 29 See, H.L. KUSHNER, The Right to Reasons in Administrative Law, 24 Alta. L.R. 305 (1986); GENEVRA RICHARDSON, The Duty to Give Reasons, 1986 Pub. Law. 437. 30 S.N. Mukherjee v. U.O.I., AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SCC 594: 1990 Crlj 2148. 31 Siemens Engg. & Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981; Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. 32 See, S.N. JAIN, The One who Decides must Hear, (1974) 16 JILI, 347. 33 See, infra, Chapter XXI, under Sub-Delegation. 34 Barnard v. National Dock Labour Board, (1953) 2 QB 18; In re S. (A Barrister), (1970) 1 QB 160. 35 Pradyat Kumar v. Chief Justice of Calcutta, AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]: 1956 SCJ 259; JAIN, Cases, 797. 36 See, infra, Chapter XIX, under Discretionary Powers. 37 Gullapalli Nageswara Rao v. A.P. State Road Transport Corp., AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319; JAIN, Cases, Chapter X, Sec. C., 896. Also see, infra, Chapter XI. 38 AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]at 327: 1959 (1) Supp SCR 319. 39 Morgan v. United States, 304 U.S. 1 (1938); JAIN, Cases, 794. 40 (1915) A.C. 120, 133. 41 NATHANSON, The Right of Fair Hearing in Indian, English and American Administrative Law, I JILI 493, 519 (1958-59). Also cf. SCHWARTZ, supra, at 596-99. 42 For a critical comment on this case, see, NATHANSON, The Right of Fair Hearding in Indian, English and American Administrative Law, I J.I.L.I. 493, 519 (1958-59). AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 (1) Supp SCR 319; DESHPANDE, "The One Who Decides Must Hear", 2 J.I.L.I, 423 (1959-60). 43 Pradyat Kumar Bose v. Chief Justice of Calcutta, AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]: 1956 SCJ 259: (1955) 2 SCR 1331 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]; JAIN, Cases, 797. 44 Raghava Menon v. I.G. Police, AIR 1961 Ker 299 [LNIND 1960 KER 343] [LNIND 1960 KER 343] [LNIND 1960 KER 343]. 45 Moideenkutty v. State of Kerala, AIR 1961 Ker 301 [LNIND 1960 KER 386] [LNIND 1960 KER 386] [LNIND 1960 KER 386]. 46 Triambak Pati v. B.H.S. and I. Edn., Allahabad, AIR 1973 All 1 [LNIND 1972 SC 411] [LNIND 1972 SC 411] [LNIND 1972 SC 411]. 47 Ramchand Jagdishchand v. Dy. Collector of Customs, AIR 1963 Cal 331 [LNIND 1961 CAL 72] [LNIND 1961 CAL 72] [LNIND 1961 CAL 72]. 48 Indore Textiles Ltd. v. U.O.I., AIR 1983 MP 65 [LNIND 1982 MP 48] [LNIND 1982 MP 48] [LNIND 1982 MP 48]. 49 Nehru Motor Transport Co-op. Societies v. State of Rajasthan, AIR 1963 SC 1098 [LNIND 1962 SC 432] [LNIND 1962 SC 432] [LNIND 1962 SC 432]: 1964 (1) SCR 220; C.M.P. Co-operative Societies v. State of Madhya Pradesh, AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: 1967 (3) SCR 329. 50 (1967) 1 AC 551. Also see, JAIN, Cases, 798, and, infra, Chapter XXI, under Sub-delegation. 51 Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374; U.O.I. v. Goel, AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208]: 1964 (1) LLJ 38. Also see, V.S. DESHPANDE, The One Who Decides Must Hear, 2 JILI 423 (1959-60). 52 Ossein & Gelatine Mfgrs. Ass. of India v. Modi Alkalies & Chemicals Ltd., AIR 1990 SC 1744 [LNIND 1989 SC 393] [LNIND

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1989 SC 393] [LNIND 1989 SC 393]: (1989) 4 SCC 264: (1989) 66 Comp Cas 853. 53 Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]at p. 72: (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]. 54 Tan Boon Chee, David v. Medical Council of Singapore, (1980) 2 MLJ 116;JAIN, Cases, 830. 55 See, infra, Chapter XI for discussion on this maxim.

11. CONSULTATION BY DECIDING AUTHORITY A decision-making authority may take the assistance of subordinates, or seek the advice of some other authority. This raises two questions-(i)-legality of such a course, and (ii) the problem of disclosure of the advice or assistance received by the deciding authority to the person concerned. There does not seem to be any problem with regard to the first question. The authority can seek such an assistance provided it decides the matter after applying its own mind. This aspect of the matter has already been discussed above. The second is a difficult question. A basic proposition applicable here is that, after hearing has been completed, no additional material unknown to the concerned party, ought to be taken into consideration by the decision-maker. This means that the decision-maker cannot seek advice from an outside agency and not disclose it to the concerned party and invite his comments thereon before taking it into consideration.56

This question arose in a significant but arguable pronouncement on what constitutes natural justice made by the Supreme Court in Sunil Kumar v. State of West Bengal.57 An enquiry officer was appointed to enquire into certain charges against the appellant, a member of the Indian Administrative Service. The enquiry officer submitted a report after enquiry giving his findings on the various charges levelled against the appellant. This report was sent to the Vigilance Commissioner for his advice.58 Thereafter, the disciplinary authority, viz., the State Government, came to its own conclusions on the findings. The appellant was reduced from a higher salary to a lower salary in the same grade. He challenged the order on several grounds. One of the grounds was that consultation with the Vigilance Commissioner, who had no statutory status, was unjustified; that the government did not furnish the report of the Vigilance Commissioner to the petitioner though the ultimate findings of the government were based on that report. The Supreme Court (per CHINNAPPA REDDY, J.) overruled this objection holding that the disciplinary authority committed no serious or material irregularity in consulting the Vigilance Commissioner. The conclusions of the disciplinary authority were not based on the advice tendered by the Vigilance Commissioner, but were arrived at independently, on the basis of the charges, the relevant material placed before the enquiry officer in support of the charges, and defence of the appellant. The final conclusions of the disciplinary authority were so much at variance with the opinion of the Vigilance Commissioner that it was impossible to say that the disciplinary authority's mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. In the words of the Court.59 If the disciplinary authority arrived at its own conclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority consulted the Vigilance Commissioner and obtained his views on the very same material.

The Court held that there was no merit in the appellant's argument that a copy of the report of the Vigilance Commissioner ought to have been supplied to him. The findings communicated to him along with the show cause notice for imposing punishment on him were those of the disciplinary authority and no reference was made therein to the views of the Vigilance Commissioner. "That the preliminary findings of the disciplinary authority happened to coincide with the views of the Vigilance Commissioner is neither here nor there." A perusal of the Court's opinion in this case leaves behind an uncomfortable feeling that it adopted a rather perfunctory attitude towards the problems of natural justice. The Court's formulation on the question of the supply of the Vigilance Commissioner's report to the petitioner leaves much to be desired. Howsoever much

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the Court dicountenanced and devalued the importance of consultation with the Vigilance Commissioner, the truth of the matter was that his views were taken into account by the disciplinary authority in arriving at its own conclusions. There is no denying the fact that it amounted to considering some materials obtained behind the back of the petitioner and there are quite a few cases in which this has been held to constitute violation of natural justice.60 A question arises that if the Vigilance Commissioner's report is not to be taken into account at all by the concerned disciplinary authority, or if it plays no role in influencing its mind, then consultation with him is an empty formality and there is really no point in consulting him and it is better to drop the formality altogether. But, in the instant case, the fact that the initial findings of the disciplinary authority were in consonance with the report of the Vigilance Commissioner shows61 that his views did have some impact on the authority which practically adopted the Commissioner's views in toto. It was only as a result of consultation with the Public Service Commission that the authority changed its views. The Commission has a constitutional status, but the Vigilance Commissioner has only an administrative basis. If there is no flaw in the authority consulting the Commissioner, then the disciplinary authority can also consult any other person or authority, for, on what basis, can a distinction be drawn between the Vigilance Commissioner and any other administrative authority. Natural justice requires that the authority must apply its own mind to the material before it and ought not to be influenced by any other material obtained behind the back of the concerned party.62 The Court also did not address itself to the question: what would have been the position had the State Government agreed with the views of the Vigilance Commissioner in preference to the views of the PSC. The situation would have become very complicated had the PSC's opinion been to hold the officer not guilty of any charges, and the Vigilance Commissioner opined to hold him guilty, and the State Government agreed with the V.C's opinion. Therefore, to avoid any such difficulty, three options are available to the government, namely, (i) not to consult the Vigilance Commissioner for drawing of conclusions from the material on record; (ii) if he is consulted, a copy of his report be submitted to the delinquent officer for his comments thereon before a final decision is taken; (iii) give a legal status to the Vigilance Commissioner and provide for consultation with him by way of a statutory procedure.63 Whatever has been said above is vindicated by the Supreme Court decision in State Bank of India v. D.C. Aggarwal .64 An inquiry was held against an employee of the bank. The inquiry officer found certain charges against him not proved but sustained certain charges against him. The bank directed the inquiry officer to submit his report through the Central Vigilance Commissioner. The CVC disagreed with the inquiry officer, held all the charges against the concerned employee proved and suggested imposition of a major punishment not less than removal from service. The Bank's disciplinary committee disagreed with the CVC on the quantum of punishment as it thought that since the bank had not sustained any loss by the employee's wrongful actions, and taking into account the totality of circumstances, imposition of the punishment of removal from service would be too harsh. The disciplinary committee did however agree with the CVC's opinion that all charges against the employee had been proved. The Supreme Court quashed the order of the disciplinary committee on the ground that it took into consideration the CVC's suggestions without supplying a copy thereof to the concerned employee and, therefore, the committee's order was vitiated. The report of the CVC was prepared behind the back of the employee without his participation and this was violative of "procedural safeguard and contrary to fair and just inquiry. The request of the respondent to supply him a copy of the CVC's report was rejected by the disciplinary authority on the ground that the correspondence with the CVC was privileged.65 The Court refused to accept the argument that the CVC's recommendations were confidential. The Court categorically ruled that action against an employee on "confidential document" obtained behind his back and without his knowledge or supplying him a copy thereof was violative of natural justice. 12. INSTITUTIONAL DECISIONS An institutional decision negates the doctrine "One who decides must hear." Decisions are 'institutional' because the decision as a whole is that of the concerned department as an administrative entity rather than the personal decision of any designated officer individually. In an institutional decision, no one individual officer hears the party personally and decides the case himself as a judge does. Usually, one official hears the party concerned; he may take the decision in the name of the government if he is authorised to do so. If not so authorised, he submits the record of hearing to the higher officer for his taking the decision, again, in the name of the government. A situation of institutional decision comes into existence when the decision

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making power is conferred on an institution, such as, government, or a department, or a Minister, and not on a designated official specifically. For example, when decision-making power is conferred by law on a Minister, it does not mean that the Minister himself personally applies his mind to the matter and arrives at a decision. What it means is that the decision is arrived at either by the Minister himself, or by some one else in his department for whom the Minister is constitutionally responsible. Several reasons give rise to the system of institutional decisions. Government is an impersonal entity and can function only through officers. A Minister is a busy person and cannot take each and every decision himself. It may be that a decision of complex issues needs the expertise, specialization, opinions and perspective of a number of staff members. From the point of view of the affected person, such a decision suffers from two main drawbacks: (1) the authorship of such a decision within the concerned department may not be known to the affected person as it is reached by the cumulative application of minds by several officials in the concerned department. The decision-maker is not identified or individualized as the decision stands in the name of the concerned organization or the institution. The decision thus suffers from anonymity. (2) There occurs a division in the decision-making process: while one official may hear another may decide. In the area of administrative adjudication, some decisions are made personally by identified administrators, or a small group of officials who take responsibility for the same. But this is not always the case and, at times, a decision may be the end-product of institutions and institutional processes rather than that of one designated person. The procedure of institutional decision-making is essentially different from the judicial decision-making in which the judge personally hears, applies his own discretion and decides the matter; he is appointed to adjudicate upon disputes between parties and his decision is personal; he himself presides at the trial; he hears the evidence, watches the demeanour of witnesses, draws his own conclusions as to the credit-worthiness of the witnesses, himself hears the arguments of the concerned parties, then decides and writes his reasons for the decision. All materials which form the basis of the decision are presented in open Court so that every one knows them. There is one more point of difference between judicial and institutional decisions, viz., the routine departmental procedure, notings on the file etc., by various officials go on as usual before the final decision is arrived at, and this, to some extent, even compromises the rule, discussed earlier,66 that no material should be used against a person without giving him an opportunity to rebut the same. Much of the notings and views expressed on the file concerned by various officials, as the file moves from one official to another within the department before it reaches the stage where final decision is formally taken, may never come to the notice of the affected person, and he would never get a chance to rebut the same. A decision by a department differs from the decision by a designated official, body or tribunal created exclusively for adjudication, for while in the latter case the discretion exercised and the views taken are of the specified authority itself, in the former case, the decision is that of the department as a whole and represents the cumulative wisdom of a number of anonymous officials through whose hands the file of the case may pass, and in this sense it is institutional and not a personal or an individual decision of one person. As early as 1914, in the famous case of Local Government Board v. Arlidge, 67 the House of the Lords upheld the validity of an institutional decision. A borough council made a closing order on a house as being unfit for human habitation. The owner appealed to the Local Government Board, a department of the Central Government. A local public inquiry was held by an inspector; he visited the house but the respondent did not attend the inquiry or tender evidence before the inspector. He submitted his report to the Board which then rejected the owner's appeal. The order of the Board did not indicate which officer of the Board had taken the final decision on the matter. The owner then challenged the Board's decision inter alia on the ground that the Board had not given him a fair hearing on his appeal because--(i) he was entitled to know which of the Board's officials had actually decided the appeal; (ii) that he was not allowed to appear before the official who actually decided the matter; and also (iii) that the inquiry report had not been disclosed to him. He claimed that the inspector's report should have been shown to him and he ought to have been given an opportunity to support or rebut the inspector's conclusions for the consideration of the decision-maker. The House of Lords rejected all these contentions ruling that the board was not bound to hear him orally. The respondent had an opportunity of presenting his case before the inquiry officer. The point which prevailed with the House was that in entrusting the power to a government department, and not a Court, Parliament must have intended that the department acts in the normal manner following its own departmental procedure, and takes its decision without having to conduct itself like a Court. Lord HALDANE, the Lord CHANCELLOR, pointed out

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that the Minister is entrusted with a large volume of work and he cannot do the bulk of it himself. He is thus per force compelled to rely on the assistance of the staff. When a Minister is entrusted with the task of taking a decision, he is expected to obtain his materials vicariously through his officials and he would have discharged his duty if he sees that they obtained these materials properly for him. He is not required to do every thing himself. Also, when a department is directed to dispose of an appeal, it does not mean that any particular official in the department is to dispose of it. It was also ruled that it was not necessary to show the inquiry report to the owner.68 The effect of Arlidge has been manifold, viz.: (1) It is not necessary to identify or individualize the very official in the department who actually makes the decision in a given case. (2) The department concerned can deal with the matter in the usual departmental routine in which it deals with any other administrative matter, but it must fairly listen to both sides. (3) It is not necessary to disclose the enquiry report to the party concerned. (4) One person can hold an enquiry or a hearing and another person can decide the matter. (5) It is not necessary that the person who decides must have himself heard the person affected.69 Schwartz graphically calls an institutional decision as a "vicarious type of hearing and decision."70 Schwartz describes the process of an institutional decision as follows: "The institutional decision is the decision of the agency as an administrative entity rather than the personal decision of a known individual administrator.... In the normal agency case, no one individual personally hears and decides the case the way a trial judge does."71 He says further: "[E]vidence is taken before a hearing officer,..... other subordinates sift the evidence; specialists on the staff contribute to the writing of the reports and recommendations. The agency heads ... depend so heavily on the work of the staff that they themselves may not know the details of the cases decided in their name." The decision thus becomes that of the agency as a whole, with the work being done almost entirely by anonymous members of the agency's staff, rather than the personal decision of the agency head in whose names it is rendered. The actual decision-makers within the agency are never publicly identified. The disadvantage is, as the U.S. Attorney General's Committee on Administrative Procedure in Government Agencies points out, that "as the conduct of the [administrative] hearing becomes divorced from responsibility for decision, undesirable consequence ensue. The hearing itself degenerates, and the decision becomes anonymous". The hearing officer may not take his work seriously as he knows that the ultimate decision is to be reached not by him but by someone else.72 In this context much of the protection afforded by natural justice is diluted as the person affected may never have a chance to counter the various views expressed against his position. But, on the other hand, as stated by Davis, the strength of the institutional decision "springs from the superiority of group-work--from internal checks and balances, from cooperation among specialists in various disciplines, from assignment of relatively menial tasks to low-paid personnel so as to utilize most economically the energies of high-paid personnel."73 Even with these advantages of an institutional decision, there are two notable drawbacks in this system. Firstly, the deciding officer is unable to watch the demeanour of a witness and to make up his own mind as to the credibility of the witness. Secondly, the party is unable to put his arguments before the person who really counts and to persuade him directly to accept his viewpoint. In the U.S.A., it is quite common for hearing officers to conduct hearings instead of the top agency members who wield the ultimate power of decision.74 To reconcile the inevitability of the institutional decision in the modern administrative process with its weaknesses, the U.S. Administrative Procedure Act, 1946, makes several provisions for regulating the decisional process in such cases. Thus, where the top decision-maker in the agency does not himself preside at the reception of the evidence, then the hearing officer is required to make the initial or recommended decision which shall include a statement of "findings and conclusions, as well as, the reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record."75 Under such a provision, the hearing officer would have to mention the reasons for giving a particular weight and credibility to the testimony of a witness where the demeanour of a witness is important. This would enable the deciding authority to make up its own mind about the matter from the record. Then the Act provides that before any hearing officer's report is filed, and before final decision is taken by the authority, the parties shall have the opportunity to submit written arguments.76 Thus, the initial decision is served on the parties so that they can submit exceptions thereto. The power to give initial decision vested in the hearing officer is a concession shown to the principle "one who decides must hear". The Act also contains provisions for ensuring the impartiality of the hearing officers and their independence of the agency. The hearing officers are now known as administrative law judges. The Act takes care of their independence.

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Provisions have been made to ensure security of their tenure. Such a judge can be removed only for good cause established and determined by the civil service commission after opportunity for hearing.77 So the U.S.A. has got an administrative trial judiciary.78 In England also, it is an established practice that where the decision-making power is conferred on a "Minister", it is not he who has to take the decision himself; decisions are reached by departmental officials. In many cases, relevant materials for arriving at a decision are collected through a local public inquiry conducted by the inspectors coming either from the department itself or from outside it. To ensure their impartiality, the Franks Committee recommended that the inspectors be placed under the control of the Lord CHANCELLOR.79 The committee was also of the opinion that the inspector's report should summarise the relevant evidence, set out his findings of fact and contain recommendations for the Minister's final decision. The inclusion of recommendations was necessary, "since the inspector hears the evidence at first hand."80 In Bushell v. Secretary of State for the Environment, 81 it has been held that there is no breach of natural justice when, after the local inquiry, the Minister receives departmental advice while deciding the question whether he should confirm a scheme or not. In Bushell, the Minister's ultimate decision was held to be administrative. Lord DIPLOCK said in this connection, "No one could reasonably suggest that as part of the decision-making process after receipt of the report the Minister ought not to consult with the officials of his department and obtain from them the best informed advice he can to enable him to form a balanced judgment on the strength of the objections and merits of the scheme in the interests of the public as a whole, or that he was bound to communicate the departmental advice that he received to the promoting authority and the objectors". This decision seeks to promote intra-departmental consultation, but not consultation with an outsider. By calling the decision 'administrative', an attempt has been made to by-pass the rule that after completion of the hearing no additional material ought to be taken into consideration by the decision-maker.82 In spite of the defects inherent in the system of institutional decision-making, the system has come to stay in the modern administrative process. A better alternative may be to vest adjudicatory powers in a designated official. The best solution may however be to deprive the departments and the Ministers, as such, of adjudicatory powers and vest the same in tribunals.83 But this is not always done and departments and Ministers do like to keep some adjudicatory powers in their own hands. In India, it is a well established proposition now that when power of adjudication is conferred by a statutory provision on the President or the Governor, this is an instance of an institutional decision. The President or the Governor is not expected to decide the matter personally; it is to be decided by any official authorised to do so under the Rules of Business, and the decision communicated in the name of the President or the Governor, as the case may be.84 But when adjudicatory power is conferred on a specific official, it is he, and he alone, who ought to make the final decision. Therefore, when adjudicatory power is conferred on the Lt. Governor of a Union Territory, he has to make the decision himself; he is not in the same position as the Governor of a State. In a statutory lease85 between the President of India and the petitioner, there was a condition that no part of the building erected on the demised land could be used for any purpose other than that of residence without the prior permission of the Lt. Governor of Delhi. The petitioner rented out a portion of the building to a bank. He received a notice from the Land and Development Officer, Ministry of Works, Govt. of India (LDO) to show cause as to why his lease ought not be cancelled. The petitioner then applied to the Lt. Governor for ex post facto sanction permitting the use of the portion of the house for commercial purposes. Thereafter, he received another notice that his lease had been cancelled. He filed a suit for a declaration that the forfeiture of the lease was null and void. Two main contentions were raised by the plaintiff in Devi Datt v. U.O.I. 86 which are relevant here. One, the notices issued by the LDO were invalid. The question was whether the officers who issued the notices for and on behalf of the President had the requisite authority to act and authenticate the same on behalf of the President of India.87 On this point, the Delhi High Court came to the conclusion that the Land and Development Office was competent to deal with lease deeds of government property in Delhi and, therefore, the officers were competent to authenticate the notices when expressed to have been made for and on behalf of the President. Thus, the impugned show cause notices and the final order of forfeiture were issued by officers who were duly authorised in this behalf by the government. The other crucial contention was: who rejected his request for ex post facto sanction addressed to the Lt. Governor who alone was the competent authority under the terms of the lease to grant the requisite permission for change of user. The Court's view was that "the power could be exercised by

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none else than the Lt. Governor himself" as "the Lt. Governor is not a mere constitutional head in the sense the Governor is in a State." The Lt. Governor had "to bring to bear upon the whole matter his own unbiased mind", because the threat of forfeiture entailed serious consequences for the plaintiff. In the instant case, the Lt. Governor did not apply his own mind to the application for grant of ex post facto sanction. The Lt. Governor ought to have given a hearing to the plaintiff because "strict adherence to the rules of natural justice becomes absolutely necessary in cases dealing with interference of property rights of a person by an administrative tribunal". The Court thus held the order of forfeiture of the lease as being bad in law. The way the system of institutional decision-making functions in practice in India can be illustrated by referring to a few Court cases. As regards the exercise of adjudicatory power by a government department, the first point to note is that which category of officials in the department would make a particular decision depends upon the Rules of Business.88 Thus, the exercise of judicial function conferred on a department is regulated, like any other administrative work, by the Rules of Business.89 This can be illustrated by U.O.I. v. Sripati Ranjan .90 The respondent was dismissed from service by the collector of customs. He preferred an appeal to the President as was provided for under the service rules. The Minister of Finance rejected the appeal without any reference to the President. On being challenged, the procedure was upheld by the Supreme Court. The Court emphasized that the President was a constitutional head and the appeal had been disposed of by the Minister according to the Rules of Business.91 At times, the relevant statute may itself provide for allocation of such a function to a designated official. In such a case, the work within the department may be allotted either under the Rules of Business or the parent statute.92 An example of an institutional decision is furnished by a Madhya Pradesh High Court case.93 In this case, the petitioner was given post-decisional hearing after take-over of management of its undertaking under Section 18AAof the Industries (Development and Regulation) Act. Hearing was given to the petitioner by a joint-secretary to the Government of India. He recommended to the Minister that although technically the grounds of take-over existed yet, on moral grounds, the take-over should be withdrawn. The file was thereafter placed before the deputy secretary. He prepared a note supporting the take-over of management. The Commerce Minister "approved" the note of the deputy secretary without personally hearing the petitioner. The question was raised in the High Court whether this type of hearing and decision-making was legal. The Court held that there was no need for the Minister himself to hear the petitioner. The Court pointed out that the normal practice of the government departments is that a Minister takes assistance from his subordinates. There is no violation of the principles of natural justice if the investigation or hearing is done by an official or a committee and the final decision is taken by the Minister after going through the report of, and the evidence and materials collected by, the official or the committee. From the judgment it is not clear whether the Minister himself actually looked into the entire materials and evidence. What the judgment says is that the Minister only "approved" the note prepared by the deputy secretary. Had the Minister really approved the order after perusing the entire materials, then his order could not be faulted even in the absence of oral hearing by him personally of the petitioner since such a hearing is not mandatory. But the judgment does not clearly state so. In Labh Singh v. Union of India, 94 the Delhi High Court has upheld the validity of an 'institutional' decision against a challenge on the grounds of sub-delegation. Such a question arises mainly when the power to make a quasi-judicial decision is conferred on the government or a department or an organisation. In such a case, the main question is: who should exercise such a power? Should it be exercised by a Minister, Secretary or the Cabinet? The Displaced Person (Compensation and Rehabilitation) Act, 1953, contains a full-fledged adjudicative machinery culminating in the Chief Settlement Commissioner. Finally, under Section 33, the Central Government is given power to call for the record of any proceeding under the Act and pass any such orders as are not inconsistent with any provisions of the Act or the Rules made thereunder. In Labh Singh, the petitioner made an appeal to the Government after his petition was dismissed by the Chief Settlement Commissioner. The Government dismissed his application on the ground that it saw no reasons to interfere with the order of the Commissioner. The Government's order was challenged on the ground that it was passed by the Deputy Secretary to the Government who had no authority to do so under Section 34of the Act. Rejecting the contention, the Court pointed out that under the Transaction of Business Rules, Government's business can be done by various officers on its behalf. Unless a certain item of business is

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specified to be done by the Minister or by the Secretary himself, the rest of the business can be done by any of the officers of usual hierarchy in the Ministry. The Deputy Secretary being an officer in this hierarchy could transact Government's business without the Government issuing any separate authorisation to him for transacting any particular business on its behalf. The Government's decision is 'institutional' as distinct from a 'personal' decision and, therefore, any authorised officer may deal with the business in question on behalf of the Government. The Court made two more points in this regard in the instant case, viz. (1) Deputy Secretary's decision could not be questioned on the ground that the decision under appeal was given by the Chief Settlement Commissioner who was higher in rank than the Deputy Secretary, for an officer acting for the Government under the Business Rules acts not for himself but for the Government. The decision of the Deputy Secretary was deemed to be that of the Central Government which was superior to the Chief Settlement Commissioner. (2) There was no need for any specific delegation of power to the Deputy Secretary under the statute. The provision of delegation in the Act was in addition to the usual machinery established by the Business Rules to act for the Government. The Labh Singh decision is notable insofar as the Government acts increasingly as the final appellate or revisory authority in a large number of adjudications under various laws and certain crucial issues connected with such institutional decisions are sought to be clarified by this pronouncement. A significant judicial pronouncement in the area is Mahabir Prasad Santosh Kumar v. State of U.P. .95 A licence issued under the U.P. Sugar Dealers' Licensing Order, 1962, to deal wholesale in sugar was cancelled by the licensing authority. The appellant applied for a copy of the order but it was not supplied to him. An appeal to the State Government was also rejected and the reasons for the same were not communicated to the appellant. The Supreme Court quashed the order cancelling the licence. It criticised both the licensing authority as well as the State Government for failure to give reasons. The Court emphasized that as the licence could only be cancelled for "good and adequate" reasons, the licensing authority should have given reasons for cancelling the licence. Only then could the right of appeal to the State Government be exercised effectively. If the aggrieved party is not supplied the reasons, the right to appeal becomes an empty formality. Also, the order made by the State Government, on appeal, was subject to the High Court's supervisory power under Article 227and the Supreme Court's appellate power under Article 136, and these Courts would be placed under a great disadvantage if the Government were to dismiss the appeal without giving any reasons.96 Criticizing the manner in which the two adjudicatory bodies had acted, in the instant case, the Supreme Court said: "The case disclosed a disturbing state of affairs. The authorities have disclosed by their conduct a reckless disregard of the right of the appellants." Directing its attention specifically to the manner in which the appeal had been disposed of in the instant case by the State Government, the Court observed:97 "When the matter was carried in appeal, the State Government could at least have acted with some awareness that citizens have rights which must be protected against possible arbitrary action by subordinate officials... From the materials on the record it cannot be determined as to who considered the appeal addressed to the State Government, and what was considered by the authority exercising power on behalf of the State Government.

Emphasizing upon the giving of reasons by adjudicatory bodies the Court stated: "The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without reasons is a negation of the rule of law....."

The Supreme Court has also made some adverse comments on institutional decision-making in Travancore Rayons.1 When power is conferred by a statute on the Central Government to decide a controversy, it is not clear which official in the concerned department will exercise the power and decide the matter. In the instant case, the Government's order disposing of the revision petition from the collector's order merely stated that all points made by the applicant had been considered but that the Government saw no justification for interfering with the collector's decision. The Government issued its order in a printed form signed by the Joint Secretary, Ministry of Finance. Commenting adversely on the order, the Court observed:2 The order does not disclose the name or designation of the authority of the Government of India who considered "the

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points made by the applicants," and it is impossible to say whether the officer was familiar with the subject-matter so that he could decide the dispute without elucidation and merely on a perusal of papers... The form in which the order was communicated is apparently a printed form. There is a bare assertion by the Joint Secretary to the government of India in his communication that the Government of India had 'carefully considered the points made by the applicants;' there is no evidence as to who considered the "points" and what was considered... A party who approaches the Government in exercise of a statutory right, for adjudication of a dispute is entitled to know at least the official designation of the person who has considered the matter, what was considered by him, and the reasons for recording a decision against him."

The Court has thus clearly expressed its dislike for an institutional decision where an unidentified official disposes of the matter. In taking this view, the Supreme Court has departed from what the House of Lords said in the Arlidge case.3 It is clear from the above cases that the working of the system of institutional decision-making is none too satisfactory. While the power to decide a matter is conferred on the Minister, or the Government, by the statute, in actual practice, the decision is made at the level of the Deputy/Joint Secretary. As Labh Singh shows, the decision of a senior officer was reversed by an officer junior to him in rank. This was justified on the basis that the latter was working on behalf of the Government of India. Technically, the position may be correct, but in actuality the position is somewhat odd. Also, as the above cases show, many a time the Government disposes of an appeal/revision without giving any reasons, and, perhaps, without even fully considering the merits of the matter.

56 Mahadayal Prem Chandra v. C.T.O., AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1959 SCR 551. 57 AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]: (1980) 3 SCC 304; JAIN Cases, 852. 58 See, infra, Vol. II, for Vigilance Commissioner. 59 JAIN, Cases, 854. 60 See, for instance, Dhakeswari Cotton Mills v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 (1) SCR 941. 61 What appears to have happened in this case is that the State Government's findings were first in accord with the view of the Vigilance Commissioner. The government changed its view later after consulting the Public Service Commission. 62 supra, notes 129a-134a: (1935) 1 KB 249. 63 For further discussion on this point see, infra, under Central Vigilance Commission. 64 AIR 1993 SC 1197 [LNIND 1992 SC 697] [LNIND 1992 SC 697] [LNIND 1992 SC 697]: (1993) 1 SCC 13: 1993 (1) LLJ 244 [LNIND 1992 SC 697] [LNIND 1992 SC 697] [LNIND 1992 SC 697]; JAIN, Cases, 805. 65 JAIN, Cases, 807. 66 See under heading: 'Disclosure of Materials to the Party', supra, this chapter. See also under heading: 'Receiving Evidence in the Presence of the Concerned Party', supra, this chapter.. 67 (1915) AC 120, JAIN, Cases, 833. 68 Also see, infra, Chapter XXI on Sub-Delegation. 69 R. v. Commission for Racial Equality, ex parte Cottrell and Rothon, (1980) 3 All ER 265. 70 SCHWARTZ, Administrative Law--A Casebook, 594-616 (1988). Also, SCHWARTZ, Administrative Law, 384-94 (1984). 71 SCHWARTZ, Adm. Law--A Casebook, 597 (1988). 72 Report at 45 (1941). 73 DAVIS, Administrative Law 330 (1951). 74 BYSE, The Federal Administrative Procedure Act, 1, JILI 89, (1958-59). SCHWARTZ, Casebook, 485-488; SCHWARTZ and WADE, Legal Control of Govt., 250-1. 75 S. 557(c).

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76 U.S. Administrative Procedure Act, 1946, Section 557(c). 77 Ss. 3105, 7521, 5372 3344 and 1305 of the Federal A.P.A. See, SCHWARTZ, Administrative Law--A Casebook, 490-96, 617 (1988); SCHWARTZ, Recent Developments in American Adm. Law, (1980) LVIII Can. B.R. 319. 78 See SCHWARTZ, Recent Developments in American Administrative Law, (1980) LVIII Can. B.R. 319. Also see, infra, Chapter XI, 79 Report of the Committee on Administrative Tribunals and Enquiries, 65 (I957). 80 Report of the Committee on Administrative Tribunals and Enquiries, 71. Also see, JUSTICE-ALL SOULS, Administrative Justice, Chapter 10 (I988). 81 (1981) AC 75. 82 See under heading: 'Receiving Evidence in the Presence of the Concerned Party', supra, this chapter. Also see, supra, this heading of this chapter. 83 See, infra, Chapter XIII. 84 Samsher Singh v. State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246]: (1974) 2 SCC 831: 1975 (1) SCR 84. Also see, infra, Chapter XXI, for discussion of Rules of Business. 85 The term is used for a lese executed in accordance with the pro forma prescribed in the Act in question and thus all the terms and conditions contained therein are statutorily binding on the parties. 86 AIR 1985 Del 195 [LNIND 1984 DEL 397] [LNIND 1984 DEL 397] [LNIND 1984 DEL 397]. 87 The Court in this connection referred to Art. 73 and the following cases: Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND 1952 SC 22]: 1952 Crlj 955: 1952 SCR 612 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND 1952 SC 22]; E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196]: 1962 (2) SCR 195; Ghaio Mal & Sons v. Union territory of Delhi, AIR 1959 SC 65 [LNIND 1958 SC 111] [LNIND 1958 SC 111] [LNIND 1958 SC 111]: 1959 SCR 1424; Ishwarlal Girdharlal Joshi v. State of Gujarat, AIR 1968 SC 870 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967 SC 326]: 1968 (2) SCR 267. See, infra, under Sub-Delegation. 88 See, infra, Chapter XXI. 89 The Gullapalli I case, AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 (1) Supp SCR 319; Labh Singh v. U.O.I., AIR 1970 Del 171 [LNIND 1969 DEL 165] [LNIND 1969 DEL 165] [LNIND 1969 DEL 165]. 90 AIR 1975 SC 1755 [LNIND 1975 SC 261] [LNIND 1975 SC 261] [LNIND 1975 SC 261]: 1975 (2) LLJ 363: (1975) 4 SCC 699 [LNIND 1975 SC 261] [LNIND 1975 SC 261] [LNIND 1975 SC 261]. 91 Also see, Samsher Singh v. State of Punjab, AIR 1974 SC 2192 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246]: 1975 (1) SCR 814; JAIN, Cases, Chapter IX, Sec. J., 837. Also, infra, Chap XXI. 92 infra, Chapter XXI. 93 Indore Textiles Ltd. v. U.O.I., AIR 1983 MP 65 [LNIND 1982 MP 48] [LNIND 1982 MP 48] [LNIND 1982 MP 48]. 94 AIR 1970 Del 171 [LNIND 1969 DEL 165] [LNIND 1969 DEL 165] [LNIND 1969 DEL 165]; JAIN, Cases, Chapter IX, Sec. J., 851. AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; JAIN Cases, Chapter IX, Sec. J. 856. 95 For Arts. 136 and 227, see infra, under Judicial Control. 96 Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]at 1304: (1970) 1 SCC 764 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1971) 1 SCR 201 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188] 97 Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]at 1304: (1970) 1 SCC 764 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1971) 1 SCR 201 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]. 1 Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. 2 Travancore Rayons v. U.O.I., AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439], at 864: (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]. 3 Local Government Board v. Arlidge, (1915) AC 12. For comments on this aspect of the case, see, M.P. JAIN, 14 JILI 602

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(1972).

13. DISCLOSURE OF THE HEARING/INQUIRY OFFICER'S REPORT As stated above, the best arrangement is for the decision-maker to himself hear the concerned party and come to his own decisions, as regards the facts involved in the situation. But, in the modern administrative process, division in the decisional process--one person hearing and the other person deciding is resorted to quite frequently. This is because the higher officials having power to decide have to use lower officials for the purpose of holding hearings. If this were not done, the administration would come to a grinding halt, because the procedure of hearing is time consuming and senior officers cannot spare so much time as they have multifarious duties to discharge.4 Thus, in cases of disciplinary proceedings against civil servants, it is usual for the disciplinary authority to appoint an enquiry officer to hold the hearing.5 According to one study,6 in cases of proceedings under Art. 311 of the Constitution against civil servants working in the C.P.W.D., "save in one case, the disciplinary authority had never personally conducted enquiries into the charges levelled against its subordinates."7 The enquiry officer may be drawn either from within the department itself, or from the Central Vigilance Commission which has Commissioners for Departmental Enquiries attached to it.8 These commissioners are appointed from the Indian Administrative Service or the judiciary. When an inquiry is held by an officer other than the decision-maker, the inquiry officer may do either of the following two things after the inquiry: (a)

(b)

He may transmit the entire record of the inquiry as it is, without making any comments or recommendations, to the decision-maker. Thereafter the decision-maker after perusing the record may draw his own conclusions. A major defect in this procedure is that he who actually decides hears nothing and he who hears decides nothing. The other option, and this is which is generally followed, is that the inquiry officer may make a report containing his findings on the basis of the evidence recorded by him and may also make his recommendations as to the punishment to be awarded.9 The record of the inquiry along with the report of the inquiry officer is then sent to the disciplinary authority which may or may not accept his findings.10 It is a well settled proposition that the disciplinary authority is not bound by the findings of the inquiry officer and that, after considering the entire evidence, he may come to his own findings, which may be different from those of the inquiry officer.11 The authority is generally assisted by subordinates in examining the record, though, of course, it is not expected to place blind reliance on their advice. In case of institutional decisions as well, this technique of hearing by a subordinate official is resorted to quite often.

A difficult question arises when hearing is held by one officer, and decision taken by another on the basis of his report: should a copy of the report of the hearing officer be sent to the concerned person, and his comments on the report invited,12 before a decision is arrived at by the decision-maker? Following such a procedure will undoubtedly be in accord with natural justice. But, generally speaking, the judicial response to this process has so far been in the negative. The Courts have by and large taken the view in a number of situations (barring some exceptions) that the non-submission of a copy of the report of the inquiry officer to the affected person does not result in violation of natural justice because he has been given hearing by the inquiry officer and there the matter ends so far as application of natural justice is concerned. A few examples of this judicial approach are as under. In Suresh Koshy George v. University of Kerala, 13 disciplinary proceedings were initiated by the university against a student on a charge of malpractice during the examination. The ultimate deciding authority was the Vice-Chancellor. An enquiry was conducted by a nominee of the Vice-Chancellor. At the inquiry, the student was allowed to cross-examine witnesses and adduce his own evidence. After the inquiry, the Vice-Chancellor issued a show cause notice to the student and ultimately expelled him. The report of the inquiry was neither demanded by the student nor given to him. He later challenged the procedure on the ground of violation of natural justice as a copy of the report was not given to him. The Supreme Court rejected the challenge ruling that where the law provides for a show cause notice, it does not follow that a copy of the report on the basis of which the notice is issued should be made available to the affected person, or another inquiry be held thereafter by the decision-maker himself. The Court also pointed out that the

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appellant never asked for a copy of the report. It may be noted that this judicial approach is at variance with the principle stated earlier that the affected person should be shown all material against him so as to enable him to defend himself effectively.14 How can the student make an effective representation to the decision-maker without having any idea as to what the inquiry report has said against him. The inquiry report is a significant link in the chain of ultimate decision-making process. This view also goes counter to the ruling of the Privy Council in Kanda.15 When the report has been seen by the decision-making authority, and his mind has been conditioned by it, then natural justice demands that the report ought to be shown to the affected person as well. In Koshy, it is quite clear that the Vice-Chancellor was to base his decision largely on the inquiry report.16 In the following case again, the examination result of a candidate was cancelled by the examination committee after an inquiry by an inquiry committee. The candidate challenged the decision on the ground inter alia that a copy of the report of the inquiry committee was not supplied to him. The Allahabad High Court ruled that natural justice did not require that a copy of the inquiry report must have been furnished to the candidate. It was enough that charges were communicated to him and he was given an opportunity to meet them. Again, in Hira Nath Mishra v. Rajendra Medical College, 17 a case involving disciplinary action against a few male students on the charge of molesting some girl students, the Principal of the college (who was the disciplinary authority) constituted an inquiry committee to enquire into the charges. As a result of the enquiry, the students were expelled from the college for a period of two years. The enquiry report was not shown to the students. Upholding the action of the Principal, the Court pointed out that if the report of the committee containing the evidence of the girls had been shown to the students, they would have been in constant fear of molestation by the boys. Therefore, public interest required that the report be not shown to the concerned persons. In the fact-situation here, it may be justifiable not to show the report to the boys concerned but it seems necessary that a gist of the material against them (without revealing the identity of the girls testifying against them) ought to have been communicated to them to enable them to make a representation to the decision-making authority before its taking the decision in the matter. In Shadi Lal Gupta v. State of Punjab, 18 a minor penalty was imposed on a civil servant. Before doing so, the disciplinary authority (deputy secretary to the Government) caused an enquiry to be conducted by a subordinate official, but the inquiry report was not shown to the civil servant concerned. Relying on Surersh Koshy as well as on Arlidge, the Supreme Court upheld the action of the disciplinary authority. The view in this case seems debatable. The Court gave no convincing reasons as to why the report could not be shown to the appellant. Much of the judicial thinking in India on this point has really been influenced by the Arlidge pronouncement.19 A somewhat different approach is depicted by Kesava Mills Co. Ltd. v. U.O.I. .20 A textile mill closed down in 1968. The Government of India appointed an investigating committee to investigate into the affairs of the mill under S. 15 of the Industries (Development and Regulation) Act, 1951. The committee submitted its report to the government after giving a reasonable opportunity of hearing to the company concerned, but the report was not shown to the management. As a result of the inquiry report, the management of the mill was taken over by the government under S. 18of the Act. The company challenged the order contending that the government not only should have supplied a copy of the report to it, but should also have given a hearing to the mill before finally deciding upon its take-over. Rejecting the argument, the Supreme Court stated that it was not ready to lay down an inflexible rule that the report of the inquiry was not necessary to be disclosed to the party concerned. "Whether the report should be furnished or not must ... depend in every individual case on the merits of that case." There may be certain cases where unless the report is given, the concerned party may not be able to make an effective representation against the proposed governmental action. If its non-disclosure causes any prejudice in any manner to the person concerned, the inquiry report must be disclosed, otherwise non-disclosure would not amount to a violation of the principles of natural justice. In the instant case, however, the Court felt satisfied that the non-disclosure of the committee's report caused no prejudice whatsoever to the company as the management had been given sufficient opportunity to present its case before the investigation committee and the government against the take-over of the mill. Again, in Minerva Mills Ltd. v. U.O.I., 21 the petitioner's textile undertaking was closed in January, 1970 and its affairs were investigated by the Central Government under S. 15of the above-mentioned Act, on the ground that it was being managed in a manner highly detrimental to public interest. The management of the undertaking was taken over by the Central Government, and later the undertaking was nationalised. The petitioner company then challenged the take-over order inter alia on the ground that the principles of natural justice had been violated since a copy of the investigation report was not supplied to it before passing the impugned order. Rejecting the contention, the Court said that the petitioner was given a hearing by the investigation committee and that the company got ample opportunity to make representation against the proposed action.

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Relying on Kesava Mills, the Court ruled that the petitioner was not in the least prejudiced, and the rules of natural justice had not been violated, by the non-supply of a copy of the report to him. Moreover, the petitioner never asked for a copy of the report from the government.22 Under a Coal Mines Regulation, the regional inspector is authorised to suspend the certificate of a short-firer if, in his opinion, he is incompetent or guilty of negligence in the discharge of his duties. Before suspending the certificate, the inspector has to give him an opportunity to give a written explanation. The inspector then reports the matter to the Board of Mining with all connected papers. After holding such inquiry as the board thinks fit, the board may confirm, modify or reduce the period of suspension of the certificate, or cancel the same. In Board of Mining Examination, v. Ramjee, 23 the inspector underwent all the prescribed procedural formalities (including giving of an opportunity of explanation to the shortfirer concerned) while enquiring into a mine accident and suspended the certificate of the short-firer because of his negligence, and recommended to the board to cancel his certificate. The board cancelled his licence without formally calling upon the short-firer to make his defence against the proposed cancellation of his licence and without sending him a copy of the inspector's report. The shortfirer of his own accord filed an explanation with the board which the board considered. Three main questions were raised before the Supreme Court: Had the board heard the short-firer before cancelling his licence? Should the board have sent a copy of the inspector's report to him ? Could the inspector make a recommendation to the board to cancel his license ? The Supreme Court ruled that the respondent had sent to the board's chairman an explanation (called an appeal) against the inspector's report, and he had thus been heard by the board. On the second question, the Court said that "it is desirable also to communicate the report of the inquiry officer, including that part which relates to the recommendation on the matter of punishment, so that the representation of the delinquent may be pointed and meaningful." In spite of this statement, the fact remains that this norm was not applied in the instant case. The word "desirable" in this statement appears to be of a directory nature. On the third question, the Court observed:24 "If the authority which takes the final decision acts mechanically and without applying its own mind, the order may be bad, but if the decision-making body, after fair and independent consideration, reaches a conclusion which tallies with the recommendations of the subordinate authority which held the preliminary enquiry, there is no error in law... Where there is no surrender of judgment by the Board to the recommending Regional Inspector, there is no contravention of the canons of natural justice."

Thus, in the Court's view, the recommendations made by the inquiry officer are not binding but are merely raw material for consideration of the higher authority which applies its own mind and comes to a decision. The Court's ruling on question one, mentioned above, is very debatable. The short-firer filed his explanation with the board suo motu without the board calling upon him to do so. This ruling appears to be inconsistent with the CATA ruling.25 The short-firer did not know what the contents of the inspector's report were and the board gave no notice to the short-firer calling upon him to file his representation against the action proposed to be taken against him. He filed a statement of his own accord.26 Thus, there could be no meaningful hearing in these circumstances. The better procedure would have been for the board to serve a show cause notice to him based on the inspector's report. The whole procedure was short-circuited by the Court, the justification for this approach being that the job of the short-firer was a hazardous one on which depended the life of the mine-workers. But this did not justify any undue dilution of the rigours of natural justice in the instant case. There was power to suspend his licence and, thus, the short-firer was already immobilised pending a final decision. Such a step, viz., suspension of his license, had already been taken. The decision to cancel his licence ought to have been taken only after the Board giving him an adequate opportunity to defend himself as the consequences of such a decision were very serious to him. The phraseology of the statutory provision itself envisaged an enquiry by the board itself independently of the inquiry by the inspector. There is public interest not only in justice being done but also seen to be done. After suspension of the licence there was no emergency to take an immediate action and dilute the rigours of natural justice unduly in the process.27 The question being considered here has been raised quite often in cases where a major punishment, viz., removal, dismissal or reduction in rank, is inflicted on a government servant. Here Art. 311(2) of the Constitution comes into play which requires a reasonable opportunity of being heard being given to the

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servant concerned when any such punishment is sought to be imposed. The procedure adopted in such cases, as noted above, is to hold an enquiry before an enquiry officer where the servant concerned gets a full opportunity to defend himself. The enquiry officer then appreciates the evidence, records his conclusions and submits his report. Then the disciplinary authority takes over. Before the Constitution (Forty-second Amendment) Act, 1976, the disciplinary authority would send a copy of the enquiry report to the concerned servant and invite his comments thereon before deciding upon the actual punishment to be imposed. This was known as the second stage of inquiry. The punishing authority was not bound by the findings of the inquiry officer. This point was clarified by the Supreme Court in U.O.I. v. H. C. Goel .28 In this case, the inquiry officer found that the employee was not guilty of the charge of making an offer of bribe to the superior officer. The Union Public Service Commission also endorsed this conclusion. But, the disciplinary authority rejected the report, found the officer guilty, and punished him. This action was challenged. Clarifying the relation between the inquiry officer and the government as the punishment authority in the matter, the Supreme Court observed:29 "... the enquiry officer held the enquiry against the respondent as a delegate of the appellant. That indeed is the character which the inquiry officer inevitably occupies when he holds a departmental enquiry at the instance of the government. The object of the enquiry is plain. It is to enable the Government to hold an investigation into the charges framed against a delinquent public servant, so that the Government can, in due course, consider the evidence adduced and decide whether the said charges are proved or not. The interposition of the enquiry which is held by a duly appointed enquiry officer does not alter the true legal position that the charges are framed by the Government and it is the Government which is empowered to impose punishment on the delinquent public servant."

Therefore, the findings by the enquiry officer constitute appropriate material for the consideration of the disciplinary authority. The findings or the recommendations of the inquiry officer are not binding on the disciplinary authority. However, the Court did not specifically rule that the non-supply of a copy of the inquiry report to the concerned employee would be a violation of natural justice or of Art. 311(2). In 1976, Art. 311(2) was amended abolishing the second notice as regards the quantum of punishment to be imposed on the servant concerned.30 In this connection, the question had been raised whether or not, as a matter of natural justice, the enquiry report should be shown to the servant concerned, and his comments invited, before deciding upon the punishment, even after 1976. The judicial response to this question was invariably in the negative on the ground that the second opportunity had been formally abolished. In a number of cases, the Supreme Court ruled that after the 42nd Amendment the report of the enquiry officer need not be given to the servant concerned, otherwise, it would amount to giving him a second opportunity which had been abolished by the 42nd Constitutional Amendment.31 In Secretary, Central Board of Excise and Customs v. K.S. Mahalingam, 32 the enquiry report was supplied to the respondent employee after his dismissal from service. On the basis of that report he preferred an appeal against his dismissal to the Chief Vigilance Officer, Central Board of Excise and Customs. The Court ruled that it was enough compliance with the requirements of natural justice as applicable under Art. 311(2). Since the respondent was not entitled to a second opportunity of hearing, non-supply of the report before the passing of the impugned dismissal order did not violate the rules of natural justice. There seems to be no convincing reason as to why a delinquent civil servant ought not to be given an opportunity to contradict the findings of the enquiry officer if adverse to him. The amendment of Art. 311.(2) excludes the second opportunity of hearing only with regard to the quantum of punishment. The question of deciding whether he is guilty or not of the charges levied against him is still an open one. Even if the enquiry officer holds him guilty, the disciplinary authority can still come to a different conclusion because, as noted above, the findings and recommendations of enquiry officer are not ipso facto binding on the disciplinary authority. It has yet to come to his own conclusions. At this stage, therefore, comments by the concerned servant may help him to come to a right decision. In November, 1987, the Central Administrative Tribunal held that the failure to supply the inquiry report to the employee before the disciplinary authority takes a final decision would violate Art. 311(2) and also the princples of natural justice.33 The Union of India filed a special leave appeal to the Supreme Court from this decision. In U.O.I. v. E. Bashyam, 34 M.P. THAKKAR, J. argued powerfully in favour of disclosure of the report of the

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hearing officer in a disciplinary proceeding to the concerned government servant. He pointed out that the report is merely fact finding and recommendatory. The disciplinary authority builds his final conclusion on the basis of his own assessment of evidence taking into account the reasoning articulated in the enquiry officer's report and the recommendations made therein. THAKKAR, J., then observed: If the report is not made available to the delinquent, this crucial material which enters into the consideration of the Disciplinary Authority never comes to be known to the delinquent and lie gets no opportunity whatsoever to have a say in regard to this crucial material at any point of time till the disciplinary Authority holds him guilty or condemns him. Such would be the consequence even if the Enquiry Officer has found him to be blameless and recommended his exoneration in case the Disciplinary Authority has disagreed with the Enquiry Report.

He further said: There can be glaring errors and omissions in the report. Or it may have been based on no evidence or rendered in disregard of or by overlooking evidence. Even so, the delinquent will have no opportunity to point out to the Disciplinary Authority about such errors and omissions and disabuse the mind of the Disciplinary Authority before the axe falls on him and he is punished.

Commenting on this situation, THAKKAR, J., said: It appears to us to be a startling proposition to advance that the only authority which really and actually holds him guilty need not afford any opportunity to the person against whom such finding of guilt is recorded and the material on which he acts.

According to THAKKAR, J., the supply of the report could not amount to a second opportunity of hearing. In his own words: "It needs to be highlighted that serving a copy of the enquiry report on the delinquent to enable him to point out anomalies, if any, therein before the axe falls and before finding about guilt is recorded by the Disciplinary Authority is altogether a different matter from serving a second show cause notice to enable the delinquent [to represent] in the context of the measure of the penalty to he imposed."

But since the question was of mega importance, he referred the same for the consideration by a larger Bench. THAKKAR, J.'s was a very well argued opinion in favour of disclosure of the inquiry report to the concerned government servant. There seemed to be a lacuna in procedural fairness to government servants in the matter of disciplinary proceedings against them. In U.O.I. v. Mohd. Ramzan Khan, 35 a three judge Bench ruled that a copy of the inquiry report, along with recommendations, if any, should be given to the concerned officer as a matter of natural justice. But, again, another bench of the Supreme Court referred the same question to a larger bench for consideration.36 Disposing of this reference, the Supreme Court has now laid down the following proposition: "Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the inquiry officer is not the disciplinary authority, the delinquent employee will have the right to receive the inquiry officer's report notwithstanding the nature of punishment."

The above proposition is not confined to disciplinary action contemplated by Art. 311(2) which provides for imposition of the punishment of removal, dismissal or reduction in rank. The service rules may provide for imposition of other punishments. Further, Art. 311(2) is confined to civil servants under the Union or a State, but there are other employees governed by their service rules. Accordingly, the Court has ruled: "When the inquiry officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."

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The Court has argued in support of the above proposition that the inquiry officer's findings constitute an important material for the disciplinary authority to reach his own decision as to the guilt or innocence of the concerned delinquent employee. The inquiry officer may have come to his findings without considering the relevant evidence on record, or by misconstruing it, or unsupported by it. Such findings are an additional material unknown to the employee which the disciplinary authority takes into consideration to arrive at its conclusions. Accordingly, both the dictates of reasonable opportunity as well as the principles of natural justice require that the delinquent employee has an opportunity to comment on the inquiry officer's findings before the disciplinary authority takes them into consideration to, reach its own conclusions. The disciplinary authority will then consider the evidence, the inquiry officer's report and the employee's representation against it.37 The Supreme Court has laid down the following propositions as well: (a) (b) (c)

Whether the employee asks for a copy of inquiry report or not, it has to be furnished to him. Since the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is "an integral part of the opportunity of defence against the charges," it is "a breach of principles of natural justice to deny the said right." The rule stated above shall apply "to employees in all establishments whether Government or non-Government, public or private." This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject."

As to the opportunity of hearing to be given by the disciplinary authority to the delinquent employee after taking into consideration the report of the enquiry officer, the Supreme Court, in Punjab National Bank v. Kunj Behari Misra, 38 observed as under: Under Regulation 6 of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case.39

The Apex Court further observed:40 The principles of the natural justice have to be read into Regulation 7(2) of the Punjab National Bank Officer Employees' (Discipline and Appeal) Regulations, 1977. As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

In Yoginath D. Bagde v. State of Maharashtra 41 also the Supreme Court made similar observations as under: In view of the provisions contained in the statutory Rule 9of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, it is open to the disciplinary authority either to agree with the findings recorded by the enquiring authority or disagree with those findings. If it does not agree with the findings of the enquiring authority, it may record its own findings. Where the enquiring authority has found the delinquent officer guilty of the charges framed against him and the disciplinary authority agrees with those findings, there would arise no difficulty. So also, if the enquiring authority

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has held that charges proved, but the disciplinary authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the enquiring authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the disciplinary authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage. Such an opportunity may either be provided specifically by the rules made under Article 309of the Constitution or the disciplinary authority may, of its own, provide such an opportunity. Where the rules are in this regard silent and the disciplinary authority also does not give an opportunity of hearing to the delinquent officer and records findings different from those of the enquiring authority that the charges were established. "an opportunity of hearing" may have to be read into the rule by which the procedure for dealing with the enquiring authority's report is provided principally because it would be contrary to the principles of natural justice if a delinquent officer, who has already been held to be "not guilty" by the enquiring authority, is found "guilty" without being afforded an opportunity of hearing on the basis of the same evidence and material on which a finding of "not guilty" has already been recorded.

As to the opportunity of hearing to be provided to the delinquent employee under Rules 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, the Apex Court further observed:42 The only requirement (under Rule 9(2)) is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2)and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the "TENTATIVE" reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of "not guilty" already recorded by the enquiring authority was not liable to be interfered with.

A three-Judge Bench of the Supreme Court in Punjab National Bank v. Kunj Behari Misra, 43 relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit, 44 Institute of Chartered Accountants of India v. L.K. Ratna 45 as also the Constitution Bench decision in Managing Director, ECIL v. B. Karunakar 46 and the decision in Ram Kishan v. Union of India 47 has held that: "It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority."

It was further observed:48 In view of the above, a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levelled against him but also at the stage at which those findings are considered by the disciplinary authority and the latter, namely, the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority has proposed to disagree with the findings of the enquiry officer. This is in consonance with the requirement of Article 311(2)of the Constitution as it provides that a person shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. So long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about the closure of the enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found to be proved and in that event punishment is inflicted upon the delinquent. That being so, the "right to be heard" would be available to the delinquent up to the final stage. This right being a constitutional right of the

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employee cannot be taken away by any legislative enactment or service rule including rules made under Article 309of the Constitution.

Consequently, the Apex Court held that, since the Disciplinary Committee did not give any opportunity of hearing to the employee before taking a final decision in the matter relating to the findings on the charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of the Supreme Court in Punjab National Bank v. Kunj Behari Misra 49 referred to above, were violated. Further, the post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the instant case.50 There is also the Ratna case51 to which reference has already been made earlier. The Supreme Court insisted therein upon the disclosure of the report of the disciplinary committee to the accused chartered accountant before the Council of the Institute took a decision on it. The Court also insisted on hearing by the Council also after the disciplinary committee had already heard him. Reference may be made in this connection to the position in the U.S.A. in this area. There is a clear provision in the Administrative Procedure Act, as noted earlier,52 that a hearing officer shall first make an initial or recommended decision which ought to be available to the parties concerned before the final decision, and an opportunity given to the parties to make representations against the proposed decision of the hearing officer. The department can then decide on the basis of the record. As Schwartz points out, it is a common practice in the U.S.A. that the report prepared by the hearing officer is submitted to the parties concerned. "For an agency decision to be based upon a secret report, by an examiner or some other officer, would be for if to violate the right of the private party to his decision based only upon materials which he knows about and is given an opportunity to meet".53 In England, the Franks Committee recommended that "the right course is to publish the inspector's report" and that copy of the same be given to the parties for the purpose of proposing corrections of facts stated in the report to the inspector.54 It may be worthwhile to recall Arlidge.55 There, the report of the inspector holding the local public inquiry was not disclosed to the affected person. The department took the report into consideration and decided against him. He claimed that the inspector's report should have been shown to him and he ought to have been given an opportunity to support or rebut the conclusions reached by the inspector for the consideration of the decision-maker. The House of Lords however held that the report need not be shown to the respondent and that the final decision based on the report did not infringe natural justice. The House thought that the board was not bound to disclose the report any more than it would have been bound to disclose all the minutes made on the papers in the office before a decision was come to. In England, this has been a debatable point for long. It has been argued, on the one hand, that the non-disclosure of the inquiry report was unfair to the affected person and that fairness demanded that the report should be shown to him and his comments thereon invited. On the other hand, disclosure of the report has been opposed on the ground that it will militate against the principle of anonymity of the civil service and that the inspector would not be able to give his frank opinion if his report were to be divulged. The Arlidge ruling made a concession to the anonymity principle. As seen above, the Franks Committee did not agree with such an approach and voted in favour of the disclosure of the report subject to certain safeguards. The Government did not however agree with this recommendation of the Franks Committee. But, since then, it has become a standard practice for a copy of the report to be sent along with the letter of the decision. Thus, the affected person is not given an opportunity to comment on the report before a final decision is reached. The principle of natural justice has not yet triumphed fully over bureaucratic resistance. There is no doubt that non-disclosure of the report amounts to deciding a matter without fully revealing all the material to the affected party. The rule ought to be that, barring some rare exceptional situations, the enquiry report should, as a rule, be shown to the affected party so that he could make effective submissions to the adjudicating authority. The report constitutes an important link in the decisional process in the matter. The judicial view in India was too much coloured by what the House of Lords observed in Arlidge. This approach also compromised the principle of open government discussed later.56 The scholarly sentiments have always been in favour of showing such reports to the persons concerned. For example commenting on Arlidge, Wade observes that the House of Lords:57

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"missed an important opportunity in setting their faces against the disclosure of the inspector's report. It took over forty years for this mistake to be corrected, when it finally came to be understood that the supposed analogy between the report and any other departmental papers was misconceived and in the meantime there was much public dissatisfaction at this unfairness in the inquiry proceeding."

Now, the Supreme Court has definitively ruled that in the service area, where the inquiry and deciding functions are separately discharged by different officers in the matter of taking disciplinary action against an employee, the concerned employee must be given a copy of the inquiry report so that he may be able to comment on it before the disciplinary authority finally decides the matter of his guilt or innocence. The Court has treated this as a requirement of natural justice. It is suggested that the same principle should be applied to other areas of administrative adjudication as well wherever the hearing and deciding functions are separated and discharged by different authorities. There seems to be no valid reason to distinguish between service and other areas as valuable rights may be in jeopardy and the right to receive a copy of the inquiry report is a part and parcel of natural justice. Whatever logic applies to supplying the inquiry report to the concerned employee, the same logic ought to apply to supplying the report of the hearing officer to the concerned person in other areas as well because the consequences of adjudication may be no less serious. There seems to be no valid reason to regard the service area as being different from any other area of adjudication from this point of view.

4 See under heading: 'One who Decides must Hear', supra, this chapter. 5 See, Pradyat K Bose v. Chief Justice of Calcutta, AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]: 1956 SCJ 259; JAIN, Cases, 797. 6 Indian Law Institute, Disciplinary Proceedings against Government Servants--A Case Study, (1962). 7 Indian Law Institute, Disciplinary Proceedings against Government Servants--A case study, (1962), at 80. 8 See, infra. 9 Indian Law Institute, Disciplinary Proceedings against Government Servants--A case study, (1962), at 83. 10 Indian Law Institute, Disciplinary Proceedings against Government Servants--A case study (1962), at 93. 11 Krishna Chandra v. U.O.I., AIR 1974 SC 1589: (1974) 4 SCC 374. Also, U.O.I. v. Goel, AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208]: (1964) 9 FLR 161: 1964 (1) LLJ 38 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208]. 12 This point has been referred to earlier as well in the context of preliminary inquiry reports. See under sub-heading: 'Disclosure of the Preliminary Inquiry Report', under heading 'Disclosure of Materials to the Party', supra, this chapter. 13 AIR 1969 SC 198 [LNIND 1968 SC 161] [LNIND 1968 SC 161] [LNIND 1968 SC 161]: 1969 (1) SCR 317. Also see, Satwant Singh v. Board of H.S. & I.E., AIR 1974 All 273. 14 See under heading: 'Disclosure of Materials to the Party', supra, this chapter. 15 B. Surinder Singh Kanda v. Govt. of Malaya, (1962) MLJ 169. 16 Satwant Singh v. Board of High School and Inter Ed., AIR 1974 All 273. 17 AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]: (1973) 1 SCC 805: 1973 (2) LLJ 111 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]; JAIN, Cases, 695. 18 AIR 1973 SC 1124 [LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64]: (1973) 1 SCC 680: 1973 (1) LLJ 435 [LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64]. 19 Local Government Board v. Arlidge, (1915) AC 120. 20 AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]: (1973) 1 SCC 380; JAIN, Cases, Chapter IX, Sec. I, 807. 21 AIR 1986 SC 2030 [LNIND 1986 SC 307] [LNIND 1986 SC 307] [LNIND 1986 SC 307]: (1986) 4 SCC 222: (1987) 61 Comp Cas 406; JAIN, Cases, 816.

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22 See, N.S. NAHAR, Investigation into the Affairs of Companies under the Companies Act, 1965, (1974) 16 JILI 415. 23 AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]: (1977) 2 SCC 256; JAIN, Cases, Chapter IX, Sec. I, 826. 24 Board of Mining Examination v. Ramjee, AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]: (1977) 2 SCC 256, 969-70. 25 CATA Sales Co-operative Society v. A.P. Government, AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275]: (1977) 4 SCC 337. 26 On the question of notice, see under sub-heading: 'Disciplinary proceeding against public employees' under heading 'Reasoned Decisions', supra, this chapter. 27 Also see, Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79]: (1984) 3 SCC 258; Bishnu Ram Borat. v. Parag Saikia, 1984 SC 898: (1984) 2 SCC 488 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC 337]. 28 AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208]: 1964 (1) LLJ 38: (1964) 9 FLR 161. 29 Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764. 30 JAIN, Indian Constitutional Law, 789, 922-23 (1987). 31 Kailash Chander v. State of U.P., AIR 1988 SC 1338 [LNIND 1988 SC 284] [LNIND 1988 SC 284] [LNIND 1988 SC 284]: 1988 (2) LLJ 219: (1988) 3 SCC 600 [LNIND 1988 SC 284] [LNIND 1988 SC 284] [LNIND 1988 SC 284]. 32 AIR 1987 SC 1919 [LNIND 1986 SC 141] [LNIND 1986 SC 141] [LNIND 1986 SC 141]: (1986) 3 SCC 35: 1986 (2) LLJ 434 [LNIND 1986 SC 141] [LNIND 1986 SC 141] [LNIND 1986 SC 141]. 33 Premanath K Sharma v. U.O.I., (1988) 6 ATC 904. See, MASSEY, Supply of Report to an Employee Facing Inquiry, 30 JILI 94 (I988). For Central Administrative Tribunal, see, infra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. W. 34 AIR 1988 SC 1000 [LNIND 1988 SC 617] [LNIND 1988 SC 617] [LNIND 1988 SC 617]: (1988) 2 SCC 196: 1988 (2) LLJ 249 [LNIND 1988 SC 168] [LNIND 1988 SC 168] [LNIND 1988 SC 168]; JAIN, Cases, Chapter IX, See. I, 802. 35 AIR 1991 SC 474: (1991) 1 SCC 588: 1991 (1) LLJ 29 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990 SC 726]; JAIN, Cases, Chapter IX, See. I, 803. 36 Managing Director, Electronic Corp. of India v. Karunakar, (1992) 1 SCC 709: (1992) 65 FLR 185: JT 1992 (3) SC 605. See also N.T.C. (WBAB & O) Ltd. v. Anjan K. Saha, AIR 2004 SC 4255: (2004) 7 SCC 581. 37 Managing Director, ERIE v. B. Karunakar, AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], 1080: (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1994 (1) LLJ 162 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]. 38 (1998) 7 SCC 84 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778], 96 (para 18): AIR 1998 SC 2713 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778], followed in SBI v. Arvind K. Shukla, (2004) 13 SCC 797, 798-99 (para 2). 39 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]. 40 Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778], 97 (para 19): AIR 1998 SC 2713 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778], following Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]; State of Assam v. Bimal Kumar Pandit, AIR 1963 SC 1612 [LNIND 1963 SC 38] [LNIND 1963 SC 38] [LNIND 1963 SC 38]: (1964) 2 SCR 1; relying on Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]; Ram Kishan v. Union of India, (1995) 6 SCC 157 [LNIND 1995 SC 858] [LNIND 1995 SC 858] [LNIND 1995 SC 858]: AIR 1996 SC 255 [LNIND 1995 SC 858] [LNIND 1995 SC 858] [LNIND 1995 SC 858]and overruling State Bank of India v. S.S. Koshal, 1994 Supp (2) SCC 468; State of Rajasthan v. M.C. Saxena, (1998) 3 SCC 385 [LNIND 1998 SC 1125] [LNIND 1998 SC 1125] [LNIND 1998 SC 1125]: AIR 1998 SC 1150 [LNIND 1998 SC 1125] [LNIND 1998 SC 1125] [LNIND 1998 SC 1125]; Mahendra Kumar v. Union of India, (1983) 3 SLR 319 (AP). See also SBI v. Arbind K. Shukla, (2004) 13 SCC 797, 798-99 (para 2). 41 (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], 757-58 (para 28): AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]. 42 Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], 758 (para 29).

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43 ((1998) 7 SCC 84 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778], 96 (para 17): AIR 1998 SC 2713 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778]. 44 AIR 1963 SC 1612 [LNIND 1963 SC 38] [LNIND 1963 SC 38] [LNIND 1963 SC 38]: (1964) 2 SCR 1. 45 (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 1 ATC 714: AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]. 46 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: (1993) 25 ATC 704: AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]. 47 (1995) 6 SCC 157 [LNIND 1995 SC 858] [LNIND 1995 SC 858] [LNIND 1995 SC 858]: (1995) 31 ATC 475: AIR 1996 SC 255 [LNIND 1995 SC 858] [LNIND 1995 SC 858] [LNIND 1995 SC 858]. See also Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], 759 (para 30): AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]. 48 Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], 760 (para 31): AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]. 49 (1998) 7 SCC 84 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778]: AIR 1998 SC 2713 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC 778]. 50 Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], 762 (para 35): AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]. 51 Institute of Chartered Accountants of India v. L.K Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 4 SCC 537; JAIN, Cases, Chapter IX, Sec, H, 786; Also see, infra, next Chapter. 52 See under heading: 'Institutional Decisions', supra this chapter. 53 SCHWARTZ, An Introduction to American Adm. Law, 156 (1962). 54 Report, 73-74. For extracts from this report, see JAIN, Cases, Chapter XII, Sec. B . Also see M.P. JAIN, Administrative Law, IX A.S.I.L. 262-66 (1973); S.N. JAIN, The One Who Decides Must Hear, 16, J.I.L.I., 374 (1974). 55 Local Government Board v. Arlidge, (1915) AC 120. 56 infra, Vol. II. 57 WADE, Administrative Law, 508 (1988).

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XI RULE AGAINST BIAS

CHAPTER XI RULE AGAINST BIAS 1. INTRODUCTORY Hitherto, we have been discussing the 'hearing' procedure. This Chapter turns to the other component of natural justice, viz., Rule against bias. The law regarding bias is almost entirely of common law origin. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The Judicial process itself embraces a fair and reasonable opportunity to defend though, the same is dependent upon the facts and circumstances of each individual case. The facts in the instant case are singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste.1

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The Apex Court, in Sayeedur Rehman v. State of Bihar,2 observed: "The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated 22-4-1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties."

Incidentally, Hidayatullah, C.J. in Channabasappa Basappa Happali v. State of Mysore,3 recorded the need of compliance with certain requirements in a departmental enquiry -- at an enquiry facts have to be proved and the person proceeded against must have an opportunity to cross-examine witnesses and to give his own version or explanation about the evidence on which he is charged and to lead his defence -- on this state of law. The word "bias" in popular English parlance stands included within the attributes and broader purview of the word "malice" which in common acceptation means and implies "spite" or "ill-will" and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record to come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice.4 "Malice" in its legal sense means malice such as may he assumed for a wrongful act done intentionally but without cause or excuse or for one of reasonable or probable cause. The term "malice on fact" would come within the purview of the said definition. Even, however, in the absence of any malicious intention, the principle of malice in law can be invokded.5 Bias is included within the attributes and broader purview of the word "malice." Therefore, the relevancy of factual details is otherwise felt to assess the situation as to whether there is existing cogent evidence of improper conduct and motive resultantly a mala fide move on the part of the Government against the officer.6 A Company applied to Howrah Municipal Corporation for sanction for construction of its complex upto seven floors which was not granted within the prescribed limit. In compliance with the direction of the High Court, the Corporation granted sanction upto fourth floor. After completing construction upto which, the Company applied for sanction for construction upto seventh floor. The Corporation sent replies and sought documents and additional information from the Company and insisted on the Company to submit fresh application for sanction with plans of three additional floors which was held to be not malicious.7 The doctrine that "no man can be a judge in his own cause" can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine "no man can be a judge in his own cause". Of course, in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular corporation are named as the authority does not mean that those officers would be biased.8 The presumption of bias is not legally available. The question of prejudice or bias has to be established and not inferred.9 Without any reliable material, bias cannot be inferred or arrived at by conjecture.10 The allegation of bias must be genuine and there must be sufficient material in support thereof.11 Mere acceptance of tea and refreshments by the arbitrator and holding of the hearing in the premises of a party in the presence of the other party who did not raise any objection, would not be a sufficient ground.12 It is now a well-settled principle of law that bias which would mean and imply "spite or ill will" must be proved by raising requisite plea in this behalf and by adducing cogent and sufficient evidence in support thereof. In fact, bias is a state of mind and it shows predisposition. Thus, general statements would not meet the requirements of law. Certain correspondence/orders which might have been passed against the petitioner as far back as in 1994 and 1998 would not meet the requirement of law to prove bias. Not only existence of a factual bias has to be proved, but it must also be shown that the same has resulted in miscarriage of justice.13 In a case of punishment of compulsory retirement, it was held that bias would have to be established either by evidence or on the material on record which were relied upon by the Enquiring Officer in coming to his conclusion as to the guilt of the delinquent employee.14 In a departmental inquiry, the charges were framed by the High Court and communicated to the Enquiry Officer. In the report, he merely posed questions that arose for decision, in a manner different from the wording used in the charges. The Apex Court observed that it is a way of expression in considering the issue. However, it is not a sign to show that the Enquiry Officer was biased or that he was prejudiced against the employee. Besides, the allegation of bias was not made against the Enquiry Officer at the inception of the enquiry and the same came to be made for the first time in reply to the show-cause notice issued by the High Court. It was, therefore, held to be an afterthought to get over the

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report of the Enquiry Officer.15 Where the delinquent officer had admitted that the complainant was not biased and the disciplinary authority had acted on the basis of his complaint. It was held that allegation of bias against the disciplinary authority was not maintainable.16 It is the party, who makes any allegation of bias or favouritism, that is required to prove the same. In the instant case, no allegation of bias was made.17 Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.18 "Bias" in common English parlance means and implies -- predisposition or prejudice. (para 26) Its concept however has had a steady refinement with the changing structure of the society: modernisation of society, with the passage of time, has its due impact on the concept of bias as well. (para 27)19 Bias, is a condition of mind and, therefore, it may not always be possible to furnish actual proof of bias. But the Courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of "real likelihood of bias" or "reasonable suspicion of bias".20 The Supreme Court in S. Parthasarathi v. State of A.P.,21 proceeded on the footing of real likelihood of "bias" and there was in fact a total unanimity on this score between the English and the Indian Courts. Mathew, J. observed: 16. The tests of 'real likelihood' and 'reasonable suspicion' are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that Justice must not only be done but seen to be done. If right-minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision [see per Lord DENNING, M.R. in Metropolitan Properties Co (F.G.C.)Ltd. v. Lannon,22 [WLR at p. 707]. We should not, however, be understood to deny that the Court might with greater propriety apply the 'reasonable suspicion' test in criminal or in proceedings analogous to criminal proceedings."

Lord Thankerton however in Franklin v. Minister of Town and Country Planning,23 had this to state: "...I could wish that the use of the word 'bias' should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed Justice which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute."

However, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of R. v. Bow Street Metropolitan /Stipendiary Magistrate, exp Pinochet Ugarte (No. 2)24 observed: "...In civil litigation the matters in issue will normally have an economic impact; therefore a Judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a Judge applies just as much if the Judge's decision will lead to the promotion of a cause in which the Judge is involved together with one of the parties."

Lord Brown-Wilkinson at p. 136 of the report25 stated: "It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25-11-1998 would lead to a position where Judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a Judge would be disqualified. That is not correct. The facts of this present case are exceptional. The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the Judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'s objects. Only in cases where a Judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a Judge normally be concerned either to rescue himself or disclose the position to the parties. However, there may well be other exceptional

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cases in which the Judge would be well advised to disclose a possible interest."

Lord Hutton also in Pinochet case26 observed: "There could be cases where the interest of the Judge in the subject-matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation."

Incidentally in Locabail[Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.]27 the Court of Appeal upon a detail analysis of the oft-cited decision in R. v. Gough,28 together with the Dimes case,29Pinochet case,30 Australian High Court's decision in the case of J.R.L., ex p. C.J.L., Re.,31 as also the Federal Court in Ebner, Re,32 and on the decision of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union,33 stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed:34 "By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the Judge and any member of the public involved in the case; or if the Judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the Judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the Judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly35); or if, for any other reason, there were real ground for doubting the ability of the Judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a Judge, earlier in the same case or in a previous case, had commented adversely on a party-witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."

The Court of Appeal judgment in Locabail,36 though apparently sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case -- a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collected and necessary conclusion drawn therefrom -- in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular Court, Tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that the Supreme Court recorded37 its concurrence with the view expressed by the Court of Appeal in Locabail case.38 It is in the same vein the Supreme Court termed it as reasonable likelihood of bias in Rattan Lal Sharma case (Rattan Lal Sharma v. Managing Committee Dr. Hari Ram (Co-Education) Higher Secondary School,39 wherein the Court observed that the test is real likelihood of bias even if such bias was, in fact, the direct cause. In this case real likelihood of bias has been attributed a meaning to the effect that there must be at least a substantial possibility of bias in order to render an administrative action invalid. This case, thus, in fact, has not expressed any opinion which runs counter to that in Girja Shankar case40 which actually follows the earlier judgment in Rattan Lal case41 even though not specifically noticed therein. "The various tests of bias thus range along a spectrum. At the one end a Court will require that, before a decision is invalidated, bias must be shown to have been present. At the other end of the spectrum, the Court will strike at the decision where a reasonable person would have a reasonable suspicion from the

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circumstances of the case that bias might have infected the decision. In between these extremes is the 'probability of bias' (this being closer to the 'actual bias' test), and the 'possibility of bias' (this test being closer to that of reasonable suspicion)."42 Under Section 132 of the Income-tax Act, 1961 the authorities are empowered to appoint the assessing officer as an authorised officer for gathering information for the purposes of assessment, the mode of which might vary from the mere issuance of a notice to the more intrusive method of entry and search. It was contended that the assessing officer might be biased in doing so. The Supreme Court observed that ultimately, the question of bias will have to be decided on the facts of each case. If the assessee is able to establish that the assessing officer was in fact biased in the sense that he was involved or interested in his personal capacity in the outcome of the assessment or the procedure for assessment, no doubt, it would be a good ground for setting aside the assessment order. But to hold, as the High Court has that bias is established only because the authorised officer under Section 132 and the assessing officer are the same person is an incorrect approach.43 Even though it could be said that in a sense since the assessing officer was acting on behalf of the Revenue, in discharging the functions as an assessing officer, he was a party to the dispute, nevertheless there is no presumption of bias in such a situation.44 As said in H.C. Narayanappa v. State of Mysore:45 "It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government."

The Supreme Court further observed that there is nothing inherently unconstitutional in permitting the assessing officer to gather the information and to assess the value of the information himself.46 The issue as to the constitutional validity of a provision which permitted an examining board not only to hold an inquiry but also to take action against doctors was raised before the Supreme Court of the United States in Harold Withrow v. Duane Larkin.47 In negating the challenge the Court said: "The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individual poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented."

It is true that there may be cases where the outcome of the assessment may be influenced by the fact that the raiding assessing officer had himself in the course of the raid been witness to any incriminating material against the assessee. The assessing officer's decision on the basis of such material is not the final word in the matter. The assessment order is appealable under the provisions of the statute itself and ultimately by way of judicial review. Finally, the courts cannot read in limitations to the jurisdiction conferred by statutes, in the absence of a challenge to the provision itself when the language of the Act clearly allows for an ostensible violation of the principles of natural justice including the principle that a person cannot be a judge in his own cause.48 In Union of India v. Tulsiram Patel,49 in recognition of this principle this Court held: "101. Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded. There are well-defined exceptions to the nemo judex in causa sua rule as also to the audi alteram partem rule. The nemo judex in causa sua rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra & Co. v. State of Orissa."50

The maxim nemo judex in re sua literally means that a man should not be a judge in his own cause. The maxim has come to mean that the deciding authority must be impartial. This is known as the rule against bias. The principle that bias disqualifies an individual from acting as a judge flows from the following two maxims:

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(i) (ii)

No one should be a judge in his own cause; and Justice should not only be done but also seen to be done.

The first maxim applies not only when the adjudicator is himself a party to the dispute he is deciding, but also when he has some interest therein. The interest may be pecuniary or personal or of some other type. According to the second maxim, it is not necessary to prove that a particular decision was actually influenced by bias. It is sufficient if there is a reasonable suspicion about the adjudicator's fairness. The fountain of justice must not only be pure but it must also enjoy public confidence and credibility. The adjudicator must not only be free from bias, but there must not be even an appearance of bias. An essential element of judicial process is that the judge has to be impartial and neutral, and be in a position to apply his mind objectively to the dispute before him. Proceedings before a judge may be vitiated if he is biased, or if there are factors which may influence him to improperly favour one party at the cost of the other party in the dispute. On the applicability of the doctrine of bias in adjudicatory proceedings, the Supreme Court has observed:51 " Nemo judex in causa sua, that is, no man shall be a judge in his own cuase, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in Courts of Law are open to the public except in those cases where for special reason the law requires or authorises a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome."

Though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is while pronouncing judgment or the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause of lis before it, in disregard of its duty to prevent miscarriage of justice.52 In R. Balakrishna v. State of Kerala,53 the Apex Court observed that in India there is complete separation of judiciary from the executive and Judges are not influenced in any manner either by propaganda or adverse publicity against any party. The cases are decided on the basis of the evidence available on record and the law applicable. There cannot be any presumption that the judicial verdict of the High Court might be consciously or unconsciously affected by the popular frenzy, official wrath or adverse publicity. The apprehension must be reasonable, genuine and justifiable. Merely because the High Court Judge had acted as a prosecutor against the accused/party, it cannot constitute a good ground for interference. In a case where an allegation of bias made against the judges is found to be not proved, the Court should not deny a right of hearing, if the person alleging the said bias is otherwise entitled as it is valuable right recognised even under the Constitution and imposition of the punishment of denying a right of hearing would amount to a violation of the principles of natural justice and hence, should not be resorted to.54 In P.V. Narasimharao v. State (CBI/SPE),55 though the apprehension of bias against a judicial officer was found to be baseless, yet the trial of the case was transferred to another judicial officer on the principle that justice should not only to done but also appear to have been done. This principle applies not only to judicial proceedings but also to adjudicatory proceedings. The question to be examined is: to what extent the rule against bias applies to adjudicatory bodies. Bias is usually of three kinds: (i) Pecuniary Bias; (ii) Personal Bias; and (iii) Departmental or Policy Bias.56 Each of these concepts is discussed below separately. 2. PECUNIARY BIAS A direct pecuniary interest, howsoever small or insignificant, disqualifies a person from acting as a decision-maker in a dispute. In a classic English case, a public limited company filed a case against a landowner in a matter largely involving the interests of the company. The Lord Chancellor who was a shareholder in the company heard the case and gave to the company the relief sought by it. His decision was quashed by the House of Lords because of the pecuniary interest of the Lord Chancellor in the

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company.57 Lord Campbell in his opinion emphasized that while no one could suppose that the Lord Chancellor was, in the remotest degree, influenced by his interest in the company, it was very important that the maxim that no man is to be a judge in his own cause be held sacred. The Dimes case refers to a court of law but similar principle applies to adjudicatory proceedings as well.58 In India also, the principle is followed that "any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify an adjudicator.59 Recently, the Supreme Court has observed: "If a person has a pecuniary interest, such interest, even if very small, disqualifies such person."60 Thus, where a permit was granted by a regional transport authority to one of its own members, the High Court had no hesitation in cancelling the permit on account of bias of the authority.61 In one case,62 Chief Justice Gajendragadkar of the Supreme Court reconstituted the bench excluding himself from hearing the case because he was a member of the co-operative society for which the land in dispute had been acquired. Under its administrative powers, the State Government appointed a committee to select books for purchase for school and college libraries. Some of the members of the assessment committee were themselves authors of books and some of these books were selected and purhcased. The Supreme Court held in J. Mohapatra & Co. v. State of Orissa63 that such a procedure would be hit by the doctrine of bias. A person who has written a book which is submitted for selection, either by himself or by his publisher, is interested in the matter of selection as he stands to benefit financially if his book is selected because he gets royalty on the sale of the book. It is immaterial how much he benefits. It is also no answer to say that an author-member is only one of the members of the assessment committee and that the ultimate decision rests with the State Government which may reject any book out of the list of approved books. The reasons are: the State Government would normally be guided by the list approved by the committee, and one member can subtly influence the minds of the other members against selecting books by other authors in preference to his own.64 "It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo." Further, whether the other members are so influenced or not is a matter impossible to determine. The Court has thus observed: "It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias. All these considerations require that an author-member should not be a member of any such committee."65 A pecuniary or proprietary interest in the subject matter of the dispute ipso facto disqualifies the adjudicator and it is not necessary to prove that there was a real likelihood of bias in the circumstances of the case. 3. PERSONAL BIAS The law relating to personal bias is complex. Questions about this type of bias arise very frequently. Varied circumstances may give rise to personal bias in the decision-maker for or against a party in a dispute which he is called upon to adjudicate. The decision-maker may be a friend or a relation of one of the parties to the dispute, or may have some business or professional relationship with him, or may have some personal animosity or hostility against him, or may have some personal friendship or family relationship with him. Or, the decision-maker may have been involved in some capacity in the earlier stages of the dispute. All these circumstances create bias either in favour of, or against, the party concerned. Personal bias disqualifies the decision-maker to act as such. Some of the situations when personal bias arises and disqualifies a decision-maker are: (i) (ii) (iii) (iv)

The manager of a factory himself conducts an inquiry against the workmen who are alleged to have assaulted him.66 A person sits on a gram panchayat bench to hear appeal against his own conviction by a lower body.67 A member of a decision-making body cannot be both a party and a judge in the same dispute.68 An accuser presides over a meeting of the disciplinary authority while seeking to discipline the person against whom he has made accusations.69 The adjudicator happens to be a relation of one of the parties to the dispute on which he seeks

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to adjudicate.70 In Mineral Development Ltd. v. State of Bihar,71 the Revenue Minister cancelled the petitioner's licence for the lease of certain land. There was political rivalry between the petitioner and the Minister who had even filed a criminal case against the former. It was held that since there was personal bias against the petitioner, the Minister should not have taken part in cancelling his licence. On the other hand, in Murlidhar v. Kadam Simgh,72 the chairman of an election tribunal was held not disqualified from deciding the dispute relating to the petitioner's election on the ground that the chairman's wife was a member of the Congress Party whose candidate the petitioner had defeated. In an early English case, it was held that a magistrate who was a subscriber to the Royal Society for the Prevention of Cruelty to Animals, but who had no control over any prosecution by the society, was not disqualified from trying a charge of cruelty to a horse brought by the society.73 The Deputy Registrar of Co-operative Societies was held not to be disqualified when he was a member of a society (it appears by virtue of his office) and acting under the relevant statute, he ordered its supersession.74 The test of personal bias of the decision-maker is not whether there was actual prejudice against the petitioner or not. The courts do not go into the facts of the case to see whether or not the petitioner had been prejudiced in fact. The courts in England have espoused two tests to determine personal bias: (1) real likelihood of bias; (2) reasonable suspicion of bias.75 As de Smith explains,76 "reasonable suspicion" test looks mainly to "outward appearances"; "real likelihood" test focuses on the courts' own evaluation of the probabilities. But, in practice, both tests have much in common with each other and in a vast majority of cases, it may not make any difference whichever test is applied; the result may still be the same. At times, it has been stated that "there really is little (if any) difference between the two tests".77 But, at times, it has been stated that there is a difference and that the "real suspicion" test is broader, less stringent and more flexible than the "real likelihood" test.78 The landmark case on the the subject is Metropolitan Properties Ltd. v. Lannon,79 where Lord Denning has laid down that the test of bias is whether there is "real likelihood" of bias or not in the facts of the case and this has to be ascertained with reference to the "right minded persons". The fact-situation in this case was as follows: A block of flats belonged to a company. A tenant in a flat applied for fixing fair rent. The matter reached the rent assessment committee of which, Lannon, a solicitor, was the chairman. Lannon lived with his father who was a tenant in a flat owned by a company, an associate company belonging to the same group as the company which was now a party in the matter before Lannon. Lannon had assisted his father and other tenants in fixation of fair rent for their flats. The decision of the assessment committee was challenged on the ground of Lannon's bias. The petitioner company even acknowledged that there was no actual bias or want of good faith on Lannon's part, but contended that there was unconsciously "a real likelihood of bias". The Court of Appeal accepted the plea and quashed the decision of the rent committee on the ground of the "real likelihood" of bias. Lord Denning delivering the judgment of the court emphasized that it was of fundamental importance that justice should not only be done, but should manifestly be seen to be done. He emphasized that in considering whether there was a "real likelihood" of bias, the court does not look at the mind of the decision-maker himself. The court does not look to see if he did in fact favour one side at the expense of the other. "The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a 'real likelihood' of bias on his part, then he should not sit. And if he does sit, his decision cannot stand." There must appear to be a "real likelihood" of bias; mere surmise or conjecture is not enough. "There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think that he did." It is to be noted that the perspective from which to view bias is to be that of a reasonable man; it is not to be that of the individual affected himself because he may be perverse or over-sensitive; nor it is the perspective of the judge impugned himself, who is unlikely to accept that he was biased; nor it is that of the reviewing court itself which may determine ex facto with a cold detachment whether bias was likely to arise in the circumstances of the case. According to Lannon, the existence of actual bias in the decision-maker is not necessary. What is necessary is the 'real likelihood of bias' which is to be ascertained by the court not on the ground whether the reviewing court itself thinks that there was a 'real likelihood of bias' in the given situation, but by applying the yardstick

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as to "what a reasonable man" would think about the matter: whether he would think that there was a real likelihood of bias in the situation. Even when the reviewing court may feel that there was no real likelihood of bias in the decision-maker in the circumstances of the case, it may yet quash a decision if in its opinion the right-minded people would think so. "The court looks at the impression which would be given to other people". Nevertheless, "there must appear to be a real likelihood of bias. Surmise or conjecture is not enough".80 The test as now formulated by Lord Denning looks to "outer appearances" and comes very near to the "reasonable suspicion" test. The reason for not insisting on actual proof of bias in the decision-maker is that it is extremely difficult to prove, on a balance of probabilities, that a person required to act in an adjudicative capacity was in fact biased. Bias is an attitude of mind leading to a predisposition towards the issue. Because of this circumstance, the law looks "to suspicion", of bias arising from the factual situation in which the particular adjudicator is placed rather than the existence of actual bias. The reason underlying adoption of such a broad test of bias is that justice must be rooted in public confidence and this confidence is destroyed when right minded persons think that the adjudicator was biased. CROSS L.J. explained the test as follows in Hannam v. Bradford Corporation:81 "If a reasonable person who has no knowledge of the matter beyond knowledge of the relationship which subsists between some members of the tribunal and one of the parties would think that there might well be bias then there is in his opinion a real likelihood of bias. Of course, someone else with inside knowledge of the characters of the members in question might say: "Although things don't look very well, in fact there is no real likelihood of bias." That, however, would be beside the point, because the question is not whether the tribunal will in fact be biased, but whether a reasonable man with no inside knowledge might well think that it might be biased."

In India, no uniform test of bias has been applied by the courts. There has been confusion in judicial thinking as regards the test of bias. Thus, in Manak Lal v. Prem Chand,82 a complaint alleging professional misconduct against Manak Lal, an advocate of the Rajasthan High Court, was filed by Prem Chand. The bar council tribunal, appointed by the Chief Justice of the High Court to enquire into the alleged misconduct of Manak Lal, consisted of a chairman and two other members. The chairman had earlier represented Prem Chand in a case, He was, however, a senior advocate and was once the Advocate-General of the Rajasthan High Court. The Supreme Court had no hesitation in assuming that the chairman had no personal contact with his client and did not remember that he had appeared on his behalf in certain proceedings. The Court was thus satisfied that there was no "real likelihood of bias," but still it held that the chairman was disqualified on the ground that "justice not only be done but must appear to be done to the litigating public." The Court ruled that actual proof of prejudice was not necessary in such cases; it was not necessary to prove that any prejudice was caused or that the biased member did improperly influence the final decision of the tribunal; reasonable ground for assuming the possibility of bias was sufficient.83 The Court emphasized that a judge should be able to act judicially, objectively and without any bias. In such cases, the test is not whether in fact bias has affected the judgment, but whether the litigant could reasonably apprehend that bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal.84 In this case, therefore, the Court looked at bias from the perspective of the person affected which is a wider test than that of the reasonable man adopted in Lannon. In Lannon, such a test was rejected by Lord Denning; instead, the test of 'reasonable man' was adopted. The leading case in this area is A.K. Kraipak v. Union of India,85 in which again the Supreme Court adopted the perspective of the affected person as a test of bias. For selection to the Indian Forest Service from amongst the employees of the State Forest Service, a selection board was constituted consisting of several members, including the acting conservator of forests, who was himself a candidate. The board selected a number of candidates including the acting conservator. Some of the unsuccessful candidates challenged the list as finally prepared by the Union Public Service Commission on the recommendation of the state selection board inter alia on the ground of bias. The Supreme Court quashed the selections emphasizing that the concept of rule of law would lose all its validity if the state instrumentalities were not obligated to discharge their functions in a fair and just manner. It was improper to have a candidate himself sitting as a member of the selection board. There was a reasonable ground to believe that he was likely to be biased as he would be interested in safeguarding his own position while making the selections. At every stage of his participation there would be a conflict between his interest and duty. The Court emphasized that the real question was not whether he was biased "because it is difficult to prove the state of mind of a person," but whether "there is

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reasonable ground for believing that he was likely to have been biased." "There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct." The other members of the selection board who were independent persons had filed affidavits saying that they were in no way biased by the presence of the person in question, and that he did not participate in the board's deliberations when his name was being considered, but still the selections made by the board were quashed by the Court. The Court stated that the bias of one member in a group would infect the whole group. In a group decision, it is difficult to say how one biased member may influence in a subtle manner the decision of other members.86 The Court also emphasized that while the list prepared by the state board was not the last word in itself in the matter of selection, nevertheless, the board's list must have weighed with the Union Public Service Commission in making the final list.87 In Parthasarathi,88 the Supreme Court applied the "real likelihood of bias" test but this was to be based on the "reasonable apprehension of a reasonable man fully cognisant of the facts." The qualifying words in this formulation "fully cognisant of the facts" restrict the scope of the 'real likelihood of bias' test as propounded in Lannon. In Lannon, it is a matter of impression not of knowledge. Justice is "seen" to be done, not 'known' to be done. Therefore, the actual knowledge of facts is not the determining factor. What impression a reasonable man, looking at the facts from outside, has about the matter is the crux.89 In G. Sarana v. Lucknow University,90 the Supreme Court made some observations which threw doubt on the applicability of this test. The petitioner, a candidate for a professor's post in a university, challenged the recommendation made by the selection committee on the ground of personal bias on the part of two members of the committee against him in favour of the candidate recommended for appointment. His allegation was that the two members of the selection committee were very friendly to the other candidate, and that one of the members had strained relations with the petitioner. Though the Court refrained from giving any relief in the instant case because of waiver on the part of the petitioner,91 yet it did make observations as regards the scope of the rule of bias. While doing so, it adopted practically all the various expressions used to test bias from time to time in different cases. At one place, the Court said that "the real question is not whether a member of an administrative board, while exercising quasi-judicial powers or discharging quasi-judicial functions, was biased, for it is difficult to prove the state of mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to-have been biased." At another place, the Court formulated the following principle: "In other words, whether there is a substantial possibility of bias animating the mind of the member against the aggrieved." Thus, the Court used two different expressions, viz., "reasonable ground for believing" that he was biased, and "substantial possibility of bias." The latter test seems to be more restrictive than the former. It is not clear what specific test the Court had in mind, or whether it thought that all these various expressions were synonymous, and, further, whether it was for the court to be satisfied as to the possibility of bias in the circumstances, or whether it would apply the test of a "reasonable man" as propounded in Lannon, or whether it will look at the matter from the perspective of the aggrieved person? The Court observed: "In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration."

In several cases, the courts have applied the test of bias from the perspective of the affected person, e.g. Manak Lal.92 In Chamba Singh v. State of U.P.,93 the consolidation officer sent a letter to the State Government to file objections in the consolidation proceedings before him. It. was argued that this showed that the consolidation officer was biased against the petitioners. The Allahabad High Court accepted the argument saying it was improper for the consolidation officer to ask the State to file objections, and that bias in law was clearly attributable to the consolidation officer. The Court emphasized that while hearing objections, he was acting as a quasi-judicial tribunal and so it was necessary for him to conduct proceedings in such a manner "as would not engender a reasonable apprehension in a litigant that he would not get a fair trial in that forum." "Judicial tribunals which are invested with judicial or quasi-judicial powers must conduct the proceedings in such a manner that justice must not only be done but must appear to be done to the litigant public". Nothing can be more subversive to the faith of a litigant in a tribunal than when it takes up cudgels on behalf of another party. The consolidation officer asked the State Government to file objections. Thus, bias in law was clearly attributable to the consolidation officer. The Allahabad High Court emphasized that on an allegation of bias being made, it is not necessary to prove actual prejudice; what is necessary is to

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show that the adjudicatory proceedings were conducted in such a manner that a litigant could reasonably apprehend that the final decision would be biased.94 Similarly, in Cheliah,95 the Madras High Court said that the presence of the chairman in the Board meeting while his appeal against the chairman's decision was being discussed and decided upon, "certainly created a reasonable impression in the party whose rights are being adjudicated, that there may be a likelihood of bias. This is sufficient in law". As has already been pointed out, in Lannon the test of bias was adopted from the perspective of a reasonable man and not from that of a litigant. The reason being that he may be over-sensitive while a reasonable man would take a more rational and balanced view of the circumstances of the case. Recently, in Ashok Kumar Yadav v. State of Haryana,96 the Supreme Court has unequivocally reiterated the proposition, as expressed in Kraipak, that a fundamental principle of Administrative Law is that no one can be a judge in his own cause. The question is not whether the judge is actually biased, but whether there is a real likelihood of bias. "What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision." This principle applies in all situations where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. The principle has been applied to administrative bodies as well which must discharge their functions in a fair and just manner. As regards Kraipak, the court has observed: "... A.K. Kraipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fairplay into legality."

Bias arises in varied situations. An adjudicatory authority may be disqualified if there is a close connection between it and the issue in controversy. No person can be an advocate for or against a person in one proceeding, and at the same time sit as a judge in another proceeding to which that very person is also a party.97 Similarly, a lawyer ought not to sit as an adjudicator in a case in which one of his clients is a party. Nor he ought to sit as an adjudicator when he is already acting against a party. No person should sit as an adjudicator in a case to which a near relation or a close friend is a party. A person should not act both as a judge and a witness, or as a judge and a prosecutor, or as a complainant and a judge at one and the same time.1 An inquiry officer would be disqualified to act as such at a departmental inquiry against an employee if he were also to be a witness against that employee in the same inquiry. It is incongruous that a person should act both as a judge as well as a prosecutor or as a prosecution witness. In such a situation, the enquiry officer cannot be regarded as unbiased. In a classic case,2 a departmental inquiry was held against an employee. During the course of the inquiry, the officer holding the inquiry left his seat, gave evidence against the said employee and then resumed the inquiry and passed the order of dismissal. The Supreme Court quashed the order of dismissal on the ground of bias of the inquiry officer. In a recent case3 the management of a school appointed a committee to inquire into certain allegations against the principal. During the course of the inquiry, one of the committee members (M) testified against the principal. The inquiry committee recommended dismissal of the principal and the management acted accordingly. The Supreme Court quashed the dismissal order on the ground of bias. The Court ruled that the bias of M had percolated throughout the inquiry thereby vitiating the principles of natural justice and the findings made by the committee were the product of a biased and prejudiced mind. The Court reiterated the principle that for appreciating a case of personal bias "that test is whether there was a real likelihood of bias even though such bias has not in fact taken place." The Court also reiterated the test of bias as laid down in Manak Lal.4 Similarly, if the inquiry officer in a disciplinary proceeding against a civil servant has strong personal animosity against him, it is improper for him to conduct the inquiry.5 The officiating director (M) framed certain charges against his subordinate P.M. himself conducted an inquiry into those charges against P.P. had objected against M conducting the inquiry on the ground that M was biased against him. M held P guilty of some of the charges and ultimately P was dismissed from service. The Supreme Court quashed the dismissal order on the ground that the cumulative effect of the circumstances of the case "was sufficient to create in the mind of a reasonable man the impression that there was a real likelihood of bias in the inquiring officer". A government servant cast some aspersions on two ministers. The collector who was subordinate to one of the ministers conducted the inquiry. The Gujarat High Court refused to quash the inquiry, as, in its opinion, there was no reasonable ground for assuming the possibility of bias. This is an old case6 where the

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judge himself decided whether there was the possibility of bias or not in the situation. Had the Lannon7 test been applied, the result may have been different as a reasonable perso would think that the subordinate would be biased while holding an inquiry in a matter involving the credibility and reputation of his superior. An inquiry was commenced by the general manager of a factory against some workmen. After five witnesses had been examined, the managing director took over the enquiry and examined the general manager as a witness. The proceedings were quashed by the Supreme Court because quite apart from the incongruity of the person who was at the initial stage presiding over the inquiry stepping into the witness box at a later stage, the managing director who later took over the enquiry was from the very beginning in charge of the prosecution and was active in securing proper evidence to establish the charges against the workmen.8 On a similar basis, if a member of a tribunal recommends a particular applicant for a permit, he will be disqualified from sitting as the member of the tribunal to decide the matter.9 It will be wrong for the person who takes an initial decision to sit with the appellate authority while hearing an appeal from his own decision though, under the relevant statute, he is a member of the appellate authority. In K. Chelliah v. Chairman, Industrial Finance Corporation,10 disciplinary action by way of dismissal was taken by the chairman of a statutory corporation against an employee. There was a provision in the statute for an appeal from the chairman to the board of directors. Accordingly, the dismissal employee appealed to the board against the chairman's order. The chairman himself was an ex officio member of the board and he participated in the meeting of the board in which the employee's appeal was considered. The board resolved to dismiss the employee's appeal without giving him a hearing but after obtaining chairman's comments. The High Court quashed the board's decision on the ground of bias as the presence of the chairman in the board meeting, who had every thing to do with the subject-matter under consideration, created a reasonable impression in the party whose rights were being adjudicated upon that there was a real likelihood of bias, and that was sufficient in law.11 The Court ruled that it was not necessary for the petitioner to establish as a fact that the chairman did influence the board. "The chairman having participated, the decision should be deemed to be or reasonably held to be hit by the principle of bias." The fact that the other members were independent members did not really govern the issue. "The impugned order ex facie shows that the chairman's original order and his remarks did have a great play in the ultimate decision". It was not a case of bias where the Chief Secretary of the State was the same person who had made earlier several adverse remarks against the appellant officer and he sat as the Chairman of the Joint Screening Committee which found the said officer not fit for promotion to selection grade;12 but there were other important facts which clearly made out a case of real likelihood of bias on the part of the Chief Secretary. Earlier on account of the said officer's speech at a public function, the State Govt. had started a disciplinary inquiry against him, which was later on dropped but a remark passed by the said Secretary against the said officer was published in a newspaper for which the officer unsuccessfully sought permission of the State Govt. to prosecute him. He filed a writ petition in which the High Court held that refusal to grant sanction was not justified and ought to have been given in public interest which was confirmed by the Apex Court. The Supreme Court held that the background of the special facts, there arises the question of likelihood of bias. Further, on the date of the meeting of the Joint Screening Committee, the Chief Secretary was defending the officer's writ appeal before the Division Bench of the High Court. The plea of bias, although not raised during the inquiry proceedings, if it is raised in the High Court, it is sufficient as it goes to the root of the question and is based on "admitted and uncontroverted facts" and does not require any further investigation of facts. Therefore, the Chief Secretary should have " recused" himself from the Committee. As he did not do so and participated in the decision-making process and disqualified the said officer, the entire recommendations of the Screening Committee must be treated as vitiated and invalid. This defect is also not cured because of the remedy of an appeal.13 In Baidyanath Mahaptra v. State of Orissa,14 G. as Chief Secretary of the Orissa Government was a member of the review committee which recommended compulsory retirement of B.from government service. The government accordingly issued the order retiring B. He challenged the order before the State Administrative Tribunal of which G. had by now become the chairman. The Tribunal upheld the retirement order and rejected B.'s challenge to it. On appeal, the Supreme Court held the Tribunal's order vitiated on the ground that G. participated in the Tribunal proceedings and was a party to its decision. The Court pointed out that G. "who had administratively taken a decision against the appellant, considered the matter judicially as a Chairman of the Tribunal, thereby he acted as a judge of his own cause." The Court emphasized that while it was true that there was no allegation of personal bias against G., and he might have acted bona fide, "nonetheless, the principles of natural justice, fair play, and judicial discipline required that he should have

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abstained from hearing the appellant's case". But, the Court refused to give any relief to the appellant on this ground as he had not raised any objection before the Tribunal against the participation of G. This is applying the doctrine of waiver to the facts of the case:15 However, the Court quashed the order on several other grounds. Can a person who has framed the charges against a civil servant act as the inquiry officer in disciplinary proceedings against him? In Parthasarathi v. State of Andhra Pradesh,16 this was held to be wrong. However, the Supreme Court reached a contrary result in Sunil Kumar v. State of West Bengal,17 where the inquiry officer was the one who had earlier drafted the charges against the civil servant concerned and had given the advice that there was material for holding the enquiry against him. The Court did not accept that this meant that he was acting both as prosecutor as well as judge.18 The ruling in Sunil is debatable. In the instant case, the enquiry officer did not merely frame charges against the petitioner but he did something more than that--he really advised for holding the inquiry against him. He thus became associated with the idea of inititing inquiry against him and his commitment with the result of the inquiry became somewhat more direct and personal. This kind of situation does create an impression in the right minded person that there is a real likelihood of bias in the circumstances of the case. Instead of applying this test, the Court took it upon itself to decide whether there was bias or not in the fact situation. This is not a correct approach. As an inquiry officer, he would be interested in substantiating the charges which he drew initially, and also to establish that his initial advice to hold an inquiry was right. The Court neither referred to the test of bias, already established in several earlier cases, nor sought to apply the same to the fact-situation of the instant case. Had the test of real likelihood of bias in the view of a reasonable man been applied to the fact situation here, it would have pointed to only one result. It is best that such a situation is avoided and inquiry is held by a completely fresh mind having no association with the case. As there is no dearth of officers in the government, it should not be difficult for the government to appoint an inquiry officer having no association with the matter. It seems that there may be no objection if the disciplinary authority draws the charges itself, but then entrusts the inquiry into those charges to an impartial person.19 It has been held that bias cannot be attributed when hearing is entrusted to the very person who had earlier decided against the person concerned without a hearing. A student was detained in his class by the principal and the college council on the ground of his using unfair means at the promotion examination. The High Court quashed the order on the ground of violation of natural justice. The principal again proceeded with the charge, appointed an inquiry committee and on its recommendation the college council again recommended detention. This was challenged on the ground of bias. It was argued that the principal and the council having decided the matter once earlier, had a bias in favour of their earlier decision and so they were not capable of reaching a fair decision a second time. Rejecting the contention, the Kerala High Court observed: ". . . it is not to be presumed that a person who has once decided a matter without due hearing would have such a bias in favour of his decision as not to be capable of reaching a fair decision after due hearing."20 This again is a very doubtful proposition for in such a situation there does exist a real likelihood of bias as the natural inclination of any person in such a situation will be to vindicate the conclusions reached by him earlier. This point of view is supported, to some extent, by the recent Supreme Court decision in Rattan Lal Sharma.21 Quashing the decision of the managing committee to dismiss the college principal on the ground of bias of a member of the inquiry committee, the Court ruled that while the managing committee would not be precluded from initiating a fresh disciplinary proceeding against the principal, no member of the old inquiry committee should be a member of the new inquiry committee. That a party to a dispute cannot himself act as a judge--this proposition is exemplified by the following case.22 The appellant, a godown keeper in the government food grains depot, was held liable for shortage in rice. The government decided that he must pay over Rs. 2000 on this account. When the appellant entered into service with the State he had agreed to make good any loss caused by his carelessness, misconduct etc. It was under this agreement that the government imposed the said liability on him. Quashing government decision, the High Court ruled that no doubt the agreement provided for recovery of loss or damages, but the agreement did not indicate how the liability was to be fixed. The agreement did not make the government an arbiter to fix the quantum of liability. The liability to pay damages and the power to quantify damages were two entirely different things. The government could not itself take a one-sided decision and fix the quantum of liability as it had no such power under the agreement and also because no man can be a judge in his own cause. In a dispute about a contract, a person cannot be both a party and a judge.

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An important recent case on bias is Institute of Chartered Accountants of India v. L.K. Ratna.23 The Institute is a statutory body established to maintain discipline and professional ethics among the chartered accountants. The instant case arose out of disciplinary proceedings taken by the Institute against a chartered accountant. The Council is the governing body of the Institute. There is a disciplinary committee consisting of the President, Vice-President and three members of the Council. A complaint against a chartered accountant is first investigated by the disciplinary committee; the report of this committee is then considered by the Council. If the disciplinary committee finds a member guilty of professional misconduct, the Council gives a hearing to the concerned member before imposing a punishment. In Ratna, the Council proposed to remove the name of the respondent from the register of accountants for five years on the ground of professional misconduct. The fine question which arose was whether the President, Vice-President and the members of the disciplinary committee could participate in the Council's meeting when it considered the report of the disciplinary committee. The Court ruled that "a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the disciplinary committee, it proceeds to find whether he is or is not guilty." The Court also ruled that the members of the disciplinary committee would be disqualified from participating in the Council meeting when it is considering the report of the disciplinary committee. This is on the principle of bias; the Council discharges a quasi-judicial function and the fundamental principle is that "justice must not only be done but must also appear to be done." To the member whose conduct has been investigated by the disciplinary committee, the possibility of the Council disagreeing with the report of the disciplinary committee in the presence of the President, Vice-President and other members of the disciplinary committee would be rather remote. His fears would further be aggravated by the circumstance that the President who presided over the disciplinary committee meetings would also preside over the Council meeting, and he would thus be in a position to control, and possibly dominate, the proceedings during the meeting. The danger of partisan consideration being accorded to the inquiry report by the Council would be very real to the mind of the concerned member. The objection on the ground of bias would have been excluded had the statute expressed itself to the contrary, but the Act makes no such exclusion.24 The Court rejected the argument of necessity.25 The Court pointed out that under the rules while the disciplinary committee must necessarily consist of the President and the Vice-President, there was no such compulsion about the Council meeting. The Court suggested an amendment of the Act providing for the constitution of the disciplinary committee without the President and the Vice-President so as to give due recognition to the fundamental principles of law. The Ratana pronouncement has great significance in the context of India. A number of statutory professional bodies have been created for maintaining discipline and professional ethics among the practitioners of various professions. The Ratna ruling will be applicable to all such bodies while they dispose of cases of indiscipline among the members of the concerned profession. Through this ruling, the Supreme Court has extended much better safeguards to professional persons.26 A student was rusticated from the college for three years for misbehaviour. Some of the principal witnesses to the incident in question were members of the staff; they were appointed as members of the inquiry committee as well as of the disciplinary committee. The High Court held the decision vitiated on the ground of bias. The court noted that although these persons were professors in the college and had no personal grudge against the student, and that they might have tried to hold an impartial inquiry, nevertheless, that would not create confidence in the student that the enquiry was unbiased. The inquiry committee had reported that the student be rusticated from the college. This meant that the staff members on the committee categorically expressed the view that the punishment be imposed on the student. The disciplinary committee with the same staff members accepted the report of the inquiry committee. It was true that there were many other highly qualified and respected academicians as members of the two committees and "no allegations are made or can be made against their honesty, integrity and impartiality." However, the Court ruled that that by itself was not "sufficient to save the situation. .."27 It needs to be pointed out that in this case, the court looked at the matter from the point of view of the affected person rather than that of 'a reasonable person' as laid down in Lannon. However, the result would have been the same had the Lannon test been applied. In Divya Chandra v. Vice-Chancellor, Roorkee University,28 some students of a university complained to the vice-chancellor against a fellow student that she had used unfair means at the examination. The vice-chancellor appointed a committee of inquiry but the complaining students pressurized him to dissolve this committee and appoint another committee out of a panel of names submitted by them. The vice-chancellor acted accordingly. On the recommendation of the new committee, the senate resolved to withhold the result of the student. On a writ petition filed by the student concerned, the High Court quashed

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the senate's decision on the ground of bias, because: (i) the inquiry committee was chosen by the complaining students themselves who had a bias and enmity against the petitioner: this amounted to a person being a judge in his own cause; (ii) the inquiry committee practically held the petitioner guilty even before holding the inquiry: this shows that the committee members were determined to punish the petitioner; (iii) some members of the committee which recommended the punishment were members of the senate and attended its meeting when it approved the committee's recommendation; (iv) some members of the inquiry committee had earlier deposed against the petitioner before the preliminary inquiry committee. The principle that no man can be a judge in his own cause is illustrated by Arjun Chaubey v. Union of India.29 The appellant was dismissed from railway service by the Deputy Chief Commercial Superintendent (DCCS). Most of the charges levied against the said employee related to his conduct qua the DCCS himself,30 who himself considered the employee's representation and passed the dismissal order. No enquiry was held as the DCCS passed an order under Art. 311(2) that it was not reasonably practicable to hold the inquiry.31 The Supreme Court quashed the order on the ground that the said DCCS sat as a judge in his own cause. The Court pointed out that if a proper inquiry were held, the principal witness for the employer would have been the DCCS himself as the main accuser and the target of the applicant's misconduct. The Court emphasized: "No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep himself aloof from the conduct of the inquiry.". While quashing the impugned dismissal order, the Court commented: "The illegality touching the proceedings which ended in the dismissal of the appellant is 'so patent and loudly obtrusive that it leaves an indelible stamp of infirmity' on the decision of respondent (DCCS)". The father of a candidate, being the Secretary of the Managing Committee of the school, participated in her selection as a teacher and by virtue of such improper selection she became a member of the Managing Committee which subsequently confirmed her selection. In such circumstances, the Apex Court held that her selection amounted to flagrant violation of the principles of natural justice.32 Where a provisional promotee, whose own promotion was pending before the Commission, was appointed as its member, it raised suspicion of undue favour and was held to be improper and illegal.33 A party to a dispute regarding title of a property cannot be appointed receiver of that property pending initiation of proceedings in the civil Court by the parties.34 In S.P. Kapoor v. State of Himachal Pradesh,35 Dr. G. made annual confidential reports relating to several government doctors working under his administrative charge. Dr. G. was himself a candidate for promotion competing with several of these doctors. It was held that it was not fair for the selection committee to take into consideration the confidential reports made by G. regarding the other doctors. The Court also concluded that the whole selection exercise was made in post-haste completing it in one day, which was unusual. It was clear that some higher-up (such as the Chief Minister) was interested in the matter. The Court thus required that the matter of selection for promotion be considered afresh. The State Government appointed a committee to select books for purchase for schools in the State. One of the committee members happened to be the daughter-in-law of one of the authors whose books were ultimately selected. The selection was quashed on the ground of bias. The presence of a near relation of an author in the committee would raise reasonable apprehension of bias on the part of such a member in the minds of the competitors.36 In I.T.C. Ltd. v. Union of India,37 the Director, Directorate of Anti-Evasion (Central Excise), issued a show-cause notice to the petitioner company to show cause why central excise duty of Rs. 803 crores, which was allegedly short paid by the company, should not be demanded under the provisions of the relevant Act. The company moved a writ petition in the High Court requesting the court to prohibit the director from adjudicating in the matter because of bias on the following grounds:(i) one and the same officer should not issue the show cause notice as well as decide the case also; (ii) the said officer had made a press statement prior to the inquiry holding the company guilty of tax evasion; (iii) under the reward scheme, the concerned officer would get reward from the government for unearthing tax evasion and this created bias in him against the company as he would be prompted to find tax evasion even though actually it was not so. The Calcutta High Court rejected all these contentions. As regards the first contention, the court argued that if an authority is expressly empowered by the statute to make a draft order or provisional decision and is empowered to entertain representations and consider objections against it in order to decide whether or not to give it final effect, the question of bias does not come into play, "inasmuch as such a state of affair is neither intrinsically offensive nor abnormal in the process of administration".38 The court by-passed the second argument by saying that the newspaper could not be relied upon as such unless some one who heard the statement

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testified as to its veracity.39 Also, it was not possible to draw any inference from an isolated statement without knowing the context in which it was made. The court rejected the third argument by saying: "Simply because the reward rules entitled an officer to get a reward... is not sufficient to prove a case of bias, inasmuch as a case of bias, has to be established with some materials and not on the basis of some vague allegations and/or on the basis of mere interpretation of the reward rules."

As a comment on the above formulation it may be stated that it is not in accord with the 'real likelihood, rule. It is not necessary to establish actual bias to quash an adjudicatory proceeding on the ground of bias. Further, the reward rules did create a financial interest in the concerned officer which could be regarded as a disqualification.40 The best thing in the situation would be to separate the "adjudicatory" function from the "inquiry" function by suitably amending the law so as to remove any suspicion of bias from the system. The rule against bias was applied to trial by court-martial in Ranjit Thakur v. Union of India.41 The court-martial consisted of three persons, one of whom was the commanding officer (CO) of the Regiment. Earlier, the appellant had sent a representation directly to the higher officers complaining against the CO for which the CO had imposed on the appellant a sentence of 28 days' rigorous imprisonment. While in custody, he refused to eat his food and to try this offence the court-martial in question was constituted which imposed a sentence of one year rigorous imprisonment on him and he was also dismissed from service. The appellant challenged the sentence and the proceedings of the court-martial through a writ-petition.42 One of the grounds of challenge was the bias on the part of the CO who himself was a member of the court-martial. Accepting the plea of bias, the Supreme Court ruled that having regard to the antecedent events, the participation of the CO in the court-martial rendered the proceedings coram nonjudice. The Court emphasized: "A judgment which is the result of bias or want of impartiality is a nullity and the trial ' coram non justice'." Explaining the principle of bias, the Court observed: "As to the test of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, "am I biased?" but to look at the mind of the party before him." The Court specifically approved the "real likelihood" test laid down by Lord Denning in Lannon, but, it may be noted, that there is some difference between the Lannon test and the one adopted here. In Lannon the "real likelihood of bias" was tested with reference to the reasonable man, whereas here the party himself has been taken as the index. As already stated, this test is broader than the Lannon test.43 In any case, the result would have been the same had the 'reasonable man' test been applied in this case. Another ground to quash the sentence of the court-martial was that some mandatory procedural rules had not been observed by the cour-tmartial. Non-observance of the procedure as laid down in the Act was held to go to the root of the jurisdiction of the court-martial and vitiated its proceedings. The Court emphasized upon the importance of following the procedural rules.44 To sum up the above disscussion, 'bias' is 'situational' or 'circumstantial'. It is not the 'reality' of the matter but the 'appearance' which is important. A judge knowing the facts from inside may feel that there was no bias in the decision-maker, but a reasonable man looking at the same facts externally may still feel that justice was not done in the instant case. In this context, therefore, the test of "actual bias" gives place to the broader test of "real likelihood of bias". Needless to say, where actual bias exists, administrative proceedings will be vitiated. But actual bias is not always necessary for this purpose. Even where there is "real likelihood of bias", proceedings are vitiated. In several cases above,45 the courts have propounded a test of bias from the perspective of the litigant: what will a litigant feel about the matter? Recently, in Rattan Lal Sharma,46 the Supreme Court has observed: "... the test is not whether in fact, a bias has affected the judgment: the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but also appear to be done."

In Ramanand Prasad Singh v. Union of India,47 the Supreme Court held that the participation of a person in the selection as a member of the Selection Committee in which his brother was a candidate but he was not selected, was not violative of the selection of other candidate on the principle of personal bias. One of the

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candidates for the posts of District Food and Supplies Officer in Haryana alleged bias against the Chairman of the Public Service Commission when the second interview was held on the ground that he had approached the Supreme Court earlier. The Supreme Court found that two more candidates had approached the Apex Court earlier yet they were selected. His plea of bias was rejected.48 Lord DENNING rejected such a test in Lannon, as a litigant's view is bound to be very subjective; he may be too suspicious and may see bias everywhere if he loses the case. It is therefore not his suspicions which are to be determinative of bias. Instead, the test of a 'reasonable man', a less subjective test, has been adopted in England.49 In Constable Davinder Singh v. State of Haryana,50 bias was contended in the selection of constables alleging that one of the candidates selected was related to one of the selecting officers and some candidates had worked as gunmen with VIPS. The Apex Court found that the selection of 40 candidates was done objectively and the same could not be vitiated only on account of the said allegations. The mere fact that one of the members of the Selection Committee was a member of an organisation or was on the Editorial Board of a magazine brought out by that organisation and one of the candidates appearing before the said Selection Committee was the editor of that magazine, was held to be not sufficient to infer that such a member would necessarily be favourably inclined towards that candidate.51 Similarly, one of the members of the Selection Committee being a distant relative of a candidate by six degrees, was held to be not violative of the principles of natural justice.52 A Committee was appointed to consider the question of inter se seniority of the two batches of the recruits of the Civil Services of the Sikkim State. One of the recruits alleged bias against the Head of the Committee as his wife also was one of the recruits, hence her seniority should not have been determined by the Committee. The Supreme Court rejected his contention holding that such an objection should have been raised as soon as the Committee was constituted.53 In a departmental proceeding the disciplinary authority appointed an inquiry officer. Subsequently, the disciplinary authority was replaced by an ad hoc disciplinary authority who, on the basis of the report of inquiry officer appointed by the original disciplinary authority, passed the order of the employee's removal from services. The order of removal was set aside by the Tribunal on the ground that the inquiry officer was appointed by the original disciplinary authority and not by the ad hoc disciplinary authority who passed the order. The Apex Court held that in absence of any prejudice or allegation of bias or mala fides against the inquiry officer, the order of the disciplinary authority should not have been set aside.54 Where the Supreme Court, considering an employee's case and his litigation against his officers, had directed that his case for promotion should be considered by an Interview Committee which did not include any of those officers, it rejected the contention of bias by the employee against the members of the said Committee on the ground of his previous litigation.55 Similarly, where the Apex Court had directed that the case of extension in the service of the employee should be considered by a three-member Committee headed by an outsider as its Chairman so that the decision be taken objectively, allegation of bias against its members was rejected.56 4. DEPARTMENTAL OR OFFICIAL OR POLICY BIAS In many adjudicatory proceedings before bureaucratic authorities, one of the parties is usually the Administration itself. The basic function of government departments is to formulate and apply policies. Therefore, when an administrator acts as an adjudicatory authority in a dispute between his department and a private party, he may have "official" bias towards the department to which he is attached, or may have a 'policy' bias, i.e., he may be interested in projecting and pursuing policies followed by his department. Officials being a part and parcel of the administrative department are interested in pursuing and implementing departmental policies. They do imbibe, consciously or unconsciously, some pre-disposition or interest vis-a-vis the policies or subject-matters they administer. The officials thus imbibe 'policy' bias, and even when they are acting as adjudicators between the department and private parties, they cannot be insulated completely from such bias.57 An official is thus not able to shed his policy bias while acting as an adjudicator. An administrator-adjudicator cannot develop the same kind of neutrality and objectivity towards the issues and policies canvassed before him as is the characteristic feature of a judge. An official may be so highly placed in the departmental hierarchy that he may have himself participated in the process of formulating a departmental policy; or, a Minister or a high official may declare a policy beforehand, and later he may be called upon to adjudicate upon a controversy in which the very same policy is in issue. In modern

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administrative process, functions of administration, policy-making and adjudication are often mixed up. A difficult question to answer is whether an official is to be deemed disqualified from acting as an adjudicator because of policy bias. On the one hand, it may be argued rather plausibly that if an official is already committed beforehand to a policy, then the whole purpose of the hearing exercise may be frustrated because one of the purposes of hearing is to better inform the administrator's mind as regards the issues involved so that he may come to a right decision. This can happen if the adjudicator has an open mind. The official is less than objective in considering the issues arising out of the policy in question. On the other hand, it may be argued that in many cases, the idea behind hearing is not so much to do justice in absolute terms between an individual and the department concerned, as to implement departmental policies. In fact, as noted above, one of the main reasons to establish the system of adjudication outside the court-system is to apply policy and law to controversies rather than law pure and simple. The truth is that in the modern administrative age, where hearing functions are handled by administrators, it is extremely difficult to insulate the officials discharging adjudicatory functions completely from policy bias and, to some extent, their pre-disposition towards departmental policies has to be accepted as a fact of life. Such a situation can be redeemed somewhat, and some safeguard against policy bias ensured, by appointing autonomous tribunals outside the departments, or by appointing independent hearing officers who may have nothing to do with the formulation and implementation of departmental policies.58 But, in practice, such a sophisticated development has not so far occurred in India (except that some tribunals have been established)59, and it may happen only in the future. For the present, it is inevitable that officials who have consciously or unconsciously imbibed departmental policies must continue to adjudicate. Some policy bias is therefore inherent in the present-day system. Accordingly, a good deal of tolerance towards operation of policy bias has been developed by the courts as, otherwise, the whole adjudicatory system would become unworkable. The difficulties inherent in the situation can be illustrated in a telling manner by reference to an English case, Franklin v. Minister of Town and Country Planning.60 The British Parliament enacted the New Towns Act, 1946. The power under the Act lay with the Minister to confirm the order designating the new town after a local public inquiry had been held. In the instant case, the Minister of Town and Country Planning determined that Stevenage should be the first of the new towns under the Act. A public inquiry was held and the order was confirmed by the Minister. Before, however, the Minister did so, he had visited Stevenage and made a speech at a public meeting. When there was some jeering at the meeting, he declared, "It is no good jeering--it is going to be done." The order of the Minister was sought to be challenged on the ground that by this positive statement of policy, he had in effect declared that his mind was made up in advance and that he was therefore disqualified from considering the subsequent report of the inspector fairly and without bias. The case went through three courts which reached three different conclusions. (i) The High Court held that the law required impartial consideration and that, in fact, it had not been given; (ii) The Court of Appeal held that the law required impartial consideration but that it had been given and, further, that the statute prescribed the procedure which had been followed and so no question of bias arose; (iii) The House of Lords held that no impartial consideration was needed as the Minister's function was 'administrative' and not quasi-judicial; the Minister may be 'biased' but so long as he observed the procedure laid down in the Act, his action was not invalid. According to Lord Thankerton, the only question was whether in fact the Minister "did genuinely consider the report and the objections." The case of the appellants failed "in that they have not established either that in the respondent's [Minister's] speech he had forejudged any genuine consideration of the objections or that he had not genuinely considered the objections at the later stage when they were submitted to him." The decision of the House of Lords on the question of bias has been characterised as unsatisfactory, for it amounts to saying that all the procedural formalities by way of inquiry etc. prescribed by Parliament are useless in effect; Minister's decision cannot be questioned even if he had already closed his mind and he thought merely of his own policy and of nothing else. The case has been characterized as the "low-water mark of administrative law."61 On the other hand, the difficulties in the situation can be appreciated. The Minister has to have a policy; he has to advocate it and support it and Parliament confers the power on the Minister. Thus the law envisages in the structures created by it, some departmental bias to operate in the decision-making process. Under the law nobody else except the Minister could take the decision in question.62 It needs to be emphasized here that the general proposition stated by the House of Lords in Franklin that the rule against bias does not operate in the area of an administrative function is no longer true because of the emergence of the doctrine of fairness. In India, the rule against bias has been applied in the area of

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appointments to public posts which is regarded as an administrative function.63 So far as the courts are concerned, they do not ordinarily regard policy bias, to some extent, as an infirmity in an adjudicator. A rule has thus come into vogue that ordinarily mere policy or official bias does not disentitle an official from acting as an adjudicator in a dispute in which either the departmental policy may be in issue, or the department may be a party. An official is not disqualified to act in an adjudicatory capacity merely because he is a limb of the government department which is a party to the dispute which he is called upon to decide. The reason, as stated above, is that if he were to be so disqualified, then the whole of the present day edifice of adjudicatory system will crumble to the ground. Therefore, if an official arrives at a decision in a matter, after giving full consideration to the issues involved, and following natural justice in all respects, then merely because he is connected with a department which is also a party to the dispute, the proceedings taken before him are not vitiated. However, there are limits to this rule. An official may become disqualified from acting as an adjudicator, and deciding a dispute involving a policy, if he has personally identified himself too much with the formulation of, or has exhibited an abnormal desire to uphold or implement, the policy in question. In such a situation, it could be said that his mind is closed to the issues arising before him and that he is no longer fit to sit as an adjudicator.64 Thus, only a blatant or very strong policy bias operates as a disqualification. Cases where the courts have disqualified officials from acting in an adjudicatory capacity on account of strong policy bias are rare indeed.65 An example of this is furnished by Blaze66 where a clear case of bias arose in the following fact-situation: The regional officer of a nationalised bank, acting as the estate officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 197167, passed an eviction order against a tenant occupying a portion of the bank building. The bank was interested in having the premises vacated for its own purposes and therefore had initiated the eviction proceedings against the tenant. Earlier the bank had terminated the tenancy and asked the tenant to leave. As the tenant did not comply with the bank's wishes, the regional officer of the bank, acting as the estate officer, passed the impugned order of eviction, The tenant challenged the order inter alia on the ground that the estate officer made two orders on the same day. One a type written one which was served on the petitioner, and the other in manuscript which was kept on the file. The contents of the two orders differed. The Court assumed that perhaps the typed order was kept ready before the proceedings were completed. Also, the estate officer who passed the eviction order was none else than the regional officer of the Bank which was interested in getting the premises vacated for its own use. Quashing the eviction order, the High Court observed: "In the present case, from the very start of the proceedings, the impression gained was that the dice was loaded against the petitioner. No amount of evidence or argument for the respondent could remove the impression or establish affirmatively, that the end result of the estate officer was a product of detachment and impartiality. The likelihood of bias animating the mind of the estate officer was inevitable and its exercise was very much conscious and not unconscious."

The Blaze case is a sad commentary on the deplorable way in which adjudicatory functions are at times discharged by administrators. The department of transport of the Government of Andhra Pradesh drew a scheme for nationalisation of certain bus routes. Under S. Section 68C, Motor Vehicles Act, 1939, when a state transport undertaking was of the opinion that for providing an "efficient, adequate, economical and properly coordinated" road transport service, it was necessary in public interest that road transport should be run by the undertaking to the exclusion wholly or partially of other persons, it could prepare a scheme and publish the same in the official gazette. Any person affected by the scheme could file objections before the State Government which, after considering the same and after giving an opportunity to the objectors as well as the undertaking to be heard in the matter, may approve or modify the same. The Supreme Court held in Gullapalli I68 that the hearing prescribed by the statute was to be of the quasi-judicial type as there was a contest, a lis, between the undertaking and the objectors insofar as the proposed scheme would affect the proprietary rights of the objectors. Thus, there was a triangular type of situation--proposal by the undertaking, opposition by the objectors, and decision by the government. Accordingly, the Court ruled that the Secretary of the transport department was disqualified to hear objections against the proposed scheme, as he was an integral part of the department concerned and, therefore, he was too much involved in the making of the scheme in

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question. He could not, therefore, have an open mind to hear objections against the scheme in question. The Secretary had policy bias and so he was disqualified to hold the inquiry. Under the law, there was no legal compulsion to assign the task of hearing objections against the proposed scheme to the Secretary. The function could have been assigned to any other competent official. Therefore, the Court insisted justifiably that the functions of policy-making and hearing of objections against the policy be separated. It may be interesting to compare Gullapalli I with Franklin. There are two significant differences between these two cases. (1) In Franklin, the power to sanction new towns was specifically vested by law in the Minister and, therefore, in spite of policy bias he could not possibly be declared incompetent to discharge a statutory function assigned to him;69 and (2) the inquiry in Franklin was held by an inspector who had no policy bias. On the other hand, in Gullapalli, the inquiry itself was held by the Secretary of the Department concerned having policy bias and there was no legal compulsion to assign the function of hearing objections to the Secretary. The function could have been assigned to any other competent official. Therefore, the court insisted justifiably that the functions of policy-making and hearing of objections be separated from each other. But since Gullapalli I, the Supreme Court has continuously diluted the stance adopted by it in that case. For instance, in Gullapalli II,70 when the function of hearing objections was discharged by the Minister instead of the Secretary to the transport department, the Court saw no objection in the procedure on the premise that the Minister was not a part and parcel of the department concerned with the making of the policy in question while the Secretary was. In the words of the Court, the Secretary "is a part of the department" while the Minister "is only primarily responsible for the disposal of the business pertaining to that department."71 The Court thought that while the Secretary of the department being too much involved with departmental matters would not be able to bring an open mind to bear upon the objections raised against the scheme, the Minister may be able to do so. In the particular case, perhaps, it was a fact that while the Secretary had taken a leading part in formulating the scheme against which he himself heard the objections, the Minister was not so much directly involved with the specific matter. The case may be regarded as an authority for the proposition that an official who has identified himself too much with the departmental policy or a cause may not be the best person to hear objections against that very policy and that someone else less committed to that policy should be entrusted with this task. But, as a general proposition, the distinction between a Minister and a Secretary appears to be rather tenuous. A Minister is as much an integral part of the department as any other civil servant. In fact, under the Business Rules, civil servants are merely the agents of the Minister and are required to carry out his orders and functions under his directions. In a parliamentary form of government, a Minister is ultimately responsible for the acts of commission or omission of the civil servants under his control. In policy-matters, a Minister cannot have a more open mind than the Secretary to the department. It can be argued plausibly that being a civil servant, the Secretary is committed much less to policy matters than the Minister. The role of a Minister as an active policy-maker is more predominant than that of the Secretary in the department, and, therefore, a Minister may have a much stronger policy bias than the officials in his department who merely implement and execute the Minister's policies. Undoubtedly, Gullapalli II dilued to a great extent the efficacy of the ruling in Gullapalli I. In several earlier High Court cases, no such distinction had been maintained and administrative proceedings were not quashed even though the hearing authority was a civil servant and not the Minister.72 In subsequent cases the Supreme Court appears to have further relaxed its attitude on the question of disqualification arising from policy bias and the Court has shown a further liberality of approach in this respect from the departmental point of view. In Kondala Rao,73 the Minister of Transport heard objections against some schemes of nationalisation of bus routes prepared by the transport corporation. The Minister, a few days earlier, had presided over a meeting of an official committee which had decided in favour of nationalisation of some of these routes. The hearing by him was sought to be challenged on the ground that he had already pre-determined the issue and so was disqualified to decide the dispute between the petitioner and the transport undertaking. The Court rejected the argument holding that the transport undertaking was a statutory corporation and though subject to some government control, yet was not a government department and the government decided the matter in the exercise of its statutory duty. The committee's decision, the Court held, was not a final and irrevocable decision. It was only a policy-decision which meant that the committee advised the government to implement the policy of nationalisation of bus services and this decision did not involve either expressly or by necessary implication a pre-determination of the issue; it only meant that the policy would be implemented subject to the provisions of the Act. The Court adopted the

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following remarks from an earlier case.74 "It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is not open to challenge on a presumption of bias. The minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will not be liable to be called in question, merely because he is a limb of the Government."75

The Court treated the matter more as a question of 'personal bias' rather than that of 'policy bias' as is clear from the following observation of the Court: "It is not suggested that the Minister in charge of the concerned portfoilo has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has not been established that the Minister in charge of the portfolio of transport had personal bias against the operators of private buses".. .

In the Mudaliar case,76 the Government of Madras took a policy decision to nationalise certain bus routes. The government then appointed an ad hoc committee to work out the details for implementing the policy decision. One of the members of the committee was the Secretary to the Government, Home Department. After submission of the report by the committee, schemes were published, under S. Section 68C of the Motor Vehicles Act, by the Secretary, Department of Industries, acting under the Rules of Business. Objections against the schemes were heard by the Secretary, Home Department, who was authorised to do so under the Rules of Business and who was a member of the committee which initially formulated the scheme. Objections were raised to such a hearing on the ground of policy bias. It was argued that the Home Secretary had participated in the policy decision as a member of the ad hoc committee and then he himself heard objections against the very scheme in the formulation of which-he had participated, and thus he acted as a judge in his own cause. However, relying on Kondala Rao, but without referring to Gullapalli I, the Supreme Court rejected the objections to hearing on the ground of bias by the Secretary, Home Department.77 The Court argued that the role of the committee was only advisory in character and that it did not involve a pre-determination of the issues involved. This pronouncement of the Court is somewhat debatable. Konadla Rao was not applicable to the present fact-situation as that case referred to a Minister who, according to the Court itself, is not regarded as an integral part of the department.. Here was involved an official who, unlike the Minister, is regarded as an integral part of the department. The procedure in Kondala Rao was less objectionable than in Mudaliar. In Kondala Rao, the scheme was formulated by the Transport Corporation and the Minister was not so much committed to it. The Minister had only chaired the meeting which took a policy decision to nationalise certain bus routes. It did not frame any scheme to implement this policy decision. Therefore, while the Minister was committed to the general policy of nationalization of bus routes, he was not committed to any specific scheme. But, here, the Home Secretary was actively engaged in formulating the scheme against which he heard the objections. This does not seem to be proper. It would be difficult for a person in his position to hear objections with an open mind because his mind would be dully committed to the scheme prepared by him. Such a person cannot dully and objectively assess the validity of the objections raised against the scheme of which he himself was an author. In such a situation, a 'reasonable man' would have enough cause to feel concerned about the matter. The test of real likelihood of bias is dully satisfied here. Whatever the judicial rationalization, the fact remains that the hearing officer had a strong policy bias in favour of the scheme in question as he had participated in formulating the same as a committee member and could hardly bring to bear an objective mind in considering objections against it. In such a situation, a reasonable man had enough cause to feel concerned about the objectivity of the Home Secretary as a hearing officer. In Prakash Chandra Sahu v. Managing Director, O.R.T. Co.78 it was argued that the Minister of Transport having initiated and inspired the scheme of nationalisation of certain bus routes in the State as a Minister, and having thereby pre-judged the matter, was disqualified to hear objections to the scheme. Referring to Kondala Rao, the High Court answered in the negative saying that the State Government or any other authority authorised by it deciding a dispute under S. 68-D(2) between the State Transport Undertaking and the objector discharges only its 'statutory function'. The Court asserted that in order to prove personal bias there must be reliable evidence adduced by the parties. The Court went on to the extent of asserting that

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even if the State Government determines earlier the policy of nationalisation in the scheme of transport service yet that would not amount to bias so as to disqualify the concerned Minister from hearing the objections or according approval to the scheme. The above case cannot be regarded as laying down good law. Specifically, about the procedure laid down in S.68-D(2), M.V.A., it has been characterised as quasi-judicial in nature and its purpose is to enable the persons affected by the scheme to make an effective representation against the proposed scheme of nationalisation. Also, if the objectors point out any lacunae in the scheme, the same can be corrected by the government before it approves the scheme. The function of hearing the objections against the proposed scheme is thus of crucial importance. It promotes consultation between the Administration and the concerned persons in the matter of policy-making and thus introduces an element of democratisation in bureaucratic procedures. Such an inquiry also promotes the principle that a citizen has the right to be heard before an administrative decision is taken which may adversely affect him. If this procedure is to have its full advantage, and is to serve as an effective instrument of public consultation and participation in policy-making, then it is necessary that hearing takes place before a person who has an open mind and does not have any preconceived notions about the scheme in question so that the merits and demerits of the scheme may be assessed fully and objectively. Otherwise, hearing becomes an empty ritual which serves no useful purpose either from the government's or the objectors' points of view. Therefore, the law laid down in the above cases needs to be reconsidered by the highest court with a view to ensuring that the statutory procedure of hearing objections remains an effective instrument of public consultation as regards the viability of the proposed scheme. What is being said here concerns only the stage of hearing objections and not the stage of approving the scheme after considering the objections. That function may be discharged by the Minister concerned even if he was the promoter or initiator or maker of the initial scheme of nationalization. The statute confers the authority to hear objections on the State Government as such, and not on any specific individual. Then why is it not possible for a government to appoint a high ranking officer having an open mind and being unconnected with the scheme to hear objections? After hearing the objections, he can make a report to the Minister who can then consider the objections and decide whether the scheme is to be accepted as it is, or needs to be modified. The statute does not specifically say that the concerned Minister must hear the objections; there is no legal compulsion on the Minister to himself hear the objections personally and, therefore, there is no warrant for the view that he performs a statutory function when he hears the objections. The Orissa High Court decision may be faulted on another ground as well: the Court ignored the well established principle that actual proof of bias is not necessary. The general rule about bias is not that actual bias must be proved. The reason for not insisting on actual proof of bias is that bias being a mental condition, it is extremely difficult to prove, on a balance of probabilities, that a person required to act in an adjudicative capacity was in fact biased. Bias is an attitude of mind leading to a predisposition towards an issue. Bias may arise unconsciously. The person himself may be unaware of his predisposition. It is not therefore necessary to prove the existence of bias in fact. Accordingly, the Court was not correct in saying that to prove bias there must be reliable evidence adduced. Because of this circumstance, the law looks rather to the 'likelihood' of bias arising from the factual situation in which the particular adjudicator is placed. The very fact that the Minister was involved with the framing of the scheme should be sufficient to raise in the mind of reasonable men a reasonable likelihood of bias if the Minister sits to hear objections against that very scheme. In Hindustan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi,79 the corporation was acquiring land for laying down a pipeline. The Central Government appointed one of the Corporation's employees as the competent authority for the purpose under the relevant Act and for assessing compensation for right of user in land acquired by the corporation.80 The Supreme Court refused to accept the argument that the government ought not to have appointed an employee of the corporation for the purpose as the corporation was itself an interested party in the dispute relating to compensation. The Court observed: "We cannot accept the contention ... that merely because a person is an employee of the corporation, he would have a bias in deciding the compensation..."

While a party can raise the ground of bias against an appointment of an individual officer as competent authority on sufficient material placed on record in this regard he cannot be disqualified from acting as such

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only because he is an employee of the corporation which has to pay compensation. The Court argued that if this argument were to be taken to its logical conclusion, the result would be that no employee of the State Government or Central government could be appointed as competent authority where petroleum and mineral pipelines are to be laid for a project initiated by the State or Central Government. "It would be too broad a proposition to extend the theory of bias to exclude persons only because such person draws the salary from the bodies like public corporation, State Government or Central Government." In the instant case, however, the Court accepted the argument that, on facts, the competent authority might have been biased against the respondent while determining compensation. Similarly, under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, to evict an unauthorised occupant from the premises of a nationalised bank (statutory corporation), the general manager thereof was appointed as the estate officer.81 The Calcutta High Court rejected the argument that thereby the bank constituted itself as a judge in its own cause. The court argued that the officers of a statutory body discharge statutory duties. "Therefore, there is nothing wrong in appointing such an officer of a statutory authority to a quasi-judicial office".82 However, though judicially sanctioned, the system cannot be characterised as a good system as it does not always operate impartially. The defects of such a system were tellingly exposed in Blaze83 and also in Hindustan Petroleum.84 The Court's view takes into account only administrative convenience. It is difficult to envisage that an employee will not tilt in favour of his employer and not protect its interests. It is one thing for the Court to say that it is helpless as the system has statutory sanction, but it is quite another thing to argue as the Court has done in the instant case, that the system is not intrinsically faulty. It is, therefore, necessary to change the system so as to provide for adjudicators from outside the interested organisation with a view to eliminate any suspicion of bias. The courts having failed to achieve such a desirable result through the case-law, the same result can be achieved by change of administrative practices, or suitable amendments in the Rules of Business,85 or, in the last analysis, by change in statutory law. In this regard the best model to emulate is the American model which is referred to below.86 Under Schedule X to the Constitution, power to adjudicate whether a member of a Legislative House has become disqualified from membership of the House owing to defection from one political party to another has been vested in the Speaker of the House. The validity of the provision was challenged in Kihota Hollohon v, Zachilhu,87 on the ground that the Speaker depends on the support of the majority party for staying in office; he remains a member of the political party which elects him to the office and, therefore, he would be subject to political bias as his decision cannot be free from political pressures and his functioning cannot be free from reasonable likelihood of bias. It was therefore argued that an "independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy which is a basic feature of the Indian constitutionalis." But the Supreme Court rejected the argument in a closely divided decision (3:2) on the ground that the office of the Speaker is one of dignity and impartiality; the office is held in the highest respect and esteem in parliamentary traditions. The Speaker holds a pivotal position in the scheme of parliamentary democracy and is the guardian of the rights and privileges of the House. He takes far reaching decisions in the functioning of parliamentary democracy and thus he is expected to decide the question of member's disqualification impartially, objectively and in a non-partisan manner. Vesting of adjudicatory power regarding disqualification arising out of defection of members of the House in such a constitutional functionary should not be considered exceptionable. In the words of the majority: "It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found to have discharged their functions not in keeping with the great traditions of that high office."

The minority view, on the other hand, was that the law in question was invalid because it made the Speaker's decision as 'final' and did not provide for any appeal to any outside agency against the Speaker's order and thus compromised a fundamental feature of the Constitution.88 In the words of the minority Judges:89 "The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out."

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It may however be pointed out that the majority decision is based on abstract and theoretical considerations, and not on pragmatic realities in India. Though in theory the Speaker's office is regarded as one of the dignity, in practice, the situation is different. In India, Speaker's decisions are invariably challenged by one party or another not only on the floor of the House but even outside in the courts. In several cases, Speakers' decisions have been quashed by the courts as being invalid qua the law or the Constitution. Partisan decisions by Speakers of State Legislatures constitute a common phenomenon. Even in the instant case, the Speakers' decision was quashed by the Court on another ground. The very fact that the Supreme Court has held the Speakers' decision on the question of disqualification as being subject to an appeal to. Itself under Art. 136, shows that the Court does not wish to leave the Speakers absolutely free to take decisions under the Anti-Defection law. On the whole, therefore, the minority view is preferable to the majority view in Kihota. In short, the concept of policy bias remains nebulous in India. Rather than develop the concept of policy bias, the courts have sought to minimise the significance of such bias in adjudication. The courts are reluctant to apply the concept, except in situations of very obvious and blatant policy bias, as they are afraid that wider application of the concept may strike at the root of the present-day system of administrative adjudication. However, in the interests of fair adjudication, it will be better to avoid situations where policy bias may operate, otherwise, hearings may degenerate into empty formalities and much of the value of public participation in policy making may be lost. Unless, absolutely essential, the two capacities of policy maker and decision-maker ought to be kept separate. On the whole, it may be sound administratively as well as procedurally, if departments appoint separate hearing officers having no involvement with policy-making. Following the Supreme Court verdict in Gullapalli I, some States did assign the task of hearing objections against schemes of nationalisation of bus routes to persons outside the concerned department, e.g., to the legal rememberancer.90 This should become the common approach. This however is an area where the courts by themselves may not be able to achieve much. They can, and they,should, veto a very extreme case of policy bias. But, more than that, it is for the legislature to create administrative structures in such a manner as to reduce the chances of policy bias and improve the opportunity for objectivity in decision-making as far as possible. To the extent possible, the departments themselves ought to avoid policy bias by suitably tailoring their administrative practices. It may be worthwhile to mention here a case from Singapore, Alkaff & Co. v. The Governor-in-Council,91 where the concept of policy bias was applied. The Commissioner of Lands was an ex officio member of the Singapore Improvement Trust. The Trust approved certain backlane schemes. The Trust then applied to the Governor-in-Council for approval of the schemes. Under the law, an inquiry was to be held before the Governor-inCouncil could accord his approval. Therefore, the Commissioner of Lands was appointed to enquire and report on the schemes proposed by the Trust. After inquiry, the Commissioner recommended approval of the schemes and, accordingly, the Governor-in-Council issued the necessary orders approving the schemes. Quashing the orders, the Court held that, as a member of the Trust, the Commissioner had approved the schemes and thereafter his appointment to enquire into the merits of those schemes could result in suspicion that justice might not be done. The Court emphasized that "it is beside the point" that, in fact, the Commissioner conducted his inquiries fairly and impartially and that it was essential that justice be so administered as to satisfy reasonable persons that the tribunal was impartial and unbiased. While the courts in India do show a good deal of tolerance towards policy bias, they have made progress in another direction, viz., they do seek to ensure that there is not too much identification between an adjudicator and his department in matters of adjudication. The courts have been able to free, to some extent, the adjudicator from the control of his department or his senior officials while discharging his adjudicatory functions. The courts have been able to evolve the principle that the department, or his senior officer, cannot dictate to a junior officer as to how he should discharge his adjudicatory functions. The courts insist that in adjudicatory matters an adjudicator must exercise his own mind and not follow the dictates of his seniors. It is not open to the department to control the functioning of an adjudicatory authority in any specific matter. This norm seeks to introduce some impartiality and objectivity in adjudicatory proceedings. The courts have gone further than this and even held that general directions cannot also be issued by a department to adjudicatory bodies, and that such bodies should exercise their own judgment.92 Some attempt has been made in the U.S.A to tackle the problem of official bias. The Administrative Procedure Act, 1946,93 seeks to effectuate physical separation internally within an agency between the

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functions of hearing objections or representations against some proposed policy and the making of the policy. There are separate hearing officers, known as administrative law judges, who are independent of the agency concerned; they can be removed only for good cause established and determined by the Civil Service Commission--an independent body by itself. Some of the other provisions applicable to administrative law judges (ALJ's are: (i) They, may not perform any duties inconsistent with their duties and responsibility as ALJ's (ii) ALJ's are to be assigned to cases in rotation so far as practicable; (iii) when conducting a hearing, an ALJ is not responsible to or subject to supervision or direction of any agency employee; (iv) ALJ is not to consult any person or party concerning a fact at issue in the hearing, unless on notice and opportunity for all parties to participate ; (v) Their pay is controlled by the Civil Service Commission. Where an objector is entitled to a hearing, the hearing is to be held before an administrative law judge. This officer then propounds a draft decision on the results of hearing. This is to be notified to the parties and the final decision must take the draft decision into consideration. The final stage may combine adjudication and policy making but this is the best arrangement which has been found possible for the present.94 The administrative law judge is the central figure in normal administrative adjudication. The provisions of the A.P.A., mentioned here, seek to ensure the impartiality and independence of administrative law judges. As Schwartz observes: "The key to the operation of the federal APA is the independence of the hearing officer. The APA is structured so as to assure that he will exercise his independent judgment, free from pressures by the agency."95 In England, such inquiries are held before inspectors. The Franks Committee recommended that the inspectors who hold enquiries on behalf of the departments, 'be placed under the control of a Minister not directly concerned with the subject-matter of their work'. This would most appropriately be the Lord Chancellor. The Committee emphasized:96 "This change, by no longer identifying the inspector in the minds of the objectors with the Department of the deciding Minister, would emphasize impartiality at an important stage of the adjudication and thus do much to allay public misgiving."

But the Government did not implement this recommendation of the Franks Committee and the inspectors still remain an integral part of the departmental organization.97 A recent case may be mentioned here which shows the correct judicial approach to situations involving policy bias.98 Applications were filed before the Karnataka State Road Transport Authority [KSRTA] by some bus operators for renewal of their permits. The Karnataka State Road Transport Corporation [KSRTC] also made applications to KSRTA for grant of permits on the same routes. The bus operators approached the High Court for a writ of prohibition against the Transport Commissioner restraining her from acting as the chairman member of KSRTA on the ground that she was a member of the Board of Directors of KSRTC. The High Court ruled that the Transport Commissioner, so long as she continued to be a member of the Board of Directors of the KSRTC, should be restrained from functioning as chairman/member of KSRTA. Reference may also be made in this connection to an English case, Hannam v. Bradford City Council.99 H was a teacher in a school which was maintained by the council. The board of governors of the school terminated H's contract. The council had power to bar the dismissal of H. The appropriate committee of the council decided not to exercise that power. This committee consisted of 10 members, three of whom were members of the board of governors of the school in question. These three members had not attended the meeting of the school board of governors at which it was decided to terminate H's contract. However, the decision of the council committee was quashed on the ground of bias by the Court of Appeal. "When one is used to working with other people in a group or on a committee, there must be a built-in tendency to support the decision of the committee, although one tries to fight against it". Said one of the judges: "The governors did not, on donning their committee hats, cease to be an integral part of the body whose action was being impugned, and it made no difference that they did not personally attend the governors' meeting". Where it was found that the preliminary inquiry committee, which is normally set up to ascertain facts, was set up for collecting "a menargerie of witnesses who had a grudge against a member of the Rajasthan Higher Judicial Service", the Apex Court was critical of such an approach and held that the report of the Committee was bias.1 In Suraj Parkash Gupta v. State of J&K,2 the Supreme Court held that by not making direct recruitment after 1984, by restricting direct recruits to 10% rather than permitting 20% and by

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deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Govt. had definitely acted in a biased manner. Where the two complainants against the delinquent constable were shown to be not traceable, without making any effort to trace them and produce them as prosecution witnesses so as the delinquent could cross examine them; non-production of them, though being the fault of the department, was ascribed to the delinquent, finding him guilty in an arbitrary manner though the evidence of the main prosecution witness nullified the allegation against the delinquent, it was held that the enquiry officer was biased in favour of the department and was carrying out the command of some superior officer.3 A Selection Committee, headed by a nominee of the Chief Justice of India, is constituted for the purpose of selecting a Member of the Company Law Board. The Selection Committee selected a certain person for the same and put two names in the reserve panel. Thereafter, the Appointments Committee was to act on such recommendation of the Selection Committee. The secretary to the Appointments Committee, whilst forwarding a name from the reserve panel, wrote an adverse note against the selected person commenting that he was not a fit person for the post in question besides making certain allegations against him. The Appointments Committee rejected the name of the selectee and directed for fresh proposal for the same. The Secretary withheld the representation of the selectee to the Appointments Committee against such rejection and placed it before the Appointments Committee only when the candidate next below the selectee was exonerated by the disciplinary authority of the charges against him. Thereafter, the Secretary forwarded both the names with fresh adverse comments against the selectee and recommendation in favour of the candidate the next below him. The Apex Court held that in view of the facts, the candidate next below the selectee was unduly favoured and the candidate selected had been deprived of the appointment which led to only conclusion that there was rank favouritism.4 a) Combining functions of Prosecutor and Judge Closely related to the problem of departmental bias is another serious problem, viz., combining the functions of prosecutor and judge in one and the same department. Often what happens in modern times is that an administrative agency may be given the power to initiate proceedings against alleged violations of law and also to sit in judgment over the matter. When such a dual function is discharged by one and the same official then, as stated earlier, this is a clear case of bias unless clearly permitted by legislation. However, if the person adjudicating is different from the person prosecuting, then the proceedings may not be flawed on account of bias merely because both the functions are being discharged within the same department. This may be illustrated by the following case. In Hari v. Deputy Commissioner of Police,5 an externment order served by the Deputy Commissioner of Police under S. Section 57 of the Bombay Police Act, 1951 was challenged on the ground that the proceedings were initiated by the police and it was the police which was the judge in the case also, and that it was against natural justice that the prosecutor should be the judge. The Supreme Court, however, pointed out that the evidence or material on the basis of which a person could be proceeded against was collected by a police official of lower rank. The proceedings for externment could be initiated by a police officer above the rank of the inspector who had to inform the person proceeded against of the general nature of the material allegations against him. But, the order of externment could be passed only by a commissioner of police or a district magistrate. Hence, the satisfaction was not that of the person prosecuting but that of the police officer of a higher rank. It, therefore, means that it does not matter if both the prosecution and conviction are done by one and the same department, so long as the two functions are discharged by separate officers. In disciplinary proceedings against the employees, it happens every day that the department itself may hold the preliminary investigation as well as the enquiry at which the charges are sought to be proved and the delinquent official is given the right and opportunity to defend himself. All this happens under the roof of 'the same department though, of course, the officer who conducts the preliminary investigation would not himself sit in final judgment over the charges. The difficulty in combining the adjudicating and prosecuting functions in the same agency is that the accused may be prejudiced; he may not get fair treatment as the "convicting" part of the agency may be prone to accept whatever proof is produced by its other part sponsoring the conviction. In the United States, the problem is sought to be tackled somewhat by the Administrative Procedure Act seeking to effect an internal separation within the agency concerned to minimise the danger arising out of combination of functions of

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prosecution and adjudication. Thus, an employee engaged in performance of investigative or prosecuting function for an agency in a case is not to participate or advise in the decision-making process except as a witness or counsel in public proceedings. As stated above, hearing officers have been made independent of the agency concerned. b) Prior utterances and pre judgment of issues Sometimes the Minister or the official concerned may announce before hand the general policy which he intends to follow. Will such a statement disqualify him from acting as the deciding authority on the ground that this indicates his partiality to the issues in dispute? It is, however, a ticklish matter. On the one hand, it may be argued that, from a practical point of view, such prior statements of policy ought to be encouraged, as these create some certainty in an uncertain situation and individuals may be able to regulate their conduct accordingly.6 On the other hand, it may also be plausibly argued that if an official has already made up his mind regarding the policy to be followed in the issues involved and to be raised at the hearing, then the very purpose of hearing may be frustrated. The purpose of hearing is to better inform the Administration about the issues so that it may take a correct decision. In one case, in an enquiry into objections to a scheme prepared by the Transport Department under S. 68-D(2) of the Motor Vehicles Act, 1939, the enquiry officer did not consider the objections raised but decided to approve the scheme on the basis of considerations of policy. Characterising the enquiry as farcical because the mind of the enquiry officer was already foreclosed as regards the objections raised to the scheme at the inquiry, the High Court quashed the scheme and held that the decision to approve the scheme or not should be based not on considerations of policy but on the conclusions which the inquiry officer comes to with regard to the objections.7 The correct legal position appears to be that unless a prior policy statement shows a "final and irrevocable" decision and foreclosing of the mind of the authority as to the merits of the case before it, it would not operate as a disqualification to adjudicate.8 It is at times argued that if such statements are to disable an official from acting as the adjudicatory authority on the ground of bias, then on the same analogy, the same judges should not be permitted to try the same issues more than once which they frequently do, and that a higher standard cannot be expected of the quasi-judicial bodies than the courts. Nevertheless, the answer to this argument is that a judge has no personal interest in the outcome of the controversy, and he may still be prepared to hear arguments and reconsider the point of law already settled, with an open mind, whereas the same is not true of an administrator because of his personal involvement in the policy to be pursued, and, therefore, in his case there is a danger of the hearing becoming a sham. An administrator is not as disinterested as a judge in what he does or decides. As a practical solution, one may say that so long as the adjudicator's mind does not seem to be "irrevocably closed," he may decide a matter even though his predisposition to certain issues is known to the parties. In an oft quoted statement,9 Frank, J., of the United States points out: If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of judge, then no one has ever had a fair trial and no one will. The human mind, even, at infancy, is no blank piece of paper. We are born with predispositions.... Much harm is done by the myth that, merely by.... taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.10

A distinction may, however, be made between pre-judging of facts specifically relating to a party, or a controversy, and pre-conceptions or predispositions about general questions of law, policy or discretion affecting a large number of persons. The former should disqualify but in the latter case a greater leeway may be permissible for having some preconceived opinions does not mean that he will not listen fairly to all the evidence.11 Thus, if officer A has already expressed an opinion that officer B is guilty of the charges levied against him and that he be dismissed from service, then A is disqualified from later holding an inquiry against B in those very charges, as he has already pre-judged the charges and expressed his opinion before the hearing. He already has a closed mind. In K.S. Rao v. Hyderabad,12 it was held that the enquiry officer was not qualified to conduct hearing against the petitioner for his removal from service, since prior to the enquiry he had expressed a strong view that he should be dismissed from service on account of his abnormal mental condition. The High Court stated that it is a fundamental principle of natural justice that the officer selected to

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make an enquiry should be a person with an open mind and not one who has already pre-judged the issue. The Deputy Superintendent of police in his charge-memo to two constables categorically expressed his opinion that they "had abused their position and brought discredit to the department". It was held that the Deputy Superintendent was disqualified to hold the inquiry.13 Where an officer had expressed definite views on the conduct of a delinquent officer he would not be permitted to hold an enquiry, as it would produce a fear or apprehension in the mind of the delinquent that he could not hope to get a fair trial. However, when in a factual situation various, separate and distinct issues arise, a person who has already decided one of such issues may not be incompetent to decide the other issues; judgment by him on one issue does not amount to pre-judging the other issues. To illustrate this point, in one case because of defalcation by the manager of a co-operative bank, the Registrar of the Co-operative Societies issued a show-cause notice to the managing committee as to why it should not be suspended. He later suspended the committee on charges of mismanagement. A few shareholders then claimed the entire money from the members of the managing committee. The Registrar himself undertook to arbitrate in the matter as he could do under the relevant law. It was argued that the Registrar was disqualified to act as an arbitrator in the matter as he had already unequivocally expressed his opinion against the managing committee. The Supreme Court rejected the contention and held that no inference of bias as such could be drawn against the Registrar from the act of his removing the managing committee as the two proceedings, removal of the committee for mismanagement and assessment of the individual liability of the committee members, had nothing in common. The fact that the Registrar had removed the committee was no reason to hold that he would be biased in investigating the individual responsibility of various members thereof. It was also held that the fact that the Department of Co-operative Societies exercised a general control over all co-operative societies, and that the Registrar was the head of the department, would not also disqualify him.14 In another case, from the haste shown by the Registrar in superseding a Co-operative bank and other circumstances, the High Court concluded that he had prejudged the issue and was guilty of bias.15 5. BIAS ON ACCOUNT OF JUDICIAL OBSTINACY Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias etc. In the instant case, there is a new form of bias, namely, bias on account of judicial obstinacy.16 All judicial functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial proceedings are held in open Court to ensure transparency. Access to judicial record by way of inspection by the litigant or his lawyer and the facility of providing certified copies of that record are factors which not only ensure transparency but also instil and inspire confidence in the impartiality of the Court proceedings.17 Unlike suits, proceedings under Article 226 of the Constitution are not conducted strictly following the provisions contained in the Code of Civil Procedure but are held in accordance with the procedure devised by the High Court itself under which a fair hearing is provided to the parties concerned before a decision is rendered. In other words, principles of natural justice are observed strictly in letter and spirit. One of the requirements of natural justice is that the hearing should be done by a judge with an unbiased mind.18 An essential requirement of judicial adjudication is that the judge is impartial and neutral and is in a position to apply his mind objectively to the facts of the case put up before him. If he is predisposed or suffers from prejudices or has a biased mind, he disqualifies himself from acting as a judge.19 But Frank, J. of the United States in Linahan, In re20 says: "If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions... Much harm is done by the myth that, merely by ...taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine."

If a judgment is overruled by the higher Court, the judicial discipline requires that the judge whose judgment is overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment. Even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that the judgment of the higher Court which has overruled that judgment, not only binds the

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parties to the proceedings but also the judge who had earlier rendered that decision. That judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy.21 In S.K. Warkoo v. State of J&K22 the Apex Court recorded its strong disapproval of the fact that, when an SLP was argued, it was not brought to the notice of the Bench that one of the Members of the Bench had earlier heard the matter while presiding over a Division Bench, as the Chief Justice of J&K High Court. Had the matter been brought to the notice of the Supreme Court, their Lordships would have declined to hear the matter. The fact having been brought to the notice of the Court through this review petition, the Apex Court issued notice to the counsel of the respondent directing the record of the SLP to be put up alongwith the review petition before a Bench of which the Judge concerned is not a Member. 6. GROUP DECISION Where a decision is taken by a group of persons, such as a board or committee, bias of one member affects the validity of the group decision and it does not matter that the biased member did not actively participate in the decision, or that he remained silent and did not seek to influence the decision of other members in the group. The reason is that in such a case, the question is not whether there was actual bias or not but whether there was a reasonable likelihood of bias. The principle was first stated explicitly and applied by the Supreme Court in Kraipak.23 The Supreme Court said that in a group decision, each member of the group is bound to influence the other. This view has been reiterated since then in a number of cases.24 In Sarana,25 the Supreme Court reiterated the proposition that bias on the part of a member of the selection committee for filling certain posts may vitiate it recommendations. On this point, the Court had stated:26 In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. In a group deliberation and decision like that of a Selection Board, the members do not function as computers. Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge. His bias is likely to operate in a subtle manner.

One member can subtly influence the minds of the other members in his favour. Recently, in Rattan Lal Sharma, the Supreme Court quashed a group decision on account of the bias of one of its members.27 When a selection committee to select persons for civil posts includes as a member the son-in-law of a selected candidate (while some of his seniors were not selected), the selections were quashed on the ground of bias, even though the committee was presided over by an independent person, e.g. the Chairman of the Union Public Service Commission.28 The doctrine of bias, the court held, would apply in case the relationship between the adjudicator and a party before him was so close as to give rise to the reasonable likelihood of the adjudicator espousing the cause of the party as his own. In the instant case, the relationship between the committee member and the candidate selected was sufficiently close to bring the doctrine against bias into play. "The nearness of the relationship could reasonably give the impression to the other candidates that there was a 'real likelihood' of the member espousing the case of his father-in-law". The court emphasized that the facts that the member concerned remained silent in the committee meeting, or that he did not influence the members of the committee, or that the committee was aware of the member's relationship with the candidate, were of no consequence. The law was not concerned with whether the member concerned in fact participated in the consideration of his father-inlaw's candidature, or spoke to the prejudice of other candidates. "The law is concerned with determining whether there was a reasonable likelihood of bias". In a group discussion, each member of the group influences the other. The selection list was therefore quashed as, in the court's opinion, the petitioners could have legitimately believed that there was a "reasonable likelihood of bias" in favour of the candidate selected to the deteriment of the petitioners because of the presence of his son-in-law on the committee. When the mother-in-law of a candidate for post-graduate course in a medical college was a member of the selection committee, his selection was quashed.29 A similar question has now been considered in some detail by the Supreme Court in Ashok Kumar Yadav v. Haryana.30 The basic question raised in the case was: when a near relation of a member of

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a selection committee is a candidate, what should the member do? Should he desist from interviewing all the candidates or only his relation? Taking a broader view of the matter, the Court has laid down the following proposition: if a selection committee is constituted for the purpose of selecting candidates on merits, and one of its members is closely related to a candidate appearing for the selection, such member should not merely withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process, otherwise all selections would be vitiated on account of reasonable likelihood of bias affecting the selection process. In Mohapatra,31 the Supreme Court applied the same principle. The Court ruled that mere non-participation in the discussion by an interested member or even his withdrawal from deliberations of the committee when his books are being considered for selection, would not suffice because the evil of quid pro quo cannot be eliminated by this. "Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would then be favourably inclined to select their books." 7. ACTUAL BIAS AND APPARENT BIAS A distinction is made between actual bias and apparent bias. Actual bias is rarely established, but clearly provides grounds for removal. More often there is a suspicion of bias which has been variously described as apparent or unconscious or imputed bias. In such majority of cases, it is often emphasised that the challenger does not go so far as to suggest that the arbitrator is actually biased, rather that some form of the objective apprehension of bias exists.32 Actual bias would lead to an automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. Actual bias denotes an arbitrator who allows a decision to be influenced by partiality or prejudice and thereby deprives the litigant of the fundamental right to a fair trial by an impartial tribunal.33 8. INITIAL RECOMMENDATION At times, there may be an initial recommendation made by a person or body. It may not have any effect by itself and a higher body may have to accept it (or reject it). The initial recommendation may be questionable because of bias of the person or the body making it. Will the bias of initial decision maker have any effect on the ultimate decision taken by an independent body? The response of the courts has been in the affirmative because while the initial recommendation may not be the final word in itself, nevertheless, it plays a significant part in the making of the final decision.34 In Manak Lal',35 it was sought to be argued that the decision of the bar council tribunal was not final as it had to be submitted to the High Court, and so the rule against bias was not applicable to the tribunal. The Supreme court rejected the argument. The Court said that in a quasi-judicial proceeding, justice must not only be done but must appear to be done to the litigant public. Therefore, when a lawyer was charged for professional misconduct and was given the privilege of being tried by a bar council tribunal, the inquiry before the tribunal must leave no room for a reasonable apprehension in the lawyer's mind that the tribunal might have been influenced by bias in the mind of one of the tribunal members. In the context of the report of a selection committee not being final, but required to be adopted by the university's executive council, in Sarana,36 the Supreme Court adopted the following statement from De Smith:37 ... on principle it would seem that where a report or determination lacking final effect may nevertheless have a seriously prejudicial effect on the legally protected interests of individuals (e.g. when it is a necessary prerequisite of a final order) the person making the report or preliminary decision must not be affected by interest or likelihood of bias.

This proposition has now been reiterated by the Supreme Court in Mohapatra.38 The Court rejected the argument that the recommendations of the committee appointed to select books for purchase for school libraries were not final; the ultimate decision rested with the State Government which could reject any books approved by the committee. The Court said that the State Government would normally be guided by the list

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approved by the committee. 9. STATUTE MAY EXCLUDE BIAS A law may specifically exclude or modify the rule against bias in a specific situation and may make a person judge in his own cause. A statutory provision may obligate an official to sit and decide a matter irrespective of his interest in the subject-matter thereof. For example, a statutory provision may say specifically that an official is not disqualified to act as an adjudicator in a particular matter irrespective of his interest therein. The State Government received proposals for increase in fare from many government transport undertakings including the Maharashtra State Road Transport Corporation (MSRTC), a statutory body, and the BEST. Accordingly, draft notifications were issued by the government proposing fare increase and inviting objections against the proposal. Under S. Section 43 of the Motor Vehicles Act, the concerned Minister overruled the objections against the proposal and thereafter final notifications were issued increasing the fare. These notifications were challenged by the petitioner association. The petitioner contended before the High Court that the Minister could not hear and decide the matter as he had interest in government transport undertakings which would be benefited by such an increase. Rejecting the contention, the Court ruled that though MSRTC was an agency of the State, it was, nevertheless, an independent statutory corporation and BEST and other transport undertakings were owned by local authorities. The Minister had no personal interest in them. The Act imposed a duty upon the State Government to issue directions under S. 43, MVA, 1939. Under the Business Rules, the concerned Minister had to hear and decide the matter on behalf of the State Government.39 S. 3 of the Public Premises (Eviction of Unauthorised Occupants) Act40 authorises the Central Government to appoint gazetted officers of the government or officers of equal rank of statutory bodies to act as estate officers under the Act. However, an officer of a statutory body is to act as an estate officer only in respect of the public premises controlled by that authority. In B.K. Mehra v. LIC,41 an officer of the LIC was appointed as the estate officer who passed an order of eviction of the petitioner from the LIC property. The order was challenged on the ground of bias, the argument being that the estate officer being an employee of the corporation, would have bias in favour of his employer. The Court rejected the argument saying that S. 3 was "clear legislative authority" for the impugned appointment. The principles of natural justice cannot override a statutory provision. "Legislation may override rules of natural justice, but the latter cannot efface a legislation." Natural justice can supplement but not supplant legislation.42 A statute authorised the managements of private colleges to hold enquiries, and take disciplinary action, against their teachers. In Madhavan,43 the appellant argued that when the management itself was the accuser and the prosecutor, it could not also conduct the enquiry as no one could be a judge in his own cause. Rejecting the argument, the High Court emphasized that to accept the argument would result in the total effacement of the statutory provision under which the only agency to enquire and take disciplinary action was the management and none else. Natural justice cannot prevail against an express statutory provision. Franklin,44 noted earlier, can also be regarded as an example of the principle being discussed here. There the power to decide was specifically conferred on the Minister concerned, and so he had to decide irrespective of his having a policy bias in the matter. Finally, it may be stressed that the courts at times interpret statutory provisions in such a way as to exclude, as far as possible, the operation of bias from the adjudicatory proceedings. Rule against bias can certainly be excluded in a specific situation by law. If the law envisages that a person or body will make a determination in spite of the presence of an interest in such a person or authority giving rise to bias, then the decision may not be invalidated on the ground of bias.45 However, the intention of the law should be clear to this effect. In the absence of a clear indication in the law, the court's usual inference would be to regard this as a disqualification. Even in the face of a statutory scheme requiring an interested person to make the determination, whatever escape routes are available to dilute the effect of disqualification of the authority, they should be taken recourse to, except where this cannot be done without paralysing the Administration. In other words, only in the case of necessity, the statutory scheme may have to be strictly followed.46

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10. WAIVER There also exists the principle of waiver. A person can always waive an advantage. A party may waive his objection to adjudication by a biased person. Waiver may be express or implied. Objection may be inferred as having been waived if the concerned party knowing of the disqualification arising out of bias in the adjudicator as well as being aware of his right to object thereto, "acquiesced in the proceedings by failing to take objections at the earliest opportunity".47 By appearing before the adjudicator and keeping silent, knowing all the facts, he will be deemed to have abandoned his right later on to object to hearing by him on the ground of bias.48 The principle was applied by the Supreme Court as early as 1957 in Manak Lal.49 Although the Supreme Court was of the opinion that the chairman of the bar council tribunal was disqualified to act as such on the ground of personal bias, applying the doctrine of waiver, the Court refused to give any relief to the petitioner advocate against whom the tribunal had conducted the inquiry. The petitioner never raised any objection before the tribunal to the continuance of the Chairman because of bias. He raised this objection for the first time before the High Court. The Court observed: "The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal. It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question."

The court concluded that the petitioner knew of the facts giving rise to the chairman's disqualification to act as a member of the tribunal. Being a lawyer of 10 years' standing he must be deemed to have been conscious of his legal rights in the matter and, therefore, his failure to take the plea of bias at the earlier stage of the proceedings "creates an effective bar of waiver against him." The Court concluded that the petitioner wanted to take a chance to secure a favourable report from the tribunal and when he found that he was confronted with an unfavourable report, he adopted the device of raising the technical plea of bias. In Vidya Parkash v. Union of India50, a summary court-martial under Section 116 of the Army Act, 1950, was presided over by the commanding officer of corps. The appellant was tried for absenting without leave. He was dismissed after trial. The Supreme Court rejected a challenge to the validity of the court martial on the ground of bias. The Court refused to accept the plea that the appellant had raised any objection to the proceedings being presided over by the commanding officer. This contention was neither raised before the court-martial nor even before the High Court while challenging the dismissal order. There may, however, be situations where an individual may not be in a position to object, e.g., on account of fear of antagonising his superiors,51 ignorance of full facts, or if he was "prevented by surprise from taking the objection at the appropriate time, or if he was unrepresented by counsel and did not know of his right to object at the time".52 In such situations, waiver may not be inferred. It is suggested that waiver ought not to be inferred unless the affected person knew of bias in the decision-maker, and also of his right to object at the earliest stage on this ground. Waiver of rights by an individual should not be inferred lightly.53 A correct approach was adopted by the Supreme Court on the question of waiver in Mohapatra.54 The Court said there: "...merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books". The tenability of the Sarana ruling55 is open to grave doubt especially after the Mohapatra ruling.56 There the Court implied Waiver on the part of the candidate-petitioner from the fact of his appearance before the selection committee without raising any objection as to its composition although he later challenged its decision on the ground of bias of two of its members. However, there was nothing on record to show that the candidate at the time of interview knew all the facts which entitled him to object as regards bias of two members of the committee, or knew that he was entitled to raise objection at the time to the composition of the committee on the ground of bias. Waiver cannot be inferred unless the concerned person knows all the facts which entitle him to object as well as knows his right and then waives his right. There can be no waiver of rights of which the person concerned is unaware. The courts should be reluctant to infer Waiver,

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particularly when the affected person did not know of his right to object at the earliest stage. After all, a surrender of rights should not be inferred lightly. On the other hand, in Mohapatra, the Court struck the right note by ruling that a person cannot be taken to have waived his right to challenge the committee's decision on the ground of bias merely from the fact of submission of books to it. Waiver is an intentional act done with knowledge and not an unconscious act. There can be no waiver unless the person concerned is fully conscious of his right and he then intentionally abandons the same.57 As has been stated by the court in The King v. Essex Justices, ex p. Perkins: 58 "Waiver on acquiescence ... presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim. If the applicant was not fully cognizant of his right to take objection, he could not be said to have waived his right by failing to exercise it. Waiver presupposes an intention to forgo a right."

Reference may be made here to Rattan Lal Sharma.59 The appellant (R.), principal of a college, was dismissed by the managing committee of the college. The managing committee appointed an inquiry committee consisting of three members of whom M. was one. M. was a member of the managing committee as a teachers' representative. R. raised objection to the appointment of M. to the inquiry committee but the managing committee overruled his objection. M. although a member of the inquiry committee deposed before the committee against the principal. On receiving the inquiry report, the managing committee passed the dismissal order against R. Under the relevant rules as made by the government, the matter then went to the deputy commissioner for approval of the dismissal order who approved the same after considering a representation from R. The principal then preferred an appeal to the commissioner but he dismissed the appeal. Thereafter, R. moved a writ petition in the High Court seeking quashing of the dismissal order on the ground of M's bias, but the High Court rejected the petition on the ground of waiver by R. The High Court argued that as R. had specifically raised the plea of M's bias before the deputy commissioner and the commissioner, he could not raise the plea in the writ Petition. On appeal, the Supreme Court disagreed with the High Court. The Supreme Court said that, generally, a point not raised before the tribunal or administrative authority may not be allowed to be raised for the first time in the writ proceeding, particularly, when the plea requires investigation of facts. But if the plea not specifically raised earlier before the subordinate bodies is raised before the High Court in the writ proceedings for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, "the High Court is not only justified in entertaining the plea but in the anxiety to do justice which is the paramount consideration of the court, it is only desirable that litigant should not be shut out from raising such plea which goes to he root of the lis involved." The Supreme Court ruled that the deputy commissioner was obligated to consider the correctness and propriety of the managing committee decision which was based on the inquiry committee report which showed on its face that M. was included and retained in the inquiry committee despite the appellant's objection and M. became a witness against R., the appellant. "The illegality committed in conducting the departmental proceedings has left an indelible stamp of infirmity on the decision of the managing committee." The Supreme court quashed the order of dismissal. The managing committee could however proceed afresh with the departmental proceeding (i.e. the inquiry) from the stage of issuance of the charge-sheet but then none of the members of the inquiry committee were to be a member of the new inquiry committee. A question may be raised about the tenability of the doctrine of waiver. It is based on the premise that it is only the affected person who is concerned with the adjudicator's bias and none else, and if he seeks to ignore his own interest, it is his choice and no one else needs to interfere in it. But, there is a wider social interest at stake here: is not public interest compromised when a decision is taken by a biased person and justice is compromised by favouritism towards one party as against the other ? This means that the doctrine of waiver should be applied only in rare cases because society has a stake in impartial and objective adjudication and the credibility of the system will suffer in the public eye if biased persons are allowed to sit as adjudicators. 11. NECESSITY EXCLUDES BIAS

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Referring to the doctrine of necessity, Sir William Wade in his Administrative Law stated:60 "But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity; for otherwise there is no means of deciding and the machinery of justice or administration will break down."

It was further stated: "In administrative cases the same exigency may arise. Where the statute empowers a particular minister or official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility, even if he is personally interested. Transfer of responsibility is, indeed, a recognised type of ultra vires. In one case it was unsuccessfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament."

The Supreme Court has explained in Mohapatra61 that the only exception to the rule of bias is necessity. An adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is authorised or competent to adjudicate, or if a quorum cannot be formed without him, or if no other competent tribunal can be constituted. In such cases, the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice would break down.62 It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making.63 In this case, a committee to select books for purchase for school libraries was appointed by the Government by a resolution. The committee consisted of some officials ex-officio and some non-officials. Some of the non-official members were authors of books which were considered for selection by the committee. The Supreme Court refused to accept the argument that the rule against bias ought not to be applied in the situation because of necessity. The Court argued: "There was ... nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its resolution by applying a substitute or substitutes as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest". In another case, the question as to the disqualification of a member of the Legislative Assembly was raised before the Governor who obliged to obtain the opinion of the Election Commission and to take decision solely on that basis. The Election Commission is a three member commission and the Chief Election Commissioner was found to have likelihood of bias against the said member. The Supreme Court was of the opinion that the proper course to follow would be that the Chief Election Commissioner should call a meeting of the Election Commission to adjudicate on the issue of disqualification of the member. After calling the meeting he should act as the Chairman but then he may recuse himself by announcing that he would not participate in the formation of opinion. If the two Election Commissioners reached a unanimous opinion, the Chief Election Commissioner would have the opinion communicated to the Governor. If the two Election Commissioners did not reach a unanimous decision in the matter of expressing their opinion on the issue referred to the Election Commission, it would be necessary for the Chief Election Commissioner to express his opinion on the doctrine of necessity. The Court was of the view that in the special circumstances of this case this course of action would be the most appropriate one to follow because if the two Election Commissioners did not agree, undoubtedly, the doctrine of necessity would compel the Chief Election Commissioner to express his views so that the majority opinion could be communicated to the Governor to enable him to take a decision in accordance therewith as required by

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Article 192(1) of the Constitution.64 Where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances) makes an exception in the situation and the said person is entitled to take a decision notwithstanding his disqualification for otherwise no decision can be taken by anybody on the issue and public interest will suffer. But the position in the present case is that there is no statute or statutory rule compelling the Chief Secretary to be a member of the Screening Committee. If the Committee is constituted under an administrative order and a member is disqualified in a given situation vis-à-vis a particular candidate whose promotion is in question, there can be no difficulty in his "recusing" himself and requesting another senior officer to be substituted in his place in the Committee. Alternatively, when there are three members in the Committee, the disqualified member could leave it to the other two -- to take a decision. In case, however, they differ, then the authority which constituted the Committee, could be requested to nominate a third member. Hence, the doctrine of necessity is not applicable in the present case.65 However, the Supreme Court was of the view that ordinarily the Court would be loath to uphold the submission of bias against a person holding such a high constitutional office as that of the Chief Election Commissioner.66 Bias cannot be presumed against an inquiry officer who is an officer of the management.67 The Supreme Court refused to apply the argument of necessity in Ratna.68 The Court pointed out that under the rules, while the disciplinary committee of the Institute must necessarily consist of the President and the Vice-President, there was no such compulsion about the Council meeting. The Council could hold its meeting without the President and the Vice President being present. The Court suggested an amendment of the Act with a view to providing for the constitution of the disciplinary committee without the President and the Vice-President in order to give due recognition to the fundamental principle of law. The Supreme Court also rejected the argument of necessity in Rattan Lal Sharma.69 The managing Committee of the college sought to justify the appointment of M to the inquiry committee on the ground of necessity, viz. it was necessary to appoint him as he was the staff representative in the managing committee. But the Court ruled that there was no such necessity as there was no rule requiring inclusion of the staff representative in the inquiry committee so as to attract the doctrine of necessity. The inquiry committee could have been constituted with other members of the managing committee. The Court did however apply the doctrine of necessity in Ashok Yadav70 to selections made by a Public Service Commission.71 When a near relation of a member of the Commission is a candidate, it will be enough if the concerned member desists from interviewing his relation; he should withdraw from the committee when his relation appears for interview and he should not participate in the discussion in regard to the merits of that candidate and even the marks or credit given to him should not be disclosed to the concerned member. There was however no need for the member to withdraw himself from the entire selection process. This is an exception from the normal rule stated earlier.72 The reason for this judicial stance is practical necessity. A public service commission is a constitutional body. If a member thereof withdraws from the selection process on the ground that a close relation of his is appearing for selection, no other person save a member can be substituted in his place. If no other member is available to take the place of such a member the functioning of the commission may be affected.73 But a question may be posed at this stage: should not the doctrine of necessity, stated above, apply only when a commission has so few members that a 'biased' member cannot be replaced by another member? If, however, the membership is big enough to replace an 'interested' member with a 'non-interested' member, then, should not, in all fairness, the court refuse to apply this doctrine? Should not the court in such a case insist that the Yadava ruling will not apply and that no 'biased' member should sit on the selection committee? 12. POSTSCRIPT Recently, in R. v. Gough,74 the House of Lords has sought to clarify the law regarding bias. The leading judgement is delivered by Lord Goff. If actual bias is proved, that is the end of the case and the person concerned must be disqualified. But it is not necessary to prove actual bias in the adjudicating body for two very good reasons, viz., (1) bias is such an insidious thing that, even though a person may in good faith

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believe that he was acting impartially, his mind may unconsciously be affected by bias. (2) There is an overriding public interest that there should be confidence in the integrity of the administration of justice. Therefore, the approach of the law has been to look at the relevant circumstances and to consider whether there is such a degree of possibility of bias that the decision in question should not be allowed to stand. Hitherto, in the authorities, two rival tests for bias have been propounded, viz., (1) whether a reasonable and fair-minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial by the defendant was not possible (reasonable suspicion test); (2) whether there was a real likelihood of bias (real likelihood test). As regards pecuniary or proprietary interest in the subject-matter of the proceedings (as in Dimes),75 there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. "The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand." In other cases of bias, as regards the perspective from which bias should be viewed, Lord Goff has laid down, after a review of the case-law, that it is unnecessary, in formulating the appropriate test for bias, to require that the court should look at the matter through the eyes of a reasonable man, "because the court in cases such as these personifies the reasonable man," and also because the court has ascertained relevant circumstances from the evidence which may not be available to an ordinary observer. Lord Goff has now stated the test in terms of "real danger" rather than "real likelihood" "to ensure that the court is thinking in terms of possibility rather than probability of bias." Thus, Lord Goff has laid down the following uniform test applicable to all adjudicatory bodies: "Having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

The new formulation of the Rule against bias in somewhat narrow and restrictive as compared to the test propounded by Lord Denning in Metropolitan Properties. The "reasonable man" is now out, the reviewing judge himself takes the place of the reasonable man. Further, the "real likelihood bias" test is now replaced by the "real danger" test. This means that quite a few cases which could be caught by the old rule against bias will now be out of reach of the new formula. It remains to be seen what impact, if any, the above ruling will have on judicial thinking in India on this point. Will the Supreme Court in future continue with its approach so far propounded in the cases mentioned above or will it re-orient its thinking in the light of the above ruling of the House of Lords? One thing may however be said regarding the present case-law in India on the question of bias. It is in a state of confusion because the courts do not apply only one test uniformly but have propounded several tests for the purpose. It may lead to great advantage if the Supreme Court is able to evolve one uniform test for the purpose as this would avoid unnecessary and avoidable confusion in this area. 13. NATURAL JUSTICE--A HISTORY AND ELABORATION BY THE SUPREME COURT Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.76 The expressions "natural justice" and "legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.77 The adherence to principles of

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natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinativly of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate".78 In the celebrated case of Cooper v. Wandsworth Board of Works,79 the principle was thus stated: "Even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat?' "

Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.80 Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.81 What is meant by the term "principles of natural justice" is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local Govt. Board,82 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Spackman,83 Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed" and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give "a full and fair opportunity" to every party of being heard. Lord Wright referred to the leading cases on the subject. The most important of them is Board of Education v. Rice,84 where Lord Loreburn, L.C. observed as follows: "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. ...The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from their determination, either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way which I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari."

Lord Wright also emphasised from the same decision the observation of the Lord Chancellor that "the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view." To the same effect are the observations of Earl of Selbourne, L.O. in Spackman v. Plumstead District Board of Works,85 where the learned and noble Lord CHANCELLOR observed as follows: "No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but the must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the

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dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice."

Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oftquoted phrase "justice should not only be done, but should be seen to be done." Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.86 Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura,87, Lord Cranworth defined it as "universal justice." In James Dunber Smith v. Her Majesty the Queen,88 Sir Robort P. Collier, speaking for the Judicial Committee of the Privy Council, used the phrase "the requirements of substantial justice", while in Arthur John Spackman v. Plumstead District Board of Works,89 the Earl of Selbourne, S.C. preferred the phrase "the substantial requirement of justice". In Vionet v. Barrett,90 Lord Esher, M.R. defined natural justice as "the natural sense of what is right and wrong". While, however, deciding Hookings v. Smethwick Local Board of Health,91 Lord Esher, M.R. instead of using the definition given earlier by him in Vionet case92 chose to define natural justice as "fundamental justice". In Ridge v. Baldwin,93 Harman, L.J., in the Court of Appeal countered natural justice with "fair play in action", a phrase favoured by Bhagwati, J. in Maneka Gandhi v. Union of India.94 In H.K. (An Infant), Re.95 Lord Parker, C.J. preferred to describe natural justice as "a duty to act fairly." In Fairmount Investments Ltd. v. Secy. of State for Environment,96 Lord Russel of Killowen somewhat picturesquely described natural justice as "a fair crack of the whip" while Geoffrey Lane, L.J. in R. v. Secy. of State for Home Affairs, ex p Hosenball,97 preferred the homely phrase "common fairness". How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is " nemo judex in causa sua" or " nemo debet esse judex in propria causa sua" as stated in Earl of Derby's case1 that is, "no man shall be a judge in his own cause". Coke used the form " aliquis non debet esse judex in propria causa, quia non potest esse judex et pars" (Co. Litt. 1418), that is, "no man ought to be a judge in his own case, because he cannot act as judge and at the same time be a party". The form " nemo potest esse simul actor et judex", that is, "no one can be at once suitor and judge" is also at times used. The second rule is " audi alteram partem", that is, " hear the other side". At times and particularly in continental countries, the form " audietur et altera pars" is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely " qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right" [see Boswel's case2] or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done". Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.

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What is known as "useless formality theory" has received consideration of this Court in M. C. Mehta v. Union of India.3 It was observed as under: "22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed see Malloch v. Aberdeen Corpn.4 (per Lord Reid and Lord Wilberforce), Glynn v. Keele University.5Cinnamond v. British Airports Authority,6 and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' Court, ex p Fannaran,7 (Admn LR at p. 358) [see de Smith, Suppl. P. 89 (1998)] where Straughton, L.J. held that there must be ' demonstrable beyond doubt' that the result would have been different. Lord Woolf in Lloyd v. McMahon,8 has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant,9 however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is 'real likelihood--not certainty -- of prejudice'. On the other hand, Garner's Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin,10 Megarry, J. in John v. Rees,11 stating that there are always 'open and shut cases' and no absolute rule of proof of prejudice can be laid down. Merits are not for the Court but for the authority to consider. Ackner, J. has said that the 'useless formality theory' is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that 'convenience and justice are often not on speaking terms'. More recently, Lord Bingham has deprecated the 'useless formality theory' in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton,12 by giving six reasons. (See also his article ' Should Public Law Remedies be Discretionary?' 1991 PL, p. 64.) A detailed and emphatic criticism of the 'useless formality theory' has been made much earlier in 'Natural Justice, Substance or Shadow' by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch13 and Glynn14 were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the Court cannot prejudge what is to be decided by the decision-making authority. De Smith (5th Edn., 1994, paras 10.031 to 10.036) says Courts have not yet committed themselves to any one view though discretion is always with the Court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a 'real likelihood' of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their ' discretion', refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma,15Rajendra Singh v. State of M.P.,16 that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. 23. We do not propose to express any opinion on the correctness or otherwise of the 'useless formality' theory and leave the matter for decision in an appropriate case, inasmuch as in the case before us, ' admitted and indisputable' facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J."

In some cases it has been observed that where grant of opportunity in terms of principles of natural justice does not improve the situation, "useless formality theory" can be pressed into service.17 In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing (See Charan Lal Sahu v. Union of India.)18 Though in all cases the post-decisional hearing cannot be a substitute for pre-decisional hearing, in the case at hand the position is different. The position was illuminatingly stated by the Supreme Court in Managing Director, ECIL v. B. Karunakar19 which reads as follows: "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non supply of the report. If after hearing the parties, the Court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/tribunal should not interfere with the order of punishment. The Court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/tribunal sets aside the order of punishment, the proper relief that should be

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granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the state of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law."

The position was again reiterated in Union Bank of India v. Vishwa Mohan,20 as follows: "9. We are totally in disagreement with the above-quoted reasoning of the High Court. The distinction sought to be drawn by the High Court that the first charge-sheet served on the respondent related to the period when he was a clerk whereas the other three charge-sheets related to the period when he was promoted as a bank officer. In the present case, we are required to see the findings of the enquiry authority, the order of the disciplinary authority as well as the order of the Appellate Authority since the High Court felt that the charges levelled against the respondent after he was promoted as an officer were not of a serious nature. A bare look at these charges would unmistakably indicate that they relate to misconduct of a serious nature. The High Court also committed an error when it assumed that when the respondent was promoted as a bank officer, he must be having a good report otherwise he would not have been promoted. This finding is totally unsustainable because the various acts of misconduct came to the knowledge of the Bank in the year 1989 and thereafter the first charge-sheet was issued on 17-2-1989. The respondent was promoted as a bank officer sometime in the year 1988. At that time, no such adverse material relating to the misconduct of the respondent was noticed by the Bank on which his promotion could have been withheld. We are again unable to accept the reasoning of the High Court that in the facts and circumstances of the case 'it is difficult to apply the principle of severability as the charges are so inextricably mixed up'. If one reads the four charge-sheets, they all relate to the serious misconduct which includes taking bribe, failure to protect the interests of Bank, failure to perform duties with utmost devotion, diligence, integrity and honesty, acting in a manner unbecoming of a bank officer etc. In our considered view, on the facts of this case, this principle has no application but assuming that it applies yet the High Court has erred in holding that the principle of severability cannot be applied in the present case. The finding in this behalf is unsustainable. As stated earlier, the appellant had in his possession the enquiry report/findings when he filed the statutory appeal as well as the writ petition in the High Court. The High Court was required to apply its judicial mind to all the circumstances and then form its opinion whether non-furnishing of the report would have made any difference to the result in the case and thereupon pass an appropriate order. In para 31, this Court in Managing Director, ECIL21 has very rightly cautioned:

'The Court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts'."

1 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 196 (para 20): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], relying on Sayeedur Rehman v. State of Bihar, (1973) 3 SCC 333 [LNIND 1972 SC 558] [LNIND 1972 SC 558] [LNIND 1972 SC 558] and Channabasappa Basappa Happali v. State of Mysore, (1971) 1 SCC 1 [LNIND 1970 SC 431] [LNIND 1970 SC 431] [LNIND 1970 SC 431]: AIR 1972 SC 32 [LNIND 1970 SC 431] [LNIND 1970 SC 431] [LNIND 1970 SC 431]. 2 (1973) 3 SCC 333 [LNIND 1972 SC 558] [LNIND 1972 SC 558] [LNIND 1972 SC 558], 338 (para 11): 1973 SCC (L&S) 122, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 196 (para 20): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. 3 (1971) 1 SCC 1 [LNIND 1970 SC 431] [LNIND 1970 SC 431] [LNIND 1970 SC 431]: AIR 1972 SC 32 [LNIND 1970 SC 431] [LNIND 1970 SC 431] [LNIND 1970 SC 431], as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 196 (para 21): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. 4 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 190 (para 10): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]; relied on in State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 336 (para 5): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 5 R.S. Garg v. State of U.P., (2006) 6 SCC 430 [LNIND 2006 SC 561] [LNIND 2006 SC 561] [LNIND 2006 SC 561], 448 (para

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26), relying on S.R. Venkataraman v. U.O.I., (1979) 2 SCC 491: AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, (2003) 4 SCC 739 [LNIND 2003 SC 314] [LNIND 2003 SC 314] [LNIND 2003 SC 314]; Chairman & MD, BPL Ltd. v. S.P. Gururaji, (2003) 8 SCC 567 [LNIND 2003 SC 870] [LNIND 2003 SC 870] [LNIND 2003 SC 870]; Punjab SEB Ltd. v. Zora Singh, (2005) 6 SCC 776 [LNIND 2005 SC 609] [LNIND 2005 SC 609] [LNIND 2005 SC 609] and Shearer v. Shields, 1914 AC 808: 82 LJPC 216: 111 LT 297 (HL). 6 State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 340 (paras 10 and 11): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. No mala fides, no bias Jasvinder Singh v. State of J.&K., (2003) 2 SCC 132 [LNIND 2002 SC 850] [LNIND 2002 SC 850] [LNIND 2002 SC 850], 137 (para 8); Onkar Lal Bajaj v. U.O.I., (2003) 2 SCC 673 [LNIND 2002 SC 1316] [LNIND 2002 SC 1316] [LNIND 2002 SC 1316], 691-92 (para 40): AIR 2003 SC 2562 [LNIND 2002 SC 1316] [LNIND 2002 SC 1316] [LNIND 2002 SC 1316]; Federation of Railway Officers Association v. U.O. I., (2003) 4 SCC 289 [LNIND 2003 SC 338] [LNIND 2003 SC 338] [LNIND 2003 SC 338], 303 (para 20): AIR 2003 SC 1344 [LNIND 2003 SC 338] [LNIND 2003 SC 338] [LNIND 2003 SC 338]. 7 Howrah Municipal Corporation v. Ganges Rope Co. Ltd., (2004) 1 SCC 663 [LNIND 2003 SC 1141] [LNIND 2003 SC 1141] [LNIND 2003 SC 1141], 675 (para 22). 8 Delhi Financial Corporation v. Rajiv Anand, (2004) 11 SCC 625, 632 (para 9), followed in Crawford Bayley & Co. v. U.O.I., (2006) 6 SCC 25 [LNIND 2006 SC 471] [LNIND 2006 SC 471] [LNIND 2006 SC 471], 34, 36 (paras 18 and 23). 9 State of Rajasthan v. Ram Chandra, (2005) 5 SCC 151 [LNIND 2005 SC 365] [LNIND 2005 SC 365] [LNIND 2005 SC 365], 161 (para 24): AIR 2005 SC 2221 [LNIND 2005 SC 365] [LNIND 2005 SC 365] [LNIND 2005 SC 365], relying on S. Jeevanatham v. State, (2004) 5 SCC 230 [LNIND 2004 SC 542] [LNIND 2004 SC 542] [LNIND 2004 SC 542]. 10 State of U.P. v. Mohd. Waqar Husain, 1995 Supp (3) SCC 669. 11 Union of India v. Vijay Kumar Garg, 1997 (1) Scale (SP) 24. 12 Kashmir Electric and Hardware Corporation v. State of J&K, (1996) 5 SCC 437: 1996 (6) Supreme 309. 13 Abraham Kuruvila v. S.C.T. Institute of Medical Sciences & Technology, (2005) 9 SCC 49, 52-53 (para 6). See also South India Cashew Factories Worker's Union v. Kerala State Cashew Development Corpn. Ltd., (2006) 5 SCC 201 [LNIND 2006 SC 390] [LNIND 2006 SC 390] [LNIND 2006 SC 390], 206-07 (paras 14 and 15). 14 Syed Rahimuddin v. Director General, C.S.I.R., AIR 2001 SC 2418: (2001) 9 SCC 575. 15 High Court Judicature at Bombay v. Shirishkumar Rangarao Patil, (1997) 6 SCC 339 [LNIND 1997 SC 753] [LNIND 1997 SC 753] [LNIND 1997 SC 753], 359 (para 18): AIR 1997 SC 2631 [LNIND 1997 SC 753] [LNIND 1997 SC 753] [LNIND 1997 SC 753]. 16 High Court of Judicature at Bombay v. Udaysingh, (1997) 5 SCC 129 [LNIND 1997 SC 661] [LNIND 1997 SC 661] [LNIND 1997 SC 661], 137-38 (para 10): AIR 1997 SC 2286 [LNIND 1997 SC 661] [LNIND 1997 SC 661] [LNIND 1997 SC 661]. 17 Union of India v. Bikash Kumar, (2006) 8 SCC 192, 195 (para 14). 18 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524 (para 25): AIR 1998 SC 2050, relying on A.K. Kraipak v. Union of India, (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]; S.P. Kapoor (Dr) v. State of H.P., (1981) 4 SCC 716 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424]: AIR 1981 SC 2181 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424]; Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]: (1960) 2 MLJ (SC) 16; Financial Commr. (Taxation), Punjab v. Harbhajan Singh, (1996) 9 SCC 281 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199]: AIR 1996 SC 3287 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199]; Gurdip Singh v. State of Punjab, (1997) 10 SCC 641: 1997 SCC (L&S) 1742; R. v. Sussex JJ., ex p Mccarthy, (1924) 1 KB 256: 1923 All ER Rep 233. 19 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 198 (paras 26 and 27): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. 20 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 526 (para 33): AIR 1998 SC 2050. 21 (1974) 3 SCC 459 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280], 465-66 (para 16): 1973 SCC (L&S) 580; as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 198 (paras 27 and 28): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. 22 (1968) 3 WLR 694, 707: (1969) 1 QB 577: (1968) 3 All ER 304 (CA); see also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 336 (para 6): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 23 1948 AC 87: (1947) 2 All ER 289 (HL), as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC

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182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 199 (para 29). See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 337 (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 24 (2000) 1 AC 119, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 199 (para 30): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 337 (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 25 R., v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 2) (2001) 1 AC 119, 136, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 199-200 (para 31) AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 337, (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 26 (2001) 1 AC 119, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 200 (para 31): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 337, (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 27 2000 QB 451, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 200 (para 33): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. See also State of Punjab v. V.K. Khanna, (2001) 1 SCC 330, 338, (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 28 1993 AC 646. 29 3 House of Lords Cases 759. 30 (2001) 1 AC 119. 31 (1986) 161 CLR 342 (Aus HC). 32 (1999) 161 ALR 55. 33 (1999) 4 SA 147. 34 2000 QB 451. 35 (1989) 167 CLR 568. 36 2000 QB 451, as cited in Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 201 (para 34): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 339, (para 7): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. 37 Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], 201 (para 35): AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]; per BANERJEE, J. See also State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 339 (para 8): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]; M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788 [LNIND 2004 SC 1133] [LNIND 2004 SC 1133] [LNIND 2004 SC 1133], 800 (para 22). 38 2000 QB 451. 39 (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: 1993 (L&S) 1106, as cited in State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], 339 (para 9): AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. Mere disagreement with another does not mean harbouring grudge, Satya Narain Shukla v. U.O.I., (2006) 9 SCC 69 [LNIND 2006 SC 387] [LNIND 2006 SC 387] [LNIND 2006 SC 387], 80-81 (para 28). 40 (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]: JT 2000 Supp (2) SC 206: AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. 41 (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: 1993 (L&S) 1106. See also Padma v. Hiralal Motilal Desarda, (2002) 7 SCC 564 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621]: AIR 2002 SC 3252 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621]. 42 Judicial Review of Administrative Action, by DE SMITH, WOOLF and JOWELL (5th Edn., at p. 527).

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43 Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 584 (para 12). 44 Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 582 (para 7). 45 (1960) 3 SCR 742 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141], 753: AIR 1960 SC 1073 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141], as cited in Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 582 (para 7). 46 Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 583 (para 8). 47 421 US 35, 47 (1975): 43 LED 2d 712, as cited in Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 583 (para 8). 48 Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 583 (paras 9 and 10). 49 (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], 479 (para 101): AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], as cited in Union of India v. Vipan Kumar Jain, (2005) 9 SCC 579, 583 (para 10). 50 (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]. 51 J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103; JAIN, Cases, Chapter X, 860. 52 Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 [LNIND 2004 SC 471] [LNIND 2004 SC 471] [LNIND 2004 SC 471], 192 (para 54): AIR 2004 SC 3114 [LNIND 2004 SC 471] [LNIND 2004 SC 471] [LNIND 2004 SC 471]. 53 (2000) 7 SCC 129 [LNIND 2000 SC 1166] [LNIND 2000 SC 1166] [LNIND 2000 SC 1166], 134-35 (paras 9, 10 and 11): AIR 2000 SC 2778 [LNIND 2000 SC 1166] [LNIND 2000 SC 1166] [LNIND 2000 SC 1166], following Maneka Sanjay Gandhi v. Rami Jethmalani, (1979) 4 SCC 167 [LNIND 1978 SC 342] [LNIND 1978 SC 342] [LNIND 1978 SC 342]: (1979) 2 SCR 378 [LNIND 1978 SC 342] [LNIND 1978 SC 342] [LNIND 1978 SC 342]: AIR 1979 SC 468 [LNIND 1978 SC 342] [LNIND 1978 SC 342] [LNIND 1978 SC 342]. 54 W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], 763 (paras 100 and 101): AIR 2002 SC 3588 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], relying on Maneka Gandhi v. U.O.I., (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]. 55 1996 (6) Scale (SP) 1(2): 1996 JCC 561. 56 Generally, on bias, see, ROSS CARNATION, Disqualification of Judges for Interest, Association or Opinion, (1979) Pub Law 237. See also Amar Nath Chowdhury v. Braithwaite & Co. Ltd., (2002) 2 SCC 290 [LNIND 2002 SC 27] [LNIND 2002 SC 27] [LNIND 2002 SC 27], 292-93 (para 6): AIR 2002 SC 678 [LNIND 2002 SC 27] [LNIND 2002 SC 27] [LNIND 2002 SC 27]. 57 Dimes v. Grand Junction Canal, (1852) 3 HLC 759. 58 See, R. v. Hendon R.D.C., ex parte Chorley, (1933) KB 696; R. v. Barnsley Licensing Justices, exparte Barnsley and District Licensed Victuallers' Association, (1960) 2 QB 167. 59 See, Gullapalli Nageswara Rao v. State of Andhra Pradesh, AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580; Mineral Development Ltd. v. State of Bihar, AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]: 1960 SCJ 643: (1960) 2 SCR 609 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]. 60 Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10: 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 61 Annamalai v. State of Madras, AIR 1957 AP 739 [LNIND 1955 AP 100] [LNIND 1955 AP 100] [LNIND 1955 AP 100]. Also see, Air Corporation Employees Union v. Vyas, (1962) LLJ 31. 62 Jeejeebhoy v. Assistant Collector, Thana, AIR 1965 SC 1096 [LNIND 1964 SC 253] [LNIND 1964 SC 253] [LNIND 1964 SC 253]: 1965 (1) SCR 636. 63 See, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103; JAIN, Cases, Chapter X, 860. 64 See, A.K. Kraipak v. U.O.I., AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. Also see, under 'Group Decision', infra, this chapter and 'Initial Recommendation,'. 65 The Mohapatra ruling has been applied by the Gujarat High Court in Kumkum Prakasham v. State of Gujarat, AIR 1990 Guj 12 [LNIND 1989 GUJ 184] [LNIND 1989 GUJ 184] [LNIND 1989 GUJ 184], having a parallel fact-situation.

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66 Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50]: 1963 (2) LLJ 392. Also see, State of Punjab v. Karam Chand, AIR 1959 Punj 402. 67 Ramjag Singh v. State of Bihar, AIR 1958 Pat 7. 68 Frome United Breweries Co. v. Bath Justices, (1926) AC 587. 69 Taylor v. National Union of Seamen, (1967) 1 WLR 532. 70 Amolak Chand v. S.D.O., AIR 1962 Ass 80. 71 AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]; JAIN, Cases, Chapter X, Sec, B, 874. Also see, State Road Transport Corporation v. Satyanarayan Transport, AIR 1965 SC 1303 [LNIND 1964 SC 638] [LNIND 1964 SC 638] [LNIND 1964 SC 638]. 72 AIR 1964 MB 111. 73 R. v. Deal Justices, ex parte Curling (1881) 45 LT 439. 74 Durga Shankar v. State, AIR 1982 Ori 20 [LNIND 1981 ORI 64] [LNIND 1981 ORI 64] [LNIND 1981 ORI 64]. 75 Reg. v. Liverpool JJ., ex p. Topping (D.C.), (1983) 1 WLR 122. 76 Judicial Review of Administrative Action, 262-64 (1980). Also see, JACKSON, Natural Justice, 26-32 (1979). 77 CROSS L.J. in Hannatn v. Bradford Corp., (1970) 1 WLR 937. JACKSON, Natural Justice, 26-32 (1979), thinks that there is no antithesis between the two tests. 78 SLAUGHTON, J. in Tracomin S.A. v. Gibbs Nathaniel (Canada) Ltd., (1985) 1 Lloyds Rep 586, 596. In Parthasarathi v. State of A.P., AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280]: (1974) 3 SCC 459, the Supreme Court of India has characterised both the tests as inconsistent with each other. Also see, Rawlings, (1980) Public Law 122; Alexis, (1979) Public Law 143, 79 (1968) 3 All ER 304; JAIN, Cases, Chapter X, Sec. B, 866. 80 For comments on the Lannon case, see, 43 AUSTRALIAN L.J., 71 (1969) and 3 New Zealand Uni. L.R., 440-2 (1968-69). Also WADE, Bias--A Question of Appearance or Reality, 85 LQR 23 (1969); Hannam v. Bradford City Council, (1970) 2 All ER 690, infra, note 108; Re Godden, (1971) 3 All ER 20. 81 (1970) 2 All ER 690. 82 AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575; JAIN, Cases, Chapter X, Sec, B., 869. For further comments on Manak Lal, see under heading: 'Waiver', infra, this chapter. Also see, S.K. Golap v. Bhuban Chandra Panda, AIR 1991 Cal 295 [LNIND 1990 CAL 299] [LNIND 1990 CAL 299] [LNIND 1990 CAL 299]. 83 Decision by the High Court was set aside in the instant case because the judge, while practising as a lawyer prior to his appointment as a judge, had appeared in a writ petition in a case on behalf of the petitioners in the instant case. Though the judge might not be actually biased, the test was not that of 'actual bias but of reasonable likelihood of bias'. See, S.K Golap v. Bhuban Chandra Panda, AIR 1991 Cal 295 [LNIND 1990 CAL 299] [LNIND 1990 CAL 299] [LNIND 1990 CAL 299]. 84 DE SMITH, Judicial Review of Adm. Action, 263 (1980). 85 AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. See also B.P. Yadav (Dr.) v. Ratneshwar Prasad Singh (Dr.), (1996) 8 SCC 494, 501 (para 25): AIR 1996 SC 3202. Also see, supra, Chapter IX: JAIN, Cases, Chapter X, Sec. B, 877. 86 For a comment on this case see, M.P. JAIN, Bias and Administrative power, 13 JILL 362 (1971); also, IV ASIL, 88 (1970). Also see, infra, under 'Group Decision', this chapter AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. 87 Also see under heading: 'Initial Recommendation', infra, this chapter. 88 S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280]: (1974) 3 SCC 459. 89 The Court applied the "reasonable suspicion of bias" test in D.L. Ramesh v. Karnataka, AIR 1978 Kant 3 [LNIND 1977 KANT 175] [LNIND 1977 KANT 175] [LNIND 1977 KANT 175]. 90 AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: 1977 (1) LLJ 68: (1976) 3 SCC 585 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]; JAIN, Cases, Chapter X. 91 On Waiver, see, infra, this chapter AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]:

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(1993) 4 SCC 10: (1993) 2 LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 92 See, Manak Lal v. Prem Chand, AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575. 93 AIR 1973 All 552. 94 Also see, D.K. Khanna v. U.O.I., AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND 1972 HP 41] [LNIND 1972 HP 41]. 95 K. Chelliah v. Chairman, Industrial Finance Corporation, AIR 1973 Mad 122 [LNIND 1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281]. 96 AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]: (1985) 4 SCC 417; JAIN, Cases. Chapter X, Sec. D., 917. 97 S.K. Golap v. Bhuban Chandra Panda, AIR 1991 Cal 295 [LNIND 1990 CAL 299] [LNIND 1990 CAL 299] [LNIND 1990 CAL 299]. 1 Kamini Kumar v. State of West Bengal, AIR 1972 SC 2060 [LNIND 1972 SC 325] [LNIND 1972 SC 325] [LNIND 1972 SC 325]: (1972) 2 SCC 420. 2 State of Uttar Pradesh v. Nooh, AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99]: 1958 SCR 595. Also, Andhra-Scientific Co. v. Seshagiri Rao, AIR 1967 SC 408 [LNIND 1960 SC 340] [LNIND 1960 SC 340] [LNIND 1960 SC 340]: 1961 (2) LLJ 117; Kumari Kharbanda v. State of Himachal Pradesh, ILR 1974 HP 1134. 3 Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10: 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 4 Manak Lal v. Prem Chand, AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575. 5 S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280]: (1974) 3 SCC 459. Also see, supra, note 16. 6 J.J. Mody v. State of Bombay, AIR 1962 Guj 197 [LNIND 1961 GUJ 29] [LNIND 1961 GUJ 29] [LNIND 1961 GUJ 29]. 7 Metropolitan Properties Ltd. v. Lannon, 1968] 3 All ER 304. 8 Andhra Scienrific Co. v. Seshagiri Rao, AIR 1967 SC 408 [LNIND 1960 SC 340] [LNIND 1960 SC 340] [LNIND 1960 SC 340]: 1961 (2) LLJ 117. Also see, Darbari Rant v. State of U.P., AIR 1956 All 578 [LNIND 1956 ALL 44] [LNIND 1956 ALL 44] [LNIND 1956 ALL 44]. 9 Prem Bus Service v. R.T.A., AIR 1968 Pun 344. 10 AIR 1973 Mad 122 [LNIND 1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281]. 11 On this aspect, see, JACKSON, Natural Justice, 44-46 (1979); DE SMITH, Judicial Control of Administrative Action, 260-61 (1980). 12 Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324], 428 (para 66), following State of M.P. v. Ganekar Motghare, (1989) Supp (2) SCC 703 [LNIND 1989 SC 582] [LNIND 1989 SC 582] and State of U.P. v. Raj Kishore Bhargava, 1992 Supp (2) SCC 92. See also Md. Shoaib v. State of Bihar, JT 2001 (S2) SC 178. 13 Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324], 429-30 (paras 70-76): AIR 1994 SC 961 [LNIND 1993 SC 603] [LNIND 1993 SC 603] [LNIND 1993 SC 603], following V. Mahadevan v. D.C. Aggarwal, 1993 Supp (4) SCC 4: (1994) 26 ATC 64; Tilak Chand Magatram Obhan v. Kamala Prasad Shukla, 1995 Supp (1) SCC 21: 1995 SCC (L&S) 251; Rattan Lal Sharma v. Managing Committee, Hari Ram (Dr.) (Co-Education) Higher Secondary School, (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 25 ATC 449. 14 AIR 1989 SC 2218 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398]: (1989) 4 SCC 664: 1989 (4) SLR 220 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398]. 15 See, infra, this chapter on Waiver. 16 AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280]: (1974) 3 SCC 459. 17 AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]: (1980) 3 SCC 304: 1980 LIC 654. For fact situation of the case, see, supra, Chapter X. Also see, JAIN, Cases. Chapter IX, Sec. J, 852. 18 In the instant case, the Court took the analogy of a magistrate, but this does not seem to be to the point. A magistrate has

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nothing to do with the decision, whether to prosecute the accused or not; prosecution does not start on his advice; he merely formulates the charges on the basis of evidence before him. In the instant case, the enquiry officer not only framed the charges but even advised for holding an enquiry against the concerned person. Thus, he became associated with the idea of holding an enquiry and his commitment with the result of the inquiry became somewhat more direct and personal. 19 P.M. Kurien v. P.S. Raghavan, AIR 1970 Ker 142 [LNIND 1968 KER 68] [LNIND 1968 KER 68] [LNIND 1968 KER 68]; K.R. Chari v. Cantonment Board, Secunderabad, AIR 1961 SC 37. 20 P.M. Kurien v. P.S. Raghavan, AIR 1970 Ker 142 [LNIND 1968 KER 68] [LNIND 1968 KER 68] [LNIND 1968 KER 68]. 21 Ratan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10: 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 22 M.C. Joseph v. State of Kerala, AIR 1973 Ker 216 [LNIND 1973 KER 41] [LNIND 1973 KER 41] [LNIND 1973 KER 41]. Also see, infra, under Government Contracts, Chapter XXIII. 23 AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 4 SCC 537: (1987) 164 ITR 1; JAIN, Cases, Chapter IX, Sec. H. 786. 24 See, infra, under 'Statute may exclude Bias,' infra, this chapter. 25 Also, see, infra, under 'Necessity excludes Bias', infra, this chapter. 26 Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]at p. 72: (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]. 27 Bhupendra Kumar Singhal v. P.R. Mehta, AIR 1990 Guj 49; JAIN, Cares, Chapter IX, Sec. I, 817. 28 AIR 1992 All 298 [LNIND 1992 ALL 58] [LNIND 1992 ALL 58] [LNIND 1992 ALL 58]. 29 AIR 1984 SC 1356 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90]: (1984) 2 SCC 578: 1984 (2) LLJ 17 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90]; JAIN, Cases, Chapter X, Sec. B, 881. 30 For example, the appellant challenged the DCCS, used offensive and abusive language. stormed into his office etc. 31 Supra, Chapter VIII, Union of India v. Tulsirain Patel, AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]: (1985) 3 SCC 398: 1985 (2) LLJ 206 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219]; JAIN, Cases, 634. 32 Gurdip Singh v. State of Punjab, (1997) 10 SCC 641, 642 (para 3). See also Padma v. Hiralal Motilal Desarda, (2002) 7 SCC 564 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621]: AIR 2002 SC 3252 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621]. 33 B.P. Yadav v. Ratneshwar Prasad Singh, (1996) 8 SCC 494: JT 1996 (3) SC 283: AIR 1996 SC 494. 34 East City Defence Personnel Welfare Association v. State of A.P., (1999) 6 SCC 130 [LNIND 1999 SC 624] [LNIND 1999 SC 624] [LNIND 1999 SC 624], 136 (para 17). 35 AIR 1981 SC 2181 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424], 2196: (1981) 4 SCC 716 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424]: 1982 (1) LLJ 206 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424]. 36 Kumkum Prakashan v. State, AIR 1990 Guj 12 [LNIND 1989 GUJ 184] [LNIND 1989 GUJ 184] [LNIND 1989 GUJ 184]. 37 AIR 1989 Cal 294 [LNIND 1987 CAL 318] [LNIND 1987 CAL 318] [LNIND 1987 CAL 318]. 38 See, infra, under "A Statue may exclude Bias", this chapter. 39 See, infra, under "Prior utterances", this chapter. 40 On pecuniary bias, see, supra, this chapter (1852) 3 HLC 759. 41 AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964]: (1987) 4 SCC 611: 1988 (1) LLJ 256 [LNIND 1987 SC 697] [LNIND 1987 SC 697] [LNIND 1987 SC 697]: 1988 Crlj 158; JAIN, Cases, 882. 42 See, ALICE JACOB, Court Martials and Right to Fair Trial, 29 JILI 411 (1987). 43 Metropolitan Properties Ltd. v. Lannon, [1968] 3 All ER 304. 44 Infra, Chapter XIV & Chapter XVIII. 45 See, under heading personal bias, supra, this chapter.

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46 Ratan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10: 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 47 (1996) 4 SCC 64 [LNIND 1996 SC 692] [LNIND 1996 SC 692] [LNIND 1996 SC 692], 68 (para 13). 48 Rajinder Singh v. State of Haryana, (1998) 8 SCC 454, 456 (para 6). See also Jagat Bandhu Chakraborti v. G. C. Roy, (2000) 9 SCC 739, 740 (para 4); Charanjit Singh v. Harinder Sharma, (2002) 9 SCC 732, 734 (para 5): AIR 2002 SC 2397. 49 Metropolitan Properties Ltd. v. Lannon, [1968] 3 All ER 304. 50 (1996) 7 SCC 153 [LNIND 1995 SC 1321] [LNIND 1995 SC 1321] [LNIND 1995 SC 1321], 154, (para 7): AIR 1996 SC 1050 [LNIND 1995 SC 1321] [LNIND 1995 SC 1321] [LNIND 1995 SC 1321]. 51 Utkal University v. Nrusingha Charan Savangi (Dr.), (1999) 2 SCC 193 [LNIND 1999 SC 12] [LNIND 1999 SC 12] [LNIND 1999 SC 12], 197 (para 10): AIR 1999 SC 943 [LNIND 1999 SC 12] [LNIND 1999 SC 12] [LNIND 1999 SC 12]. 52 Rasmiranjan Das v. Sarojkanta Behera, (2000) 10n SCC 502 (para 2). 53 U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 [LNIND 1996 SC 1977] [LNIND 1996 SC 1977] [LNIND 1996 SC 1977], 118 (para 15). See also Utkal University v. Nrusingha Charan Sarngi (Dr.), (1999) 2 SCC 193 [LNIND 1999 SC 12] [LNIND 1999 SC 12] [LNIND 1999 SC 12], 196-97 (paras 9 and 10): AIR 1999 SC 943 [LNIND 1999 SC 12] [LNIND 1999 SC 12] [LNIND 1999 SC 12]. 54 Assistant Superintendent of Post Officers v. G. Mohan Nair, AIR 1999 SC 2113: (1999) 1 SCC 183. 55 D.C. Aggarwal v. State Bank of India, (2006) 5 SCC 153 [LNIND 2006 SC 315] [LNIND 2006 SC 315] [LNIND 2006 SC 315], 162-63 (paras 24 and 25). 56 D.C. Aggarwal v. State Bank of India, (2006) 5 SCC 153 [LNIND 2006 SC 315] [LNIND 2006 SC 315] [LNIND 2006 SC 315], 163-64 (paras 26 and 27), relying on D.C. Aggarwal, v. State Bank of India (2006) 5 SCC 166 (CA No. 1609 of 1994 dated 13-5-1994). 57 Report of the Committee on Ministers' Powers, 79; KEETON, The British Commonwealth, Vol. 1, 88-89 (1955). 58 See, supra, Chapter II; JAIN Cases Chapter XII, Section C. Also see under heading: Institutional decisions, Chapter X. 59 For system of tribunals in India, see, infra, Chapter XIII; also JAIN, Cases, Chapter XII. 60 (1948) AC 87. Reference to Franklin has often been made by the Supreme Court. 61 WOOLF J. in R. v. City of London Corp. ex p. Allan, (1981) 79 LGR 223. 62 See. infra, this chapter, under "Statute may exclude Bias". 63 See, A.K. Kraipak v. Union of India, AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262: (1970) 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. D.K. Khanna v. U.O.I., AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND 1972 HP 41] [LNIND 1972 HP 41]; Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]: (1985) 4 SCC 417. Also see infra, Chapter XV, under Administrative Powers. 64 H.C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141]: 1960 (3) SCR 742; J.Y. Kondala Rao v. A.P. State Road Transport Corp., AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]; Venkatachalam Iyer v. State of Madras, AIR 1957 Mad 623 [LNIND 1956 MAD 183] [LNIND 1956 MAD 183] [LNIND 1956 MAD 183]. 65 K.S. Bhaskarananda v. State of Karnataka, AIR 1990 Kant 182 [LNIND 1989 KANT 22] [LNIND 1989 KANT 22] [LNIND 1989 KANT 22]; Champa Singh v. State of U.P., AIR 1973 All 552, may also be regarded as a case of policy bias. 66 Blaze and Cental (P.) Ltd. v. U.O.I., AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]. 67 This Act provides for an expeditious procedure to evict unauthorised occupants from public premise. Also see, in this connection, infra, this chapter AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66]. 68 Gullapalli Nageswara Rao v. A.P. State Road Transport Corporation (The first Gullapalli case), AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319. Also see, JAIN, Cases, Chapter X, Sec. C, 896. 69 Franklin v. Minister of Town and Country Planning, [1948] AC 87. See also under heading: 'Statute may Exclude Bias', infra, this chapter. 70 Gullapalli N. Rao v. A.P. S.R.T.C., AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]:

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1960 (1) SCR 580 (Gullapalli II). Also see, JAIN, Cases, 899. 71 Gullapalli N. Rao v. A.P.S.R.T.C., AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]at 1380: 1960 SCJ 53 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]. See also, Satyanarayanamurthy v. A.P.S.R.T.C., AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]. In Samarth Transport Co. v. Y.B. Chavan, AIR 1961 Boni 80, following Gullapalli II, Gullapalli N. Rao v. A.P.S.R.T.C., AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]at 1380: 1960 SCJ 53 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143], it was held that a Minister is not a part of the department. 72 Gurdeva Narayan v. State of Bihar, AIR 1955 Pat 131; Ramnath v. Collector, AIR 1955 Pat 345; Laxmi Narain v. A.N. Puri, AIR 1954 Cal 335 [LNIND 1953 CAL 29] [LNIND 1953 CAL 29] [LNIND 1953 CAL 29]. 73 J.Y. Kondala Rao v. A.P. State Road Transport Corporation, AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]. 74 H.C. Narayanappa v. State of Mysore, AIR 1960 SC 1073 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141]: 1960 (3) SCR 742. 75 AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]at 90: 1961 (1) SCR 642 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]. 76 T.G. Mualiar v. State of Tamil Nadu, AIR 1973 SC 974 [LNIND 1973 SC 3] [LNIND 1973 SC 3] [LNIND 1973 SC 3]: (1973) 1 SCC 336. 77 For a comment on this case, see, M.P. JAIN, Administrative Law, IX A.S.I.L. 272 (1973). Also see, supra, Chapter X, 386-395, under Institutional Decisions. 78 AIR 1980 Ori 122 [LNIND 1979 ORI 23] [LNIND 1979 ORI 23] [LNIND 1979 ORI 23]. For detailed comments on this case, see, M.P. JAIN, Administrative Law, XVI A.S.I.L., 380-81 (1980). 79 AIR 1991 SC 933 [LNIND 1990 SC 763] [LNIND 1990 SC 763] [LNIND 1990 SC 763]: 1991 Supp (2) SCC 592; JAIN, Cases, 907. Also see, R.L. Goyal v. State, AIR 1993 Raj 38. 80 Under S. 2(a) of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act, 1962, the Central Government could appoint any one as the Competent Authority under the Act. There was no restriction on the power of the Central Government to appointing an employee of the Corporation as the Competent authority. At the same time, there was no obligation on the Government to do so. 81 This Act provides for an expeditious procedure to evict unauthorised occupants from public premises. 82 Accounting & Secretarial Services Pvt. Ltd. v. U.O.I., AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66]. Also see, B.K. Mehra v. Life Insurance Corp. of India, AIR 1991 Cal 256 [LNIND 1990 CAL 182] [LNIND 1990 CAL 182] [LNIND 1990 CAL 182]. 83 Blaze and Cental (P.) Ltd. v. U.O.I., AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]. Also see, Govindarajulu, supra, Ch., X. 84 Hindustan Petroleum Corporation Ltd. v. Yashwant Gajanan Joshi, AIR 1991 SC 933 [LNIND 1990 SC 763] [LNIND 1990 SC 763] [LNIND 1990 SC 763]: 1991 Supp (2) SCC 592. 85 For discussion on Rules of Business, see, infra, Chapter XXI. 86 The Administrative Procedure Act (U.S.A.) 1946. See also, infra, this chapter.. 87 AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175]: 1992 Supp (2) SCC 651; JAIN, Cases, 912. 88 It needs to be pointed out that this case falls in the area of constitutional law and therefore, the validity of the law has been challenged. The case is being mentioned here because of the discussion of the concept of policy bias therein. 89 Kihota Hollohon v. Zachilhu, AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175]at 471: JT 1992 (1) SC 600. 90 See, Malik Ram v. State of Rajasthan, AIR 1961 SC 1575 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174]: 1962 (1) SCR 978; Nehru Transport v. Rajasthan, AIR 1963 SC 1098 [LNIND 1962 SC 432] [LNIND 1962 SC 432] [LNIND 1962 SC 432]. In Kashi Pd. v. Regional Transport Authority, AIR 1961 All 214 [LNIND 1960 ALL 2] [LNIND 1960 ALL 2] [LNIND 1960 ALL 2], objections were heard by a committee of officials against a scheme prepared by the transport department. The procedure was held not invalid. 91 (1937) MLJ 202.

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92 Sirpur Paper Mills v. Commissioner; Wealth Tax, AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216]: (1970) 1 SCC 795: (1970) 77 ITR 6. See, supra, Chapter VIII and, infra, Chapter XIV; JAIN, Cases, Chapters VII, Sec. C. and Chapter XIII, Sees. J&K. 93 See, supra, Chapter II; JAIN, Cases, Chapter XII, See C. 94 Also see, supra, under Institutional Decisions, Chapter X, 386-395. 95 SCHWARTZ, Adm. Law, 304 (1984). Also, SCHWARTZ, Recent Developments in American Adm. Law, (1980) LVIII Can B.R., 319; SCHWARTZ, Casebook, 490-96 (1988). 96 Paras. 40, 303. See, JAIN, Cases, Chapter XII, Sec. B., for relevant excerpts from the Report of the Franks Committee. 97 WADE, Administrative Law, 866 (1982). 98 K.S. Bhaskarananda v. State of Karnataka, AIR 1990 Kant 182 [LNIND 1989 KANT 22] [LNIND 1989 KANT 22] [LNIND 1989 KANT 22]; JAIN, Cases, Chapter X, Sec. C, 887. 99 (1970) 2 All ER 690; supra, notes, 18 and 21. For a comment on this case by PAUL JACKSON, see, 34 MLR 445. 1 R.C. Sood v. High Court of Judicature at Rajasthan, (1998) 5 SCC 493 [LNIND 1998 SC 571] [LNIND 1998 SC 571] [LNIND 1998 SC 571], 507 (para 25). 2 (2000) 7 SCC 561 [LNIND 2000 SC 2206] [LNIND 2000 SC 2206] [LNIND 2000 SC 2206], 584 (para 33), See also Oriental Insurance Co. Ltd. v. T.S. Sastry, (2004) 1 SCC 136 [LNIND 2003 SC 929] [LNIND 2003 SC 929] [LNIND 2003 SC 929], 139 (para 9). 3 Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], 20 (para 42): AIR 1999 SC 677 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109]. 4 A.K. Doshi (Dr.) v. Union of India, (2001) 4 SCC 43 [LNIND 2001 SC 615] [LNIND 2001 SC 615] [LNIND 2001 SC 615], 49-50 (paras 13 and 14). 5 AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]: 1956 Crlj 1104: 1956 SCR 506 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]. 6 See Friendly, The Federal Administrative Agencies--The Need for Better Definition of Standards (1962). 7 Premchand Jain v. State of Madhya Pradesh, AIR 1966 MP 117. 8 See, Kondala Rao v. State of Andhra Pradesh S.R.T. Corporation, AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]: (1961) 1 SCR 642, and the Mudaliar case, supra, note 88. But cf. Gullapalli Nageswara Rao v. State of Andhara Pradesh, II, AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: 1960 (1) SCR 580. 9 See, Griffith and Street, Principles of Administrative Law, 155 (1973); DE SMITH, Judicial Review of Administrative Action, 272 (1980); DAVIS, II Administrative Law Treatise, 130 (1958). 10 In re Linahan, 138 F. 2nd 650, 651-53 (1943). See also G.N. Nayak v. Goa University, (2002) 2 SCC 712 [LNIND 2002 SC 958] [LNIND 2002 SC 958] [LNIND 2002 SC 958], 723 (para 33). 11 A teetotaller may not be disqualified to deal with liquor licensing applications: see, PAUL JACKSON, Natural Justice, 40 (1979). 12 AIR 1957 AP 414, 417. See also, Joti Pd. v. Supdt. of Police, AIR 1958 Punj 327. 13 P. Sreeramulu v. State, AIR 1970 AP 114 [LNIND 1969 AP 49] [LNIND 1969 AP 49] [LNIND 1969 AP 49]. 14 Registrar, Co-operative Societies v. Dharam Guard, AIR 1961 SC 1743 [LNIND 1961 SC 212] [LNIND 1961 SC 212] [LNIND 1961 SC 212]: (1961) 31 Comp Cas 454. 15 Jose Kuttiyani v. Registrar, Co-op. Societies, AIR 1982 Ker 12 [LNIND 1981 KER 160] [LNIND 1981 KER 160] [LNIND 1981 KER 160]. 16 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524 (para 26): AIR 1998 SC 2050. 17 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524 (para 23): AIR 1998 SC 2050. 18 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524 (para 24): AIR 1998 SC 2050. 19 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 525 (para 29): AIR 1998 SC 2050.

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20 138 F 2d 650. 21 State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 524-25 (para 28): AIR 1998 SC 2050. 22 (1998) 9 SCC 677 [LNIND 1997 SC 1274] [LNIND 1997 SC 1274] [LNIND 1997 SC 1274] (paras 3 and 4). 23 A.K. Kraipak v. Union of India, AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262: (1970) 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197].. Perhaps the germs of this ruling can be found in Manak Lal v. Prem Chand, AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575. 24 D.K. Khanna v. Union of India, AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND 1972 HP 41] [LNIND 1972 HP 41]; K. Chelliah v. Chairman, I.F. Corp., AIR 1973 Mad 122 [LNIND 1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281]; Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]at p. 72: (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]; Bhupindra Kumar Singhal v. P.R. Mehta, AIR 1990 Guj 49; Ranjit Thakur v. Union of India, AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964]: (1987) 4 SCC 611. 25 G. Sarana v. Lucknow University, AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: 1977 (1) LLJ 68: (9176) 3 SCC 585. 26 G. Sarana v. Lucknow University, AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: (1976) 3 SCC 585. 27 Ratan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: 1993 (2) LLJ 549. 28 D.K. Khanna v. U.O.I., AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND 1972 HP 41] [LNIND 1972 HP 41]; supra, note 31. 29 Also see, Kirti Deshmankar v. U.O.I., AIR 1990 MP 3357: (1991) 1 SCC 104. 30 AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]; JAIN, Cases Chapter X, Sec. D, 917. 31 J. Mohapatra & Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. 32 Russsell on Arbitration, 22nd Edn., para 4.032. 33 Bihar State Mineral Development Corporation v. ENCON Builders (I)(P) Ltd., (2003) 7 SCC 418 [LNIND 2003 SC 691] [LNIND 2003 SC 691] [LNIND 2003 SC 691], 423-24 (para 18): AIR 2003 SC 3688 [LNIND 2003 SC 691] [LNIND 2003 SC 691] [LNIND 2003 SC 691]. 34 A.K. Kraipak v. U.O.I., AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262. 35 Manak Lal v. Prem Chand, AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575. 36 G. Sarana v. Lucknow University, AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: (1976) 3 SCC 585: 1977 (1) LLJ 68 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]. 37 Judicial Review of Admninistrative Action, 257 (1980). 38 J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. 39 Akhil Bharatiya Grahak Panchayat (Bombay Branch) v. State of Maharashtra, AIR 1985 Bom 1425. Also see, Krishna Bus Service P. Ltd. v. State of Haryana, AIR 1985 SC 1651 [LNIND 1985 SC 228] [LNIND 1985 SC 228] [LNIND 1985 SC 228]: (1985) 3 SCC 771; Laxmi Motor Service v. RTA, Goa, AIR 1985 Bom 436 [LNIND 1985 BOM 62] [LNIND 1985 BOM 62] [LNIND 1985 BOM 62]. Also see, supra, this chapter, under Policy Bias. AIR 1991 SC 933 [LNIND 1990 SC 763] [LNIND 1990 SC 763] [LNIND 1990 SC 763]: 1991 Supp (2) SCC 592 40 This Act provides for an expeditious procedure to evict unauthorised occupants from public premises. 41 AIR 1991 Cal 256 [LNIND 1990 CAL 182] [LNIND 1990 CAL 182] [LNIND 1990 CAL 182]. 42 The same principle has been applied by the Supreme Court in Maganlal Chhagganlal v. Municipal Corporation of Greater Bombay Corp., AIR 1974 SC 2009 [LNIND 1974 SC 151] [LNIND 1974 SC 151] [LNIND 1974 SC 151]: (1974) 2 SCC 402. See also State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 [LNIND 2006 SC 141] [LNIND 2006 SC 141] [LNIND 2006 SC 141], 283 (para 14). 43 M. Madhavan Pillai v. K.A. Balan, AIR 1979 Ker 120 [LNIND 1978 KER 266] [LNIND 1978 KER 266] [LNIND 1978 KER

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266]. 44 Franklin v. Minister of Town and Country Planning, [1948] AC 87. 45 Jeffs v. N.Z. Dairy Production and Marketing Board, (1967) AC 551; supra, JAIN, Cases, Chapter IX, Sec. I, 798. 46 See R.R.S. TRACEY, Disqualified Adjudicator: The Doctrine of Necessity in Public Law 1982 Pub Law, 628. On 'Necessity excludes Bias' see, infra, this chapter. 47 DE SMITH, Jud. Rev. of Adm. Action, 275 (1980). 48 G. Sarana v. Lucknow University, AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: (1976) 3 SCC 585: 1977 (1) LLJ 68 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]. T.P. Dave v. Lodge Victoria, AIR 1963 SC 1144 [LNIND 1962 SC 446] [LNIND 1962 SC 446] [LNIND 1962 SC 446]; P.M. Kurien v. P.S. Raghavan, AIR 1970 Ker 142 [LNIND 1968 KER 68] [LNIND 1968 KER 68] [LNIND 1968 KER 68]; Baidyanath Mahapatra v. State of Orissa, AIR 1989 SC 2218 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398]: (1989) 4 SCC 664. 49 Manak Lal v. Prem Chand, AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]: 1957 SCR 575. See also State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 [LNIND 2006 SC 141] [LNIND 2006 SC 141] [LNIND 2006 SC 141], 283 (para 14): 1957 SCR 575 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154]. 50 AIR 1988 SC 705 [LNIND 1988 SC 108] [LNIND 1988 SC 108] [LNIND 1988 SC 108]. Also, Madhya Pradesh v. Ashok Deshmukh, AIR 1988 SC 1240 [LNIND 1988 SC 312] [LNIND 1988 SC 312] [LNIND 1988 SC 312]; Sant Ram v. State, AIR 1989 HP 15 [LNIND 1987 HP 18] [LNIND 1987 HP 18] [LNIND 1987 HP 18]. 51 See P. Sreeramulu v. A.P., AIR 1970 AP 114 [LNIND 1969 AP 49] [LNIND 1969 AP 49] [LNIND 1969 AP 49]. 52 DE SMITH, Jud. Rev. of Adm. Action (1980), at 275. 53 Also see, infra, next Chapter on Waiver. 54 J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. 55 G. Sarana v. Lucknow University, AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239]: (1976) 3 SCC 585. 56 J. Mohapatra and Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. 57 See, Motilal Padampat Sugar Mills v. Uttar Pradesh, AIR 1979 SC 621 [LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382]: (1979) 2 SCC R 409; infra, Chapter XXII, under Promissory Estoppel. 58 (1927) 2 KB 475. 59 Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10. 60 As cited in State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 [LNIND 2006 SC 141] [LNIND 2006 SC 141] [LNIND 2006 SC 141], 283-84 (para 16). 61 J. Mohapatra & Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. Also see, WADE, Administrative Law, 426 (1982): DE SMITH, Jud. Rev. of Adm. Action, 276 (1980); R.R.S. TRACEY, Disqualified Adjudicator. 62 In Mary Teresa Dias v. Hon'ble Acting Chief Justice, AIR 1985 Ker 245 [LNIND 1985 KER 105] [LNIND 1985 KER 105] [LNIND 1985 KER 105], the doctrine of necessity was applied to the High Court hearing a writ petition by a person whom it did not recommend for appointment as a district judge. The Court observed: "When the High Court makes the recommendation and it is challenged before the same Court, the Judges of that Court are bound to hear the petition "ex necessitate"--a region where the principle of natural justice, in any case, have to yield." 63 Election Commissioner of India v. Subramaniam Swamy (Dr.), (1996) 4 SCC 104 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843], 117 (para 16): AIR 1996 SC 1810 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843]. See also State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 [LNIND 2006 SC 141] [LNIND 2006 SC 141] [LNIND 2006 SC 141], 283 (para 15). 64 Election Commissioner of India v. Subramaniam Swamy (Dr.), (1996) 4 SCC 104 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843], 118 (para 17): AIR 1996 SC 1810 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843], followed in Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324], 432-33 (paras 79 and 83). 65 Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324],

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432-33 (paras 79 and 83), following J. Mohapatra and Co. v. State of Orissa, (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]; Institute of Chartered Accountants of India v. L.K. Ratna, (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 1 ATC 714: AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]and Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843]. 66 Election Commission of India v. Dr. Subramaniam Swamy, (1996) 4 SCC 104 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843], 117 (para 15): AIR 1996 SC 1810 [LNIND 1996 SC 843] [LNIND 1996 SC 843] [LNIND 1996 SC 843]. See also D.C. Aggarwal v. State Bank of India, (2006) 5 SCC 153 [LNIND 2006 SC 315] [LNIND 2006 SC 315] [LNIND 2006 SC 315], 164 (para 28). 67 South India Cashew Factories Workers' Union v. Kerala State Cashew Development Corpn. Ltd., (2006) 5 SCC 201 [LNIND 2006 SC 390] [LNIND 2006 SC 390] [LNIND 2006 SC 390], 206 (para 13), relying on Delhi Cloth and General Mills Co. Ltd. v. Labour Court, (1970) 1 LLJ 23 [LNIND 1969 SC 247] [LNIND 1969 SC 247] [LNIND 1969 SC 247] (SC) and Saran Motors (P.) Ltd. v. Vishwanath, (1964) 2 LLJ 139 [LNIND 1964 SC 113] [LNIND 1964 SC 113] [LNIND 1964 SC 113] (SC). 68 Institute of Chartered Accountants of India v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]at p. 72: (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]. 69 Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10; followed in Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324], 432-33 (paras 79 and 83). 70 Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]: (1985) 4 SCC 417. 71 On Public Service Commissions, see M.P. JAIN, Indian Constitutional Law, 795-801 (1987). 72 Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]: (1985) 4 SCC 417. 73 Ref., Javid Rasool Bhat v. Jammu & Kashmir, AIR 1984 SC 873 [LNIND 1984 SC 40] [LNIND 1984 SC 40] [LNIND 1984 SC 40]: (1984) 2 SCC 631; Nagarajan v. Mysore, AIR 1966 SC 1942 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67]: 1966 (3) SCR 682. 74 (1993) 2 All ER 726. 75 Dimes v. Grand Junction Canal, (1852) 3 HLC 759. 76 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 570 (para 13): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 329 (para 8): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 77 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 570 (para 14): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 329 (para 9): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 78 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 570 (para 15): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 329-30 (para 10): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 79 (1863) 143 ER 414, 420: 14 CBNS 180: (1861-73) All ER Rep Ext 1554, as cited in Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 570 (para 15): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324]. 80 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 571 (para 15): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 329-30 (para 10): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 81 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 571 (para 16): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 330 (para 11): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 82 (1914) 1 KB 160, 199: 83 LJKB 86. 83 1943 AC 627: (1943) 2 All ER 337: 112 LJKB 529 (HL).

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84 1911 AC 179: 80 LJKB 796: (1911-13) All ER Rep 36, 38C-F (HL). 85 (1885) 10 AC 229: 54 LJMC 81: 53 LT 151. 86 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 572 (para 19): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Divisional Manager, Plantation Division, Andman & Nicobar Islands v. Munnu Barrick, (2005) 2 SCC 237, 243 (paras 20 and 21): AIR 2005 SC 1158 [LNIND 2004 SC 1258] [LNIND 2004 SC 1258] [LNIND 2004 SC 1258]; Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 331-32 (para 14): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319]. 87 (1855) 2 Macq 1, 8: 25 LTOS 282 (HL). 88 (1877-78) 3 AC 614, 623 (PC). 89 (1885) 10 AC 229, 240. 90 (1885) 55 LJRD 39, 41. 91 (1890) 24 QBD 712. 92 (1885) 55 LJRD 39. 93 (1963) 1 QB 539, 578: (1962) 1 All ER 834: (1962) 2 WLR 716 (CA). 94 (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]. 95 (1967) 2 QB 617, 630: (1967) 1 All ER 226: (1967) 2 WLR 962. 96 (1976) 1 WLR 1255: (1976) 2 All ER 865 (HL). 97 (1977) 1 WLR 766: (1977) 3 All ER 452 (CA). 1 (1605) 12 Co Rep 114: 77 ER 1390. 2 (1605) 6 Co Rep 486, 52-a: 77 ER 326. See also State of U.P. v. Sheo Shanker Lal Srivastava, (2006) 3 SCC 276 [LNIND 2006 SC 141] [LNIND 2006 SC 141] [LNIND 2006 SC 141], 283 (para 13). 3 (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617], 245-47 (paras 22-23): AIR 1999 SC 2583 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617]. 4 (1971) 2 All ER 1278: (1971) 1 WLR 1578 (HL). 5 (1971) 2 All ER 89: (1971) 1 WLR 487. 6 (1980) 2 All ER 368: (1980) 1 WLR 582 (CA). 7 (1996) 8 Admn LR 351. 8 (1987) 1 All ER 1118: 1987 AC 625: (1987) 2 WLR 821 (CA). 9 1959 NZLR 1014. 10 1964 AC 40: (1963) 2 All ER 66: (1963) 2 WLR 935 (HL). 11 (1969) 2 All ER 274: 1970 Ch 345: (1969) 2 WLR 1294. 12 1990 IRLR 344. 13 (1971) 2 All ER 1278: (1971) 1 WLR 1578 (HL). 14 (1971) 2 All ER 89: (1971) 1 WLR 487. 15 (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680]: 1996 SCC (L&S) 717: AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680]. 16 (1996) 5 SCC 460: AIR 1996 SC 2736. 17 Canara Bank v. Debasis Das, (2003) 4 SCC 557 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], 570 (para 12): AIR 2003 SC 2041 [LNIND 2003 SC 324] [LNIND 2003 SC 324] [LNIND 2003 SC 324], per PASAYAT, J. See also Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319], 329 (para 7): AIR 2005 SC 2090 [LNIND 2005 SC 319] [LNIND 2005 SC 319] [LNIND 2005 SC 319].

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18 Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639]: AIR 1990 SC 1480 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639]. 19 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], 758 (para 31): AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184: (1993) 25 ATC 704. 20 (1998) 4 SCC 310 [LNIND 1998 SC 428] [LNIND 1998 SC 428] [LNIND 1998 SC 428], 314 (para 9): AIR 1998 SC 2311 [LNIND 1998 SC 428] [LNIND 1998 SC 428] [LNIND 1998 SC 428]: 1998 SCC (L&S) 1129. 21 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], 758: AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184: (1993) 25 ATC 704.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XII FAILURE OF NATURAL JUSTICE

CHAPTER XII FAILURE OF NATURAL JUSTICE The Privy Council has said that 'it has long been settled law' that a decision which offends against the principles of natural justice is outside the jurisdiction of the decision-making authority.1 Likewise Lord Russell has said :2 It is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does not by the Act require, in the particular procedures, compliance with those principles.

The rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of power.3 Violation of natural justice is...to be classified as one of the varieties of wrong procedure, or abuse of power, which transgress the implied conditions which Parliament is presumed to have intended.4 1. VOID / VOIDABLE (a) Introductory The principles of natural justice (audi alteram partem) have been characterised by the Supreme Court as "foundational and fundamental concepts".5 A few questions of some importance and complexity which have been cropping up before the courts time and again are : When an authority required to observe natural justice in making an order, fails to do so, should the order made by it be regarded as void or voidable? What are the implications of any such characterisation? Generally speaking, a voidable order means that the order was legally valid at its inception, and it remains valid thereafter until it is set aside or quashed by a court, that is, it has legal effect up to the time it is quashed. On the other hand, a void order is no order at ail from its inception; it is a nullity and void ab initio.6 Before we go further, it may be necessary to enter into a caveat at this place with respect to a void order. Although such an order may be deemed to be void ab initio, the uncertainties of Administrative Law are such that in most cases a person affected by such an order cannot be sure whether the order is really valid or

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flawed or not until the court decides the matter. An order "bears no brand of invalidity upon its forhead." Therefore, the affected person cannot just ignore the order treating it as a nullity or " non-est". He has to go to a court for an authoritative determination as to the nature of the impugned order.7 Thus, a court action becomes a necessity even when an order may be void. For example, a challenge to an order as nullity for failure of natural justice gives rise to the following crucial questions : Was the concerned decision-making authority obligated to follow natural justice in passing the order in question? Did it fail to observe natural justice? As the discussion in the previous pages shows, there is quite a good deal of uncertainty on both these points. Megarry, J., brings out this point clearly :8 "A decision reached by a tribunal wholly outside its jurisdiction and in complete defiance of natural justice is about as void as anything can be : but if nobody who is entitled to challenge or question it chooses to do so, it remains in being."

Thus, as the Privy Council has emphasized in Calvin,9 unless an order is declared void by a competent court, it may have some effect or existence in the eyes of law. For example, as regards the question whether there can be an appeal from such a decision, the Privy Council has emphasized that the decision cannot be considered as "totally void, in the sense of being legally non-existent. So to hold would be wholly unreal." The Privy Council has emphasized that a void decision cannot be regarded as being completely nonexistent for purposes of appeal. As a matter of fact, the decision, even though void, may lead to serious consequences for the concerned party. Its consequences would remain in effect unless and until the decision is challenged. So, the decision would have sufficient existence in law to justify an appeal. In the words of the Privy Council : "A decision of an administrative or domestic tribunal, reached in breach of natural justice, though it may be called, indeed it may be for certain purposes "void",is nevertheless susceptible of an appeal".The Privy Council has suggested that this condition might be better expressed by saying that the decision is "invalid and vitiated". 'Void' dictionarily means 'ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid.'10 "A 'void' thing is nothing; it has no legal effect whatsoever; and no right whatever can be obtained under it or grow out of it. In law it is the same thing as if the void thing had never existed."11 The order, passed by an authority without the approval of the higher authority as required by the statute, is non est and is therefore void. Its validity can be questioned or invalidity be set up in any proceedings or at any stage12 but within limitation.13 Unless an order of the Court is obtained, even an invalid order enjoys the presumption of validity. The meaning of void is relative, depending upon willingness of the Court to grant relief.14 The order or action, if ultra vires the powers, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. In the instant case the acquisition proceedings had become final in all respects including acceptance of compensation, hence it was held that the High Court was not justified in quashing the notification.15 Nevertheless, conceptually, there is a lot of difference between a void and avoidable order. The question arises in various contexts and has a number of ramifications. It has great practical value insofar as the courts take recourse to conceptualists logic to answer a number of questions. For example, the following are some of the questions which arise in regard to orders passed infringing natural justice and which the courts have sought to answer by reasoning based on differentiation between void and avoidable orders, though not always with entire satisfaction : (i) (ii) (iii) (iv)

Can infringement of natural justice be waived by the person affected? What is the effect of privative clauses on such orders? Are they protected? Can the defect of failure of natural justice be cured later by the same body or by a higher body? Can the court issue a writ (certiorari) to quash such an order without the affected person having taken recourse to the alternative remedy available under the statute in question?

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(v) (vi) (vii) (viii) (ix)

Can the person affected ignore such an order without incurring any liability, civil or criminal? Can the government seek to enforce an order challenged as void because of the failure of natural justice pending the court's decision on the matter? Who can challenge such an order? If the law prescribes a time-limit within which the order may be challenged, can it be challenged after the period of limitation is over ? Can an order be challenged in collateral proceedings or only in direct proceedings to set it aside?

Usually, a violable order cannot be challenged in collateral proceedings. It has to be set aside by the court in separate proceedings taken for the purpose. Suppose a person is prosecuted criminally for infringing an order. He cannot then plead that the order is voidable. He can raise such a plea if the order is void. An aggrieved person need not always challenge a void order and seek a prerogative order or injunction or declaration as a mechanism of direct attack, as he can impugn the order collaterally. Certiorari and not a declaration is regarded as a suitable remedy for setting aside a voidable decision.16 Declaration is of use against an action which is ultra vires and void ab initio.17 The courts seek to answer the questions mentioned here by taking recourse to void/voidable dichotomy, but their responses have not always been consistent. As De Smith points out, the case-law on the point is far from being coherent.18 The main reason for this state of affairs is that the courts, at times, seek to make compromises between theory and pragmatism, keeping in view administrative exigencies, so as not to unduly hamper administrative process. Thus, voidness is a relative, and not an absolute, concept. 2. POSITION IN ENGLAND The controversy between void and avoidable is making English Administrative Law rather complicated.19 The present controversy in England as regards void and avoidable orders appears to have come into sharp focus with the Privy Council decision in Durayappah v. Fernando .20 The concerned Minister dissolved the Jaffna Municipal Council in Ceylon on the ground of incompetence. The Minister gave no hearing to the council before superseding it. The Mayor challenged the order without associating with him the council members. The Privy Council ruled that although the Minister ought to have observed natural justice in passing the order, nevertheless, no relief could be given since the Minister's order was only "voidable" and not a "nullity",and as it had been passed against the municipal council, it could not be challenged by the Mayor alone; the order could have been challenged by the council. Had the council challenged the order, it would have been void ab initio. Had the order been a nullity, it could have been challenged by anyone having a legitimate interest in the conduct of the council and the council would be deemed to be in office. But since the order was voidable and not a nullity, it could be set aside only at the instance of the person against whom it was passed, i.e. in the present case, the council. The Mayor alone had no right as such to complain independently of the council because the Mayor had no office independently of the council and when the council was dissolved, the office of the Mayor was also dissolved along with it.21 A few years earlier, a similar question had arisen before the House of Lords in Ridge v. Baldwin .22 The watch committee dismissed a chief constable without observing natural justice. He appealed to the Home Secretary who confirmed the committee's order. Under the relevant law, the decision of the Home Secretary was "final and binding".The chief constable then came to the court for a declaration that his dismissal was a nullity. The question was whether his application was maintainable for it was argued against it that the decision of the Home Secretary was final and binding and that appeal to him by the chief constable amounted to waiver by him. Lord Reid took the position that the decision of the watch committee was a nullity because of the failure of natural justice on its part. He referred to the argument that the decision of the committee was voidable and not void, but rejected the same following observation :23 Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void... I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.

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He also ruled that there was no waiver24 on the part of the chief constable in appealing to the Home Secretary. Where two remedies are available, there is no general rule that by going to some other tribunal, the person concerned puts it out of his power thereafter to assert his rights in a court. As to the argument that the decision of the Home Secretary was final and binding, Lord Reid argued that in this case the Home Secretary had not given a hearing to the appellant and decided the matter on his own independent judgment. He had merely decided that there was sufficient material on which the watch committee could properly exercise its power of dismissal. Therefore, the only operative decision was that of the watch committee and it was a nullity, the statement by the Home Secretary could not make it valid. By a majority, the House held the dismissal of the chief constable "null and void".25 In Durayappah, the Privy Council did not follow the Ridge decision on this point. In fact, the Privy Council misinterpreted the decision of Lord Morris and mistook the minority view as the majority view and held the order to be voidable.26 Durayappah has been subjected to critical comments by several scholars.27 The preponderance of legal academic opinion has been that an adjudicative decision infringing natural justice should be regarded as void and not merely avoidable. A fundamental question which arises is whether in case of non-observance of natural justice, should relief follow as a matter of course or should the court claim discretion to give or not to give relief? Durayappah made it a matter of court's discretion. Wade criticises this approach. He asserts that for centuries natural justice has been enforced as a matter of law and not of discretion. This is what he says further in this regard :28 One motive for holding administrative acts to be voidable, when according to principle they are void, may be a desire to extend the discretionary power of the court ... There are grave objections to giving the courts discretion to decide whether governmental action is lawful or unlawful : the citizen is entitled to resist unlawful action as a matter of right, and to live under the rule of law, not the rule of discretion ... If the courts were to undermine the principle of ultra vires by making it discretionary, no victim of an excess or abuse of power could be sure that the law would protect him.

He again observes :29 ".... The motive was a desire to enlarge judicial discretion .... [lf] the decision were merely voidable, the court need quash it only in case of 'a real substantial miscarriage of justice.' This policy is open to the objection that it would introduce dangerous uncertainty--one might say, palm-tree injustice. Natural justice has for centuries been enforced as a matter of law and not of discretion .... The right to natural justice should be as firm as the right to personal liberty. This is a vital part of the rule of law."

Another serious objection, according to Wade, to holding the action avoidable is that the litigant is then deprived of what is often his best and sometimes his only remedy, a declamatory judgment,30 since it is of use only against action which can be declared to be ultra vires, i.e. void ab initio. But his other argument against Durayappah approach stems from the foundations on which the institution of judicial review is based in England. He points out that the courts in England can control statutory powers only on two grounds- ultra vires and error on the face of the record (which is regarded as an exception to the basic ultra vires rule). The fundamental principle of Administrative Law is the doctrine of ultra vires. Courts cannot interfere with an intra vires decision, i.e. a decision within jurisdiction and displaying no error on its face. The courts have, therefore, to stretch the doctrine of ultra vires, i.e. lack of jurisdiction, to cover all the forms of error which they need to control and which yet do not appear on the record. Therefore, bad faith, breach of natural justice, irrelevant considerations, "no-evidence",all these must somehow be fitted into this concept. For unless the court can show that the order is unauthorised, i.e. outside jurisdiction, it has no constitutional warrant to intervene. The court must, therefore, postulate that Parliament impliedly required the order to be made in good faith, etc., and that violation of this requirement makes it unauthorised. This may be artificial reasoning but it is the foundation of the system of control of subordinate power.31 Accordingly, Wade categorically asserts that administrative action which is irregular and ultra vires is void and not voidable.32 He holds that the House of Lords decided the point expressly that "failure to give a hearing renders the decision void, not voidable".Wade even asserts that the presence of bias means that the tribunal is improperly constituted, so that it is without jurisdiction and its decision is void. In principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudged unfairly. Lord Wright once said :33

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If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. Wade's views are shared by many other scholars. Griffith and Street state that "failure to give a hearing renders a decision void and not merely voidable" and that "the contrary Privy Council decision in Durayappah v. Fernando cannot be regarded as good English law." At another place, they state : "The refusal of the Privy Council to allow the Mayor of a municipal council dissolved in breach of natural justice to challenge the dissolution is out of line with the recent trend of decisions."34 Similarly, de Smith states :35 ... there is a substantial body of recent judicial decisions to the effect that breach of the audi alteram partem rules goes to jurisdiction (or is akin to a jurisdictional defect) and renders an order or determination void.

Thus, the view has crystallised that failure to give a hearing renders a decision void or a nullity and not merely voidable and that Durayappah approach does not represent good law. Breach of natural justice is even regarded as going to the jurisdiction of the decision-making body so as to make an order or decision made by it void if it denies natural justice.36 This view has been put into effect in many cases. In Malloch v. Aberdeen Corporation, 37 the House of Lords characterised an order of dismissal of a teacher by a statutory body without giving him a hearing as a 'nullity' and as 'null and void'. In Anisminic,38 the House of Lords has stated unequivocally that failure of natural justice goes to the jurisdiction of the body concerned and gives rise to a jurisdictional error, therefore, its decision is a nullity which a privative clause in the relevant statue cannot protect.39 Lord Diplock has stated that a breach of the rules of natural justice should render the decision void40 Lord Bridge has stated in Al-Medhawi41 "... a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae."

But, in spite of this, it is not always that the courts give relief to the person who is denied a hearing. In some cases, the courts have claimed discretion to give relief or not even when denial of natural justice was established. One such case is Glynn v. Keele University 42 where the court refused to give any relief to the students against whom the university had taken disciplinary action without observing natural justice. The court did not articulate the reasons for doing so : it merely said that the disciplinary action was "intrinsically a perfectly proper one". May be the court did not want to intervene because the punishment meted out to the students was mild and not severe so as to affect their future careers. The court said that nothing the students could have said could have affected the decision reached. In some cases, the courts have asserted, while denying relief, that the case was so clear that hearing would have been a useless formality as nothing that the person concerned could have said could have made any difference; that the outcome of the decision would have been the same had natural justice been complied with. Sometimes, the test propagated for giving relief is : there must be real likelihood of prejudice to the applicant by the failure of natural justice.43 However, this judicial attitude has been criticised by the judges themselves as well as the scholarly commentators.44 For example, Clark has observed :45 "The essential mission of the law in this field is to win acceptance by administrators of the principle that to hear a man before he is penalised is an integral part of the decision-making process. A measure of the importance of resisting the incipient abnegation by the courts of the firm rule that breach of audi alteram partem invalidates, is that if it gains ground the mission of the law is doomed to fail to the detriment of all."

Wade has characterised the doctrine that a hearing would make no difference as a "dubious doctrine."46 But, in between these two extremes, there may be some situations where the courts taking a pragmatic, rather than a theoretical, view of the matter, may justifiably resile from giving effect to the rule of voidness or nullity to its extreme logical end. This is regarded as a valid and justified approach by the scholarly opinion. For example, an absolute view of voidness may mean that a void order is challengeable in a court by any

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one. But, in practice, this is not so. A void order may be challenged in a court not by any one but only by one who has locus standi to do so. Wade himself accepts that although action which is ultra vires is properly described as void or a nullity, this voidness necessarily depends upon the right remedy being sought successfully by the right person. For example, if a person is dismissed without being heard, his dismissal may be held void if he challenges it. But if he does not challenge the same, other people have to accept it also, for, as against third parties whose rights are not infringed, a void act may well be valid if they have no legal title to challenge it. The denial of a fair hearing is a wrong which is personal to the party aggrieved. If he does not complain, it is not the business of any body else to complain. Unless the necessary proceedings are taken at law to establish the course of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. The meaning of "void" is thus relative rather than absolute, and the court may, in effect, turn 'void' acts into "valid' ones by refusing to grant remedies. Thus, he goes on to say :47 'Void' is therefore meaningless in any absolute sense. Its meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of legal relativity is borne in mind, confusion over 'void' or 'voidable' can be avoided. . . so long as the ultra vires doctrine remains the basis of administrative law, the correct epithet must be 'void.'

Similarly, De Smith emphasizes that there are degrees of nullity, that voidness is a relative concept and that what is null and void for one purpose may be valid for another. He brings out this point in the following words :48 Is it correct to say that 'there are no degrees of nullity'? If so, does it follow that ex nihilo nihil fit--out of nothing comes nothing? Because the answers to these questions are in the negative, the differences between void and voidable acts are less than one might suppose.

He points out that the propositions about the void acts are subject to major qualifications.49 In the words of Lord Diplock in Hoffman :50 "Order would be presumed to be valid unless the presumption is rebutted in competent legal proceedings by a party entitled to sue." The practical difficulty of applying the voidness rule to its logical end may be illustrated by two typical English cases. One such case is F. Hoffman La Roche & Co. A.G. v. Secretary of State for Trade and Industry .51 Following the Monopolies Commission's report on excessive profits being made on the sale of certain drugs by the appellant company, the Secretary of State made orders reducing their prices. The company sued for a declaration that the commission's procedure was contrary to natural justice and, therefore, its report and, consequently, the orders made by the Secretary of State based on that report were invalid. The company also informed the government that it would not obey the impugned order. The Secretary then sued for an injunction asking the company to obey the order in question. The company demanded from the government an undertaking that it would indemnify the company for the loss suffered by it in obeying the order if later it was held void by the court. The government refused to give any such undertaking and the question was whether the court could issue an interim injunction against the company to obey the order pending a decision on merits. The House of Lords granted an interim injunction against the company by a majority of 4 :1, pending a final decision on merits on the validity of the order in question, and upheld the government's contention not to give any such undertaking. The main arguments developed by the Lords were as follows : the instant case was not one between subject and subject; it was a "law enforcement action" in which proceedings were brought by the Crown to restrain a subject from breaking a law where the breach was harmful to the public; its purpose was "to enforce or to protect jus publicum".The impugned order was law until it was invalidated by the courts. Even where a strong prima facie case of invalidity had been shown upon the application for an interim injunction, it would still be inappropriate for the court to impose as a condition of the grant of injunction a requirement that the Crown should enter into the usual undertaking as to damages. The burden of implementing such an undertaking would fall upon public funds raised by taxation from the general public and public interest would be affected thereby. While the benefit of the order would go to those who purchase the drugs involved, the fulfilment of the undertaking would fall on the entire public.52 The company was not able to show a strong prima facie case against the validity of the order in question. If

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interim injunction were refused to the Secretary, it would mean that the law was not to be enforced and the company could charge the forbidden prices and the breach of law would continue. The decision of the Lords is based primarily on 'policy' considerations, and weak prima facie challenge of the company.53 Lord Diplock deplored the use of such terms as "voidable", "voidable ab initio", "void" or "nullity".These are concepts developed in the private law of contracts and are ill-adapted to the field of public law and create confusion.54 Lord Reid said : ".. an order made under statutory authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires." Wade supports the decision with his usual thesis that "void" does not mean "absolutely void" in the sense of a transaction which is a "nullity incapable of any legal consequences".He asserts : "Voidness is relative, not absolute... The key is not absolutism but relativity."55 Another limitation on the concept of voidness has been revealed by the Court of Appeal in R. v. Secretary of State for the Environment, .56 The Court held there that when a statute specifies a time-limit to challenge in a court an order passed by an authority under that statute (in this case six weeks), the order could not then be challenged on any ground whatsoever (even on the ground of nullity for failure of natural justice) after the lapse of the specified period of limitation. Logically, one could argue that if an order is void ab initio it could be challenged at any time without any limitation for such an order is non-est and has no existence in the eyes of law. In fact, this was the view adopted in Ostler by the Divisional Court which ruled, following the Anisminic doctrine literally,57 that the order could be challenged on the ground of breach of natural justice more than a year after it was confirmed even though the statute fixed a six week period for the purpose. But the Court of Appeal did not accept this view. On a formal basis, Anisminic58 was distinguished with the present case on the ground that while Anisminic involved a clause which completely sought to oust the jurisdiction of the court altogether, here was a clause which merely limited the time within which judicial review could be sought. The provision in question was treated more "in the nature of a limitation period than of a complete ouster." The truth however is that there are strong policy grounds and considerations as to why the voidness rule needs to be limited as regards the time period within which an order could be challenged. Public authorities need to be given security before they can embark on expensive schemes. The complainant may suffer hardship but the public interest in the finality of the administrative action is very strong. One of the arguments advanced by Lord Denying in support of the effectiveness of the prescribed time-limit to bar judicial review was that in his opinion an order vitiated by bad faith or lack of natural justice would not be "a nullity or void from the beginning. It would only be voidable."59 Wade criticises this statement. According to him, this amounts to turning a blind eye to what the House of Lords has said in Ridge v. Baldwin, or what Lord Diplock has said in Hoffman. Wade supports the Court of Appeal decision in Ostler sans the argument that an order flawed by lack of natural justice is voidable. According to him, the concept of voidness being relative and not absolute, even a void order becomes unchangeable after the prescribed time-limit.60 That the question of what effect ought to be given to the voidness concept of an administrative order is a policy question for the courts becomes very clear from the terse remark of Lord Wilberforce in Malloch61 that he saw no "public policy objection" in treating the dismissal order as null and void. Even the order of a superior court may be set aside for violation of natural justice.62 It becomes clear from the above discussion that the terms void, etc., as such do not fully suit the need of the modern Administrative Law which has to reconcile so many diverse situations of conflicting private and public interests. The concept of voidness because of the failure of the audi alteram partem rule is relative and not absolute and the courts do not now usually use the term 'void' but instead use the terms 'invalid' or 'nullity'. On the question of voidness for failure of the audi alterain partem rule, the judicial dicta in Britain is inconsistent and confusing. 3. POSITION IN INDIA In India by and large case-law has been free from the void/voidable controversy and, generally speaking, judicial thinking has been that an adjudicative order made without following natural justice is void and a nullity.63 This is in accordance with the majority view in Ridge v. Baldwin . In Suresh v. State, 64 for example, the M.P. High Court refused to follow the theory of voidable orders as expounded by the Privy

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Council in Durayappah,65 and held that an order superseding a municipality was a nullity and void because of failure of natural justice. In Jwala Prashad v. State, 66 the Rajasthan Government had superseded the Rajasthan State Road Transport Corporation (a statutory body). The erstwhile chairman of the corporation challenged the government order through a writ petition on the ground that there was denial of natural justice to the corporation. The government took recourse to the Durayappah ruling and raised a preliminary objection that the petitioner had no locus standi67 to file the petition because the order being voidable and not a nullity, only the corporation, as such, and not the chairman alone independently of the corporation, could challenge the same. The High Court left the question of void versus voidable open but ruled that the petition by the chairman was maintainable because the petitioner's right to act as chairman of the corporation had been infringed; he had been deprived of pecuniary benefits and, therefore, he could not be regarded as merely a busy body; since the order had been challenged as being null and void, it could be challenged by the petitioner even though other members of the corporation did not join him. There is no need in India to distinguish between void and avoidable orders for the purposes of locus standi to challenge the same as such a hypothesis has been questioned in England itself.68 In Shiela Devi v. Executive Engineers ,69 the Allahabad High Court has taken the view that a decision made by an authority in breach of natural justice is void ab initio, and can be challenged in a writ petition under Art. 226 even though there exists a provision for appeal and the petitioner has not exhausted the alternative remedy provided for.70 In the instant case, the facts were as follows. Under S. Section 34 of the Northern India Canal and Drainage Act, 1873, if water was supplied through a canal, and there was wastage of water, if the divisional canal officer could not locate the person through whose negligence water was being wasted, then all persons getting canal water were jointly liable. The canal authorities imposed charges on these persons for unauthorised use of canal water. The court held the order void as it was made without following natural justice. The Kerala High Court ruled in President, Commonwealth Co-op. Society v. Joint Registrar, Co-op. Societies 71 that a decision rendered contrary to the principles of natural justice was void. In Jabalpore Electric Supply Co. v. M.P. Electricity Board, 72 the Calcutta High Court opined that when an order is challenged as a nullity, the question of laches in challenging it loses considerable force. The Court argued that a void act is a nullity in law; it is not only bad but incurably bad and there is really no need for a court order to set it aside, for it is automatically null and void, though it may be convenient to have a court order declaring it to be so. A voidable order, on the other hand, is not automatically void, it is only an irregularity which may be waived; it is not to be avoided till the court sets it aside and the court enjoys discretion whether to set it aside or not. Until set aside, it remains good. Thus limitation ought not to affect the court declaring the order void for it was never valid. No doubt, the court's reasoning here emanates from the basic nature of void orders and represents a logical extension of the principle of voidness. But, as has been seen, in England, voidness is regarded as a relative, and not an absolute, principle and in Ostler,73 a statutory time-limit to challenge such an order has been held to be binding. The situation in India is slightly different in so far as Art. 226 does not incorporate any period of limitation to challenge administrative orders and no statute can dilute the power of the High Courts, under Art. 226 to entertain petitions in their discretion. But the trend of the Supreme Court cases has lately been to apply the principle of lathes rather strictly in challenges to administrative orders. Although, at times, the Court takes a more strict view on this point than may appear to be warranted,74 it is also to be appreciated that when valuable rights have been created in others by lapse of time, or costly schemes of development have been implemented, the courts may have to resort to the rule of laches so as to avoid disturbing the status quo by refusing to declare an order a nullity even if passed in violation of natural justice. Therefore, at some stage, conceptual logic has to give way to pragmatism, administrative exigencies and public interest. Thus, the affected party may lose his right to challenge an order on the ground of non-hearing because of lathes on his part and a 'void' order may remain effective. The most significant case in the series is Nawabkhan v. State of Gujarat .75 S. Section 56 of the Bombay Police Act, 1951, empowers the Police Commissioner to extern any undesirable person on certain grounds set out therein. An order of externment passed by the commissioner on the petitioner was disobeyed by him and he was prosecuted for this in a criminal court. During the pendency of his case, on a writ petition filed by the petitioner, the High Court quashed the externment order on the ground of failure of natural justice to him, as laid down in S. 59 of the Act, while passing the order. The trial court then acquitted the appellant on the criminal charge. The government appealed against the acquittal and the High Court convicted him for disobeying the order. The High Court took the position that the order in question was not void ab initio; the

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appellant had disobeyed the order much earlier (17/9/1967) than when it was quashed by the High Court (16/7/1968); the order was in existence on the date it was infringed by him; the High Court's own decision invalidating the order in question was not retroactive and did not render it " non-est" or a "nullity" from its inception but it was invalidated only from the date the court declared it to be so by its judgment. Thus, the arguments adopted by the High Court were consistent with the view that the order in question was voidable and not void. There was one lacuna, however, even in this approach of the court : in Durayappah, the Privy Council had specifically stated that if the order (held to be voidable there) were challenged by the council itself (the party affected by the order), it would then have held the order to be void ab initio. Somehow, the High Court appears to have missed this significant point. Even when held to be voidable, the order having been challenged by the person against whom it was passed, it ought to have been regarded as void ab initio, and not void from the date of the court's order. However, the matter came before the Supreme Court on appeal by the government. The Court approached the matter from a different angle. The order of externment, held the Court, affected a Fundamental Right [ Art. 19(1)(d)]76 of the appellant in a manner which was not reasonable. The order was thus illegal and unconstitutional and hence void. A determination was no determination if it was contrary to the constitutional mandate of Art. 19. On this footing, the externment order being of no effect, its violation could not be regarded as an offence. The Court ruled definitively that an order infringing a constitutionally guaranteed right made without hearing the party affected, where hearing was required, would be void ab initio and of no legal efficacy to bind the parties from the very beginning and a person cannot be convicted for non-observance of such an order. "Where hearing is obligated by a statute which affects the fundamental right of a citizen, the duty to give the hearing sounds in constitutional requirement and failure to comply with such a duty is fatal."77 Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid.78 The appellant could not thus be convicted for flouting the Police Commissioner's order which encroached upon his Fundamental Right and had been made without due hearing and was thus void ab initio and so was never really in existence. In Nawabkhan, the Supreme Court did not give a categorical ruling on the wider question of applicability of the above principle to areas other than Fundamental Rights. On the wider question regarding the effect of violation of natural justice on an order where natural justice ought to have been observed, the Court, without giving a definitive answer, said that there were three possible answers to this question, viz. : (1) (2) (3)

it spells death to the order and makes it still born so that it can be defied, ignored or attacked collaterally; or it means nullificability, not nullity, so that before disobeying it a court must declare it invalid, or it remains good and binding though voidable at the instance of a party aggrieved by a direct challenge.

The Court noted that all these various approaches have received judicial blessing from the House of Lords in the landmark case Ridge v. Baldwin .79 The Court, however, clarified two points. One, an order in violation of natural justice is void in the limited sense of being liable to be avoided by the Court with retroactive effect. So, when the order is declared void by a court, the court order goes back to the date when the impugned order had been made. "An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication." Two, an order made in violation of natural justice may be directly and collaterally challenged in legal proceedings. But the Court left open the question that when an authority infringes natural justice and passes an order, should the citizen suffer it until upturned in a legal proceeding directly or collaterally, or can he resist the injury even if the seal of authority simulates validity? Can a person defy a void order before it is declared so by the court? The Supreme Court took note of the two views prevailing on this question. One, 'law and order' will be in jeopardy and it will lead to anarchy if a person were to have discretion to disobey an order on self-determined voidness before a court declares it to be so. Two, a person commits no crime if he disobeys an invalid order.80 The Court also noted that judicial opinion in England could be found for supporting either of these two views. The Court deferred the matter for consideration in future. It also suggested that

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"legislation, rather than judicial law-making will meet the needs more adequately." Nawabkhan raises some critical issues. A few general comments may, however, be made at this place.81 It is vain to hope, as the Court does, that the legislature will clarify the delicate issues involved through legislation for, so far, the Indian Parliament has been very remiss in adopting a constructive attitude towards the problems of Administrative Law. Therefore, the issues raised here will have to be sorted out by the courts themselves as best as they can from case to case. It is unfortunate that the Supreme Court did not clarify the point under discussion, but rather added to the confusion by using three different expressions to characterise the nature of orders under discussion viz., 'voidable', 'void with retroactive force' and 'null and void'. This shows that the Court itself was not clear in its own mind about the matter. Much of the confusion in Administrative Law in India can be avoided if the rule is accepted that, generally speaking, an order made without observing natural justice (including bias), where natural justice ought to have been observed, is void ab initio. A person disobeys an administrative order at his own risk, for if he disobeys an order, and the court later holds it as not void, then he suffers the consequences, for whether an order is void or not can only be settled conclusively by a court order. Accepting the voidness rule will make adjudicatory authorities take more care in passing orders after fulfilling all the necessary formalities. It will also denude the courts of a discretion whether to set aside an order or not in case of violation of natural justice. As the later discussion will show, exercise of discretion by the courts on this point is making the confusion worse confounded. However, because of the exigencies of maintaining law and order, there may be some situations when violation of a void order may not be excusable, e.g., when a prisoner escapes from the prison thinking that the administrative order under which he has been detained is void. There may also be circumstances, as is shown by Hoffman,82 where courts may insist that an order be obeyed by the affected person even if he challenges it as void till such time that his contention is decided on merits by the court. It is an area where one general principle cannot be held applicable to all the varying situations because what has to be reconciled here is public interest with private rights. But such exceptional situations will be few and these have to be worked out by the courts on a case to case basis. There is no need to keep the whole law in a muddled condition because of a few exceptional situations. In most of the cases, the courts can meet the difficulty by using their power to grant stay orders, i.e., staying the implementation of the order challenged until the court is able to decide the question on merits.83 Also, it appears to be fair that Administrative Law makes provision for payment of compensation to a person who has suffered injury to his person or property under a void order.84 In several cases, the courts have taken a strict view of the failure of natural justice and have set aside orders on that ground. For example, in State of Gujarat v. Chaturbhai ,85 the Supreme Court quashed a notification acquiring land of, the respondent issued under the Land Acquisition Act as it was issued without giving hint hearing under Rule 4 of the Companies Acquisition Rules. In Sarjoo Prasad v. General Manager ,86 the appellant's date of birth, once accepted by the respondent, was unilaterally changed and the appellant retired from service without being given an opportunity to sustain the original date of birth. the Supreme Court referred to Binapani87 where it was held that the date of birth without giving opportunity to the concerned employee could not be altered to his disadvantage and prejudice because "an administrative order which involves civil consequences must be made in conformity with the rule of natural justice. . ." In the instant case, the appellant was not afforded any natural justice and on this ground the order correcting his date of birth and that of retiring him from service were set aside. The Court ordered that he be continued in service. The respondent could, if he so desired and thought it necessary, hold an inquiry into his correct date of birth after giving notice and giving an opportunity of being heard to the appellant. Similarly, in Virendra Kuniar v. Union of India ,88 an order of termination of service from the army on the ground of health was set aside for failure to observe the relevant procedural rules and he was reinstated in service, and paid arrears of salary from the date of termination of his service. Termination of a mining lease held invalid in Assam Silimanite89 as it was done without giving an opportunity of being heard to the lessee. In R.B. Shreeram Durga Prasad v. Settlement Commission, 90 the Supreme Court has reiterated the proposition that an order made in violation of the principles of natural justice is a nullity. Recently, in Shiv Chander Kapoor v. Amar Bose, 91 the Supreme Court has cited with approval Wade's view regarding voidness being relative.92 In Management, M.S. Nally Bharat Engg. Co. Ltd. v. State of Bihar, 93 the Bihar government transferred a labour dispute for the labour court at Dhanbad to the labour court at Patna. This

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was done on the application of the workman but without giving a hearing to the management. On the order being challenged by the management, the Supreme Court held it null and void saying that fairness demanded that the management should have been given an opportunity to have its say against the proposed transfer of the case as it was a party thereto. "Denial of that opportunity is a fatal flaw to the decision of the government."94 The Supreme Court very categorically stated that the party who is denied natural justice "need not establish particular prejudice for want of such opportunity" because "the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice has been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary."95 However, in M.C. Mehta v. Union of India ,96 the Supreme Court held that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law. The Supreme Court cited its own authoritative decision in Gadde Venkateswara Rao v. Govt. of A.P. ,97 in which a Panchayat Samithi, in exercise of its statutory powers passed a resolution on 25.8.1960 to locate a primary health centre at Dharmajigudem. Later, it passed another resolution on 29.5.1961 to locate it at Lingapalem. On a representation by the villagers of Dharmajigudem, the Government passed orders on 7-3-1962 setting aside the second resolution dated 29-5-1961 and thereby restoring the earlier resolution dated 25-8-1960. The result was that the health centre would continue at Dharmajigudem. Before passing the orders dated 7-3-1962, no notice was given to the Panchayat Samithi. The Supreme Court traced the said order of the Government dated 7-3-1962 to Section 62 of the A.P. Panchayat Samithis and Zila Parishad Act 35 of 1959 and if that were so, notice to the Samithi under Section 62(1) was mandatory. Later, upon a review petition being filed, the Government passed another order on 18-4-1963 cancelling its order dated 7-3-1962 and accepting the shifting of the primary centre to Lingapalem. This was passed without notice to the villagers of Dharmajigudem. This order of the Government was challenged unsuccessfully by the villagers of Dharmajigudem in the High Court. On appeal by the said villagers to this Court, it was held that the latter order of the Government dated 18-4-1963 suffered from two defects, it was issued by the Government without prior show-cause notice to the villagers of Dharmajigudem and the Government had no power of review in respect of Government orders passed under Section 62(1). But that there were other facts which disentitled the quashing of the order dated 18-4-1963 even though it was passed in breach of the principles of natural justice. This Court noticed that the setting aside of the latter order dated 18-4-1963 would restore the earlier order of the Government dated 7-3-1962 which was also passed without notice to the affected party, namely, the Panchayat Samithi. It would also result in the setting aside of a valid resolution dated 29-5-1961 passed by the Panchayat Samithi. The Supreme Court refused relief and agreed that the High Court was right in not interfering under Article 226 even if there was violation of natural justice. Subba Rao, J. (as he then was) observed as follows : "Both the orders of the Government, namely, the order dated 7-3-1962, and that dated 18-4-1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village."

His Lordship concluded as follows : "In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated 18-4-1963? If the High Court had quashed the said order, it would have restored an illegal order--it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case."

There can be certain situations in which an order passed in violation of natural justice need not be set aside under Art. 226 of the Constitution. For example, where no prejudice is caused to the person concerned, interference under Art. 226 is not necessary.1 Similarly, if the quashing of the order, which is in breach of

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natural justice is likely to result in revival of another order which is in itself illegal, it is not necessary to quash the order merely because of violation of principles of natural justice.2 In M.C. Mehta v. Union of India ,3 it was pointed out that at one time, it was held in Ridge v. Baldwin, 4 that the breach of principles of natural justice was in itself treated as prejudice and that no other ' de facto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan, 5 Chinnappa Reddy, J., followed Ridge v. Baldwin, 6 and set aside the order of suppersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice, but two exceptions were laid down namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that the breach of natural justice was in itself prejudice, would not apply. The other exception was the "useless formality" theory. In K.L. Tripathi v. State Bank of India, 7 Sabyasachi Mukherji, J. (as then he was) also laid down that principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed,8 quoting Wade's Administrative Law(5th Edn., pp. 472-75), as follows : "It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth." 4. ULTIMATE RELIEF However, the principle of voidness is not applied in every case as a matter of course. The courts in India claim a good deal of discretion in awarding relief to a petitioner. In many cases, the courts resile from applying the principle of voidness in full force, to its logical end, and whittle down the principle in practice. While granting ultimate relief to an individual on account of failure of natural justice, the courts do at times take into account pragmatic considerations rather than take recourse to conceptual logic of void/voidable differentiation discussed above. Rather than acting mechanically, the courts show awareness of the practical effects of their order. Ultimately, what remedy will a court give in a given situation when failure of natural justice is established is a matter of judicial discretion in the facts and circumstances of the case. Ordinarily, when an authority required to observe natural justice does not observe the same, it results in the quashing of the order, relegating the affected party to his original position, and leaving the concerned authority free to start proceedings afresh if it so desires.9 But the courts may not always hold so and may not quash the order, but maintain the status quo, direct the concerned authority to reconsider the matter after completing the requirements of natural justice and either affirm or modify or cancel the earlier order made by it. Such a choice may have to be made because the nature and quality of adjudicatory decisions vary, It may not always be physically possible to restore the party to his original position for several reasons. The property under dispute may have been destroyed as a result of the action of the Administration. Or, with the lapse of time, it may be physically impossible to restore the original position, e.g., when a student expelled from college gets relief after a lapse of considerable time and the academic session may have ended or may be on the verge of ending by then. Or, it may be that restoring the party to the original position may be inexpedient as the position may have changed so fundamentally in the meantime that to do so may create administrative problems, or may paralyse administration adversely affecting public interest, e.g., dissolving a democratically elected body and appointing some one else to take over the administration, or ordering new elections. Then, the Administration is not generally debarred from taking the same action again after observing natural justice. In such a situation, public interest may require that the original position may not be restored for if it is done, the party concerned may so act as to frustrate the ultimate adverse action to be taken after giving him a hearing. The court may also decline to make a consequential order while quashing an order if it is futile, if the authority may immediately pass a fresh order under powers given to it by law on lines similar to the original order quashed by the court making a contrary order ineffective, e.g., the situation of impounding a passport.10 At times, the court may refuse to void an order because of the general judicial apathy to set aside governmental orders. Just, for example, in Arjun Chaubey,11 although the order of dismissal of the petitioner was held vitiated by bias on the part of the decision-maker, the petitioner was not

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allowed to rejoin his duties but he was deemed to have retired from service. In Rattan Lal Sharma v. Managing Committee ,12 while quashing an order of dismissal of the college principal on the ground of bias, the Supreme Court awarded only 1/4 of the pay, and not full pay, from the date of his dismissal till the date of the Court. Order and thereafter full pay. The Court did so keeping in view the financial difficulties of the college managing committee. After the Court order he was to be reinstated as principal and paid his full salary. The point to note is that in giving relief, the courts enjoy a discretion and they may tailor the ultimate relief to suit the totality of circumstances in a given case.13 The idea of the court tailoring ultimate relief is inherent in Wade's contention that voidness is relative and not absolute. But this case to case judicial approach has one disadvantage; it makes Administrative Law uncertain, unsystematic, confused and unpredictable as no one can be sure till the last moment as to what relief would the court ultimately give to the aggrieved party. Also, if the court refrains from voiding the order, unless there are compulsive circumstances to do so, the principle of voidness for non-hearing is very mush diluted in practice, and the compulsion on the Administration to follow natural justice becomes, to that extent, less pressing. This will result in diluting the significance of natural justice in administrative process. What relief do the courts give in a particular case may be examined in the context of a few fact situations under the following two heads : (i) (ii)

Failure of the audi alteram partem; Failure of a component norm of natural justice.

(a) Failure ofAudi alteram partem As a result of a search of the premises of an assessee a certain amount of shortage of the stock of gold and gold ornaments was detected and an inventry of the stock was prepared and a copy thereof was given to him. The assessee requested the authorities to furnish the certified copy of the check list prepared at the time of raid with a view to enabling him to check and verify the particulars. In reply thereto, the ITO expressed his inability to provide the required documents. To say that the documents were not readily available with the officer, is no ground to deny vital information to a person who is to be visited with a penalty. The Supreme Court held that in failure to supply that important piece of information the principle of natural justice would stand violated.14 Rule 5(8)(i) of the Aligarh Muslim University Leave Rules, 1969 contemplates that the employee who absents himself from duty without having previously obtained leave or fails to return to his duty on the expiry of leave without having previously obtained further leave, should be given a notice for an explanation for the same which in the instant case was not done. Hence, there was violation of principles of natural justice.15 In Jagdamba Prasad Shukla v. State of U.P., 16 an employee contended that he was ill at Kanpur and to participate in the disciplinary proceedings, he was required to travel to Gorakhpur which he failed to do on account of financial crunch as he was not paid subsistence allowance in spite of his repeated requests, during the entire period of his one year and eight month's suspension ending in his removal from service. The Apex Court held that it was a clear breach of principles of natural justice on account of denial of reasonable opportunity to the employee to defend himself in the departmental inquiry; but where the employee took no stand before the authorities that because of non-payment of subsistence allowance, he was not in a position to participate in the proceedings or that any other prejudice in effectively defending the proceeding was caused to him, it did not amount to denial of opportunity so as to vitiate the departmental proceedings.17 The Supreme Court, in a case, issued orders for the shifting of the brick kilns from Delhi but before passing such an order no notice was issued to the landlords of the brick kiln owners. It was held that the principles of natural justice would have required an opportunity of hearing being given to them which was denied.18 The order of retirement of a govt. servant on the basis of a date of birth other than recorded in his service book on the justification that, if his recorded date of birth was taken to be true, he would not have completed the prescribed minimum age on the date of joining his training, without any notice to the employee, was set aside and it was held that he must be deemed to be continuing in service until duly superannuated in accordance with law.19 The principles of natural justice demand that any person who was going to be adversely affected by the order should have an opportunity of being heard which was not met in the instant case.20 The Apex Court held that the principles of natural justice were violated in a case where the factum of the impugned order was founded on the

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grounds at variance from the one in the show-cause notice of which the appellant President of a Municipal Council was not even aware of, let alone having been provided an opportunity to offer his explanation.21 In the cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. The punishment as such would be punitive.22 The Appellate Authority set aside the order of dismissal of an employee on the ground of it being vitiated by the violation of the principles of natural justice and ordered the employee to report for duty within 15 days failing which it would be presumed that he was not interested in service and order would be passed accordingly. The employee, instead of reporting for duty, challenged the appellate order before the High Court which dismissed his writ petition. Thereafter, he reported for duty but, the period of 15 days having expired, he was not allowed to join on the ground that his dismissal stood revived due to his failure to join within the prescribed period. He filed another writ petition in the High Court challenging the same but it was dismissed in limine. The Supreme Court held that the High Court was not justified in doing so, as once the Appellate Authority had found the enquiry to be vitiated resulting in violation of the principles of natural justice, de novo inquiry should have proceeded. It was ordered accordingly.23 A bank filed claim before the Commissioner for the recovery of loan it had advanced to a company which was subsequently taken over by the govt. The Commissioner passed the award without issuing notice to the company which was held to be violative of the principles of natural justice and hence was void. Notice should have been issued to the company as well as the govt.24 In F.C.I. v. Sone Lal, 25 the employee who had been compulsorily retired, pleaded before the courts below and the High Court that there was violation of the principles of natural justice as he was neither supplied with the copy of the enquiry report nor was issued any show-cause notice, but his plea could not be considered by the courts. The Apex Court remitted the matter for consideration of this issue. An employee was given notional seniority under Rule 47 of the A.P. State and Subordinate Services Rules retrospectively, consequently an employee senior to him became junior to him. The Apex Court held that a relaxation order affecting the rights of third parties without giving them an opportunity of hearing would be in violation of the principle of natural justice and hence void and unenforceable in law.26 Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.27 In Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture, 28 The Supreme Court observed as follows : " 23. We are unable to accept the contention of Mr. Gokhale that a notice under Section 11(4)(a) or 11-A(1) is a condition precedent for initiating proceedings under those provisions or that it is the very foundation for the proceedings to be taken under those provisions. The notice contemplated under Rule 32 is not similar to a notice to be issued under Section 34(1)(b) of the Income Tax Act, 1922. All that Sections 11(4) and 11-A(1) prescribe is that before taking proceedings against an assessee under those provisions, he should be given a reasonable opportunity of being heard. In fact, those sections do not speak of any notice. But Rule 32 prescribes the manner in which the reasonable opportunity contemplated by those provisions should be afforded to the assessee. The period of 30 days prescribed in Rule 32 is not mandatory. The rule itself says that 'ordinarily' not less than 30 days' notice should be given. Therefore, the only question to be decided is whether the defects noticed in those notices had prejudiced the appellants. It may be noted that when the assessees received the notices in question, they appeared before the assessing authority, but they did not object to the validity of those notices. They asked for time for submitting their explanation. The time asked for was given. Therefore, the fact that only nine days were given to them for submitting explanation could not have in any manner prejudiced them. So far as the mistake in the notice as regards the assessment year is concerned, the assessees kept silent about that circumstance till 1958. It was only when they were sure that the period of limitation prescribed by Section 11-A had expired, they brought that fact to the notice of the assessing authority. It is clear that the appellants were merely trying to take advantage of the mistakes that had crept into the notices. They cannot be permitted to do so. We fail to see why those notices are not valid in respect of the periods commencing from 1-2-1953 till 31-10-1955. We are unable to agree with Mr. Gokhale's contention that each one of those notices should be read separately and that we should not consider them together. If those notices are read together as we think they should be, then it is clear that those notices give the appellants the reasonable opportunity contemplated by Sections 11(4)(a)

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and 11-A(1). In Chatturam v. CIT 29 the Federal Court held that any irregularity in issuing a notice under Section 22 of the Income Tax Act, 1922 does not vitiate the proceeding; that the income-tax assessment proceedings commence with the issue of the notice but the issue or receipt of the notice is, however, not the foundation of the jurisdiction of the Income Tax Officer to make the assessment or of the liability of the assessee to pay the tax. The liability to pay the tax is founded on Sections 3 and 4 of the Income Tax Act which are the charging sections. Section 22 and others are the machinery sections to determine the amount of tax. The ratio of that decision applies to the facts of the present case. In our opinion, the notices issued in the year 1955 are valid notices so far as they relate to the period commencing from 1-2-1953 to 31-10-1955."

Whenever an order is struck down as invalid being violation of principles of natural justice, there is no final decision of the case and, therefore, proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated. [See Guduthur Bros. v. ITO 30 and Supdt. (Tech. I), Central Excise v. Pratap Rai 31]. In CST v. R.P. Dixit Saghidar, 32 it was held as follows : " 5. We are unable to subscribe to the view of the High Court. The aforementioned passage quoted from the Tribunal's order shows that the Tribunal was of the view that once the order is quashed by the Assistant Commissioner, he could not in law remand the case for a decision afresh. As has been noted, before the Assistant Commissioner the counsel for the respondent had contended that the ex parte order should have been set aside because no notice had been received. When principles of natural justice are stated to have been violated it is open to the Appellate Authority, in appropriate cases, to set aside the order and require the assessing officer to decide the cases de novo. This is precisely what was directed by the Assistant Commissioner and the Tribunal, in our opinion, was clearly in error in taking a contrary view."

In a given case, if the assessee knows about the proceedings and there is some irregularity in the service of notice, the direction for continuing proceedings cannot be faulted. It would depend upon the nature of irregularity and its effect and the question of prejudice which are to be adjudicated in each case on the basis of surrounding facts. If, however, the service of notice is treated as non est in the eye of the law, it would not be permissible to direct de novo assessment without considering the question of limitation. There also the question of prejudice has to be considered.33 The emerging principles are :34 (i) (ii) (iii) (iv)

Non-issue of notice or mistake in the issue of notice or defective service of notice does not affect the jurisdiction of the assessing officer, if otherwise reasonable opportunity of being heard has been given. Issue of notice as prescribed in the Rules constitutes a part of reasonable opportunity of being heard. If prejudice has been caused by non-issue or invalid service of notice the proceeding would be vitiated. But irregular service of notice would not render the proceedings invalid; more so, if the assessee by his conduct has rendered service impracticable or impossible. In a given case when the principles of natural justice are stated to have been violated it is open to the Appellate Authority in appropriate cases to set aside the order and require the assessing officer to decide the case de novo.

However, in Nagar Palika Nataur v. U.P. Public Services Tribunal, 35 the Supreme Court held that, where the opportunity was afforded but not utilised, there was no violation of principles of natural justice. In a disciplinary proceeding, due opportunity of hearing was granted to the deliquent employee. However, his request to call certain witnesses made during the course of inquiry was denied on cogent reasons. It was, held that the inquiry was not vitiated by violation of the principles of natural justice.36 Rule 49(i) of the M.P. Co-operative Central Bank Employees Rules, 1977 provided for deemed termination of services in case of conviction and sentence of imprisonment. It was contended that without holding a departmental inquiry, the termination was violative of principles of natural justice. The Supreme Court observed that the provision presumed a proper trial and a judicial conviction of the employee where he has a full right to defend himself in accordance with law and in view of such trial and conviction, a separate departmental inquiry has been considered to be unnecessary. Hence, this cannot be considered to be in violation of the principles of natural justice.37 Under para 2.3 of the Punjab PWD (B&R) Manual, the instructions as per Appendix 7-C are given

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regarding, the enlistment of contractors in a register for the purposes of contract in the Buildings and Roads Branch, PWD. It sets out that there will be three classes of contractors of on the basis of assessment of performance, viz. class I, II and III of which class I is entitled to tender of any individual works of any amount. In the instant case, the contractor in question, not being existed as class I contractor, though in some previous years he was, was not entitled to tender in the contract in the question. Hence his tender was not considered. The Supreme Court held that in the facts of the case, there was no violation of the principles of natural justice.38 A candidate secured employment on a post reserved for the Scheduled Tribes on the basis of caste certificate issued by the Tehsildar who, subsequently finding that he did not belong to a S.T., cancelled the certificate. Disciplinary proceedings were started and he was given a show-cause notice alongwith the copies of the documents which resulted in the termination of his services. He contended before the Court that the order of termination was vitiated as he was not afforded an opportunity of personal hearing. The Apex Court found that, in his reply to the show-cause notice, he did not state his desire for personal hearing and held that the order of termination could not be said to vitiated as alleged.39 Rule 7-A of the Rules framed by the Hyderabed Karnataka Education Society under the Karnataka Societies Registration Act 17 of 1960 provided that whenever an ordinary member failed to pay a paltry amount of Rs. 25/= per year as subscription for remaining as a member for that year by the end of March of that year, despite having got a locus poenitentiae to pay up this paltry amount from the beginning of the year within three months, he will automatically cease to be a member. It was contended that the rule was harsh and arbitrary. The Apex Court observed that every member knew the relevant rule and the society was not expected to give him further notice to show cause as to why he should not be treated a member for that year. The Court held that such a notice was implicit in the rule itself which is well known to all his members, hence there was no failure of principles of natural justice.40 If any right which is creature of statute, in the instant case a trustees' right, is limited or curtailed by that very statute, in the absence of any other right under that very statute or the Constitution of India, such trustee cannot claim any right based on the principle of natural justice.41 An employee, having been given charge-sheet for misconduct of making allegations against a senior officer, was given opportunity to appear before the enquiry committee but he chose to stay away from the enquiry proceedings. Thereafter, he was issued a show-cause notice which was replied by him. After considering his reply, he was discharged from service. It was held that there was no violation of the principles of natural justice.42 In a disciplinary proceeding, the Supreme Court held that as the perusal of the charge-sheet showed that the allegations against the employee were simple and not complicated, the refusal of permission to engage the services of an advocate were not violative of the principles of natural justice.43 Subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned.44 Disciplinary action against public servants : As stated earlier, ordinarily in the case of failure of natural justice in a disciplinary case, the court will quash the order leaving the concerned body free to decide to proceed with the matter again after a fresh hearing,45 but it is not an invariable rule and in a suitable or an exceptional case, the court may prohibit the concerned authority from holding any fresh enquiry.46 In Union of India v. M.B. Patnaik, 47 the Court prohibited a fresh enquiry having regard to the long lapse of time of 20 years since the alleged offences were committed. In Bhagat Rain v. State of Himachal Pradesh, 48 taking into account the minor infraction of duty by the delinquent employee and his low status, the Court posed the question "whether the game of holding the fresh inquiry is worth the battle." In the interest of justice and fairplay, the Court itself took the exceptional course of imposing the minor penalty of withholding his two increments. When an order of dismissal is quashed for failure of natural justice, is the employee entitled to full wages for the period between the order of dismissal and the order of the court? For this purpose a distinction may be made between a situation when the employee is under suspension and when he is not, pending disciplinary proceedings against him. In the former case, if the government decides to take back the employee, he gets his full salary. But in case the authority concerned decides to hold a fresh hearing against the employee on the same charges, then as provided in the Central Services (Classification, Control and Appeal) Rules, 1965, the government servant shall be deemed to be under suspension from the date of the original order of dismissal.49 Where, however, the employee has not been under suspension till the day of his dismissal, the judicial approach has generally been to logically follow the result of quashing, namely, his reinstatement with full

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back salary.50 In Anoop v. Govt. of India, 51 an order of discharge from Indian Police Service on the petitioner who was undergoing training as a probationer without giving him a hearing was quashed by the Supreme Court. He was reinstated in service with the same rank and seniority as he would have been entitled to had the order of discharge not been passed. He also got the arrears of his salary and allowances up to the date of his reinstatement. However, in U.P. Warehousing Corporation v. Vijay Narain, 52 the Supreme Court adopted a new approach. Here the Court found dismissal of an employee of a public undertaking to be wrongful because of the non-observance of natural justice by the undertaking. On a writ petition, the High Court ordered reinstatement of the employee with full back wages. The Supreme Court, however, demurred and held that the writ was not an appropriate remedy for ordering full wages. Such an order involved a "question of fact depending on evidence to be produced before the tribunal. If after termination of the employment, the workman/employee was gainfully employed elsewhere, that is one of the important factors to be considered in determining whether or not reinstatement should be with full back wages with continuity of employment."53 Fixing price of a commodity : In fixing the price of a commodity ordinarily no hearing is required to be given to the affected parties as it is regarded as a legislative, and not an adjudicatory, function.54 But where the relevant law requires natural justice to be afforded to the concerned parties, but failure of natural justice has occurred, the individual may never be restored to his original position when the court quashes the order. The benefit of the lower price fixed by the authority in violation of natural justice goes to the consumers. The administrative authority which has not received any benefit may not, in the circumstances, be required to pay compensation, if ultimately the higher prices are fixed after following natural justice. This problem is very well reflected by the English case, F. Hoffman-La Roche & Co. v. Secretary of State for Trade and Industry .55 Miscellaneous Situations : A few miscellaneous situations may be noted here where the courts have thought it not practical or expedient to nullify the order of the adjudicatory body and restore the status quoante, i.e., restore the person affected to his original position when failure of natural justice has occurred. In Maneka Gandhi v. Union of India, 56 the Supreme Court did not quash an order impounding the passport of the petitioner even though the Court said that the order was "clearly in violation of the rules of natural justice".The Attorney-General gave an undertaking that the government would comply with natural justice, hear the party and reconsider the matter. The Court said that this would remove the vice from the order. In justification of the court order it may be said that returning the passport to the petitioner might have led her to leave the country thus frustrating any final adverse order passed by the government after hearing. Further, even if the passport had been ordered to be returned to her, the government could have immediately passed a fresh order impounding the passport. Instead the Court kept the passport in its own custody pending a final decision of the matter by the government after hearing her. In S.L. Kapoor v. Jagmohan ,57 even though the Supreme Court found that the government order superseding the New Delhi Municipality was vitiated as it was in violation of natural justice, still the Court let the matter rest there. It did not formally quash the government order and reinstate the committee as only 15 days were left for the expiry of the normal term of the committee and the petitioner had said that he was more interested in the principle of the matter rather than getting the suppression order quashed. The Court expressed an anxiety that if the municipality were to be reinstated "it may lead to confusion and even chaos in the affairs of the municipality." The Court was relieved of this anxiety as the petitioner did not press for such an order as he was only interested in having the stigma cast on the committee by the impugned order removed. In effect, therefore, the Court's judgment was more like a declamatory judgment. Nevertheless, the Court did express the view that there was no rule to exclude natural justice being dependent on whether it would have made any difference if natural justice' had been observed. In Swadeshi Cotton Mills v. Union of India ,58 the mills were taken over by the government under the Industries (Development and Regulation) Act, 1951, without following natural justice. The Supreme Court ruled that the company ought to have been given a hearing before the take-over. The Court also noted that the consistent judicial view has been that decisions in violation of the audi alteram partem rule are null and void. In view of these statements by the Court, the logical course would have been to quash the take-over order and let the government undertake take-over proceedings afresh according to law if it so desired. Nevertheless, in the instant case, the Court refused to quash the impugned take-over order and instead directed the government to give a "full, fair and effective" hearing to the company within three months on all aspects touching the validity and/or correctness of the order of takeover and thereafter to take a fresh decision or necessary remedial action which was just

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and proper. Swadeshi is an example of dichotomy between precept and practice on the part of the judiciary. The Court did not articulate the reasons as to why it did not follow the logic of its own reasoning and, thus, compromised the principle of voidness for non-observance of natural justice, in the instant case. But the unstated consideration for such a course of action might have been that it would create confusion and chaos if the undertaking was handed over back to the owners and thereafter an order of take-over was passed after giving hearing to them. The decision of the Supreme Court in the instant case in effect boils down to giving a postdecisional, rather than a pre-decisional, hearing.59 Another illustration of a similar judicial strategy is furnished by P Kasilingam v. P.S.G. College of Technology .60 In this case, the government acting as a tribunal set aside an order made by the management of a college without hearing the management. It thus acted in breach of the rules of natural justice. While the Court accepted the proposition that "ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representation before making a decision", and that ordinarily an order passed without observing natural justice (when it is necessary to do so) would be void, in this particular case, the Court did not set aside the government's order and did not send the case back for rehearing, for the Court took the view that no useful purpose would be served as the government would make a similar order again. This seems to be an unsatisfactory position to take and seeks to dilute the concept of natural justice. There was no inevitability about the government order and after hearing the management, the government could have modified its position. Reference may also be made to an old case D. Subba Rao v. State of Andhra Pradesh .61 The State Government removed the President of a panchayat samiti (a statutory body) without giving him a hearing. Without quashing the order and reinstating the petitioner in office, the Supreme Court ruled that the petitioner be given an opportunity to submit his representation and the same be considered by the government. The proper course would have been to quash the order of removal, and the government could have then started the proceedings against the petitioner afresh if it so desired. It is doubtful whether a hearing given by the government while its order remains intact could be anything more than an empty formality because it is difficult to envisage that the concerned decision-making body having once made the decision could now reconsider the matter with an open mind. It is a natural human instinct to support the order already made and affirm the decision already reached. As the Allahabad High Court62 has very aptly and pithily stated : "There is a world of difference between a hearing given before the determination is made by an authority and a hearing given after such determination has been made."

The only situation where a hearing is permissible after a determination has been made is when the situation is such that the hearing has to be post-decisional.63 But even in such a case, the decision has to be tentative, and not final, and the concerned authority must consider the representation of the affected person with an open mind. In all other cases, hearing must be pre-decisional so that the representations made by the concerned party can be considered before the authority arrives at a decision. At present, it is more a matter of judicial discretion as to what relief is given when an order is passed by the Administration without giving a hearing in a situation when hearing ought to have been given. In Gullapalli II,64 there was failure of notice and, hence, there was no hearing. Still, the High Court refused to give any relief in view of the supervening developments which had taken place thereafter. When the matter came before the Supreme Court in appeal, it also refused to set aside the impugned order on this "technical point of no practical utility".The Court expressed the view that after its decision in Gullapalli II, which had gone against the appellants, now to give another opportunity to them to make representations against the impugned order would be "an empty formality" and would introduce "unnecessary complication and avoidable confusion". (b) Denial of a Norm ofAudi Alteram Partem There may be a situation where hearing has been given but some component of fair hearing is denied or violated, e.g., relevant documents may not have been shown to the concerned party, cross-examination of witnesses may have been denied, or reasons may not have been given for the order made. In such a situation, in some cases the non-observance of a norm of fair hearing has led the courts to quash the

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decision of the adjudicative body in question. For example, in the following case,65 orders made by the Board of Technical Education cancelling examination results of certain candidates was quashed because the notices issued by the Board to the concerned candidates were so vague that they could not have defended themselves in the inquiry. In the absence of proper notices, Board's orders could not be sustained.66 In Travancore Rayons,67 the Supreme Court quashed a decision of the Central Government acting as an appellate body from the collector of excise, on the ground that it failed to give a personal hearing to the assessee company.68 In some other such cases, on the other hand, the courts have, generally speaking, imposed two riders before giving relief : (1) whether any prejudice has been caused to the petitioner by breach of the norm of natural justice; (2) Did the petitioner raise the matter of breach of the norm in question before the adjudicative body itself? The second question is considered below under the heading of Waiver. As to the first question, there are cases where relief has been denied by the courts to the petitioner for breach of a norm of fair hearing by an adjudicative body on the ground that no prejudice has thereby been caused to the petitioner. For example, in the following case,69 in an enquiry against a government servant, government failed to furnish him with the copies of certain documents which were relied upon to establish charges against him. Quashing the order of dismissal passed on the concerned person, the Supreme Court observed that the government was not able "to satisfy us that no prejudice was occasioned to the appellant." In this case the Court assumed that the appellant was prejudiced by the non-supply of copies of documents to him and the onus was placed on the government to show that he was not so prejudiced. Accordingly, the Court directed that the appellant be treated as having continued in service till the date of his superannuating. The Government was also restrained from holding a fresh inquiry against him because of the long time gap. But, in another case,70 the Supreme Court refused to quash the dismissal order on the ground of non-supply of certain materials to him at the inquiry stage because this "did not prejudice the appellant". On the question whether absence of an opportunity to crossexamine witnesses would amount to violation of natural justice, the Supreme Court ruled in Tripathi that it would have to be established that real prejudice was caused to the concerned person by the procedure followed by the adjudicatory body in question.71 In theory, such judicial approach seems to be unjustifiable. Denial of a norm of natural justice is in itself sufficient prejudice to the concerned person without any further proof of prejudice. In some cases, the courts have held quite specifically and decisively that it is no argument to deny natural justice that hearing would have made no difference to the result of the case in the instant case. A similar ruling ought to apply to the denial of a norm of natural justice. Attention may be drawn in this connection to J.M.A. Industries v. Union of India .72 In this case, an order of the government refusing registration of the appellant's trade mark was challenged. One of the grounds of challenge was that the show cause notice issued to the party was inadequate as it only repeated the statutory language without giving any facts.73 The Delhi High Court agreed with this contention saying that from the said notice, the petitioners could have no true idea as to what facts or circumstances or reasons would the government consider in arriving at its decision. Thus, though the court specifically held that the show cause notice was inadequate, yet it did not quash the order saying that "it is doubtful if any actual prejudice has been caused to them by the inadequacy of the show cause notice." The court, however, asked the government to give one more hearing to the petitioners to show cause. The decision seems to be somewhat odd. It makes the law worse confounded. As has been stated earlier,74 an adequate notice is the sine qua non of natural justice. Inadequate notice means denial of natural justice and this should result in the impugned order being quashed without any question of prejudice to the concerned party. What is the point of leaving the impugned order intact and yet asking the government to give an opportunity to the petitioners to show cause. It would have been proper to follow the simple rule that an order made in violation of natural justice is non est. Any deviation from this rule in individual cases would result in lack of consistency and uniformity of law making it completely unpredictable. In Ganesh Sugar Mills v. State of Uttar Pradesh 75 a notice was sent by the State Government to the petitioner firm that over 3.5 lac rupees were due from it on account of non-payment of sugarcane purchase tax. The Supreme Court ruled that the notice was vague and was thus liable to be quashed, but the Court did not do so for two reasons : (1) the point of vagueness of the notice had not been argued before the High Court; (2) Considerable time had elapsed since the issue of the notice as the notice was issued on March 13, 1970 and the Court gave its decision on December 20, 1985. Instead, the' Court asked the Cane Commissioner to give the necessary details (not given in the original notice) to the assesse before adjudicating upon the matter. In the ECIL case,76 the Supreme Court has explained the effect of failure to give a copy of the inquiry report

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to the concerned employee. In case he has been dismissed or removed from service, the question needs to be considered whether any prejudice has been caused to him or not on account of the denial of the report to him. The Court has observed : "Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits..."

Therefore, the court/tribunal concerned would cause a copy of the report given to the aggrieved employee and he be given an opportunity to show how he was prejudiced because of non-supply of the report. The court/tribunal would not interfere if it comes to the conclusion that it would have made no difference to ultimate findings and the punishment given. Only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. The employee is to be reinstated but the concerned authority can proceed with the inquiry by placing him under suspension and continuing the inquiry from the stage of furnishing him with the report. The authority should decide according to law, whether the employee is to get his back wages and other benefits from the date of dismissal to the date of his reinstatement after the culmination of the proceedings and depending on the final result. If the employee ultimately succeeds and is reinstated, the authority should decide according to law how it will treat the period from the date of dismissal till his reinstatement and to what benefits, if any, he will be entitled. The reinstatement made as a result of setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. However, in Ganges Waterproof Works (P) Ltd. v. Union of India ,77 it was held that the allegation of denial of natural justice must be substantiated by the complainant. (c) Giving of Reasons The question may be considered more specifically in the context of failure to give reasons for its decision by an adjudicative body. It is now well established that a quasi-judicial authority has to give a reasoned decision.78 The judicial approach ordinarily is to quash an administrative order for failure to give reasons,79 but this has not always happened. In quite a few cases where an order was quashed by the court, apart from the absence of reasons, there were other factors justifying court's action such as non-application of the mind, failure of the audi alteram partem or some other illegality.80 These cases may, therefore, not be of much use in trying to find out the effect of failure to give reasons, except that these cases do indicate that the general approach of the courts is to quash an order where a quasi-judicial authority has not given the reasons. The situation of failure of audi alteram partem is to be distinguished from the failure to give reasons. The former involves, when the administrative action has been quashed, bilateral acts both on the part of the individual and the authority--individual getting an opportunity to present his case, and the authority required to consider the case on the basis of evidence and arguments presented by the individual. In the latter case, the matter normally will be unilateral--the affected individual having no further role in the decision-making process, but the authority removing the defect by supplying reasons for its decision. In such a case, the quashing of administrative action may still serve certain advantages to the individual : (a) The Administration will be obliged to give reasons along with the order rather than defer the reasons and this introduces an element of fairness in the administrative process; (b) the individual may get some incidental advantage, e.g., in the case of dismissal from service; (c) he gets the psychological satisfaction of vindicating his rights; and (d) by lapse of time the authority may change its views. Further, when there is more than one adverse party interested in the same matter, e.g., a trading licence, quashing of the action may necessitate the authority to consider the matter afresh. There may be three situations of failure to give reasons : (1) not passing a speaking order; (2) non-supply of reasons to the party but communicating the same later to the court when the order in question is challenged :

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and (3) supply of reasons to the party after undue delay of the communication of the non-speaking order but before the individual has approached the court. (i) When no reasons are given to the individual or even supplied to the court : The requirement to give reasons in adjudicative orders is of the essence and goes to the root of the order. When no reasons are given by the concerned authority for an order made by it, it may also be indicative of non-application of its mind by the authority to the matter in question. Therefore, in such a situation, the normal rule should be that the non-speaking order be quashed, and the authority directed to examine the matter afresh. Examination of the matter "afresh" does not mean that the authority is to give " de novo" hearing but the affected individual may be given an opportunity to make written or oral submissions either because of the discovery of new points or factors which may have arisen due to lapse of time or otherwise. Under the Mines and Minerals (Regulation and Development) Act, 1957, the government has power to grant a mining lease to a person and to choose him from amongst various applicants. The situation is like that of lis inter partes. In M.P. Industries v. Union of India ,81 after refusing a mining licence to the petitioner without giving any reasons, the government invited fresh applications, Though Subba Rao, J., one of the three judges constituting the bench, found the action of the government to be bad for failure to give reasons, yet in the circumstances of the case he refused to quash the order of the government, though the petitioner had contended that because of inviting fresh applications he was placed in a disadvantageous position as he would have to compete with others who were not in the field earlier. In the opinion of Subba Rao, J., due to the circumstances of the case, "if we interfere at this stage there would be unnecessary complications and public interest might suffer." The result in the case could be justified on the ground that this was the first significant case where the court was laying emphasis on the necessity of an adjudicative body to pass a speaking order or to give reasons for its action. In Bhagat Raja v. Union of India ,82 the appellate authority (Central Government) affirmed the order of the State Government which had rejected the appellant's application for granting a mining lease. No reasons were given by any of the governments. The Supreme Court found that the appellate authority had a special form which was used whenever a review application was rejected by it. The Court quashed the order and directed the Central Government to decide the review application afresh.83 In Travancore Rayons v. Union of India ,84 a case which involved the assessment of excise duty, the Supreme Court quashed the order of the government on account of failure to give reasons, and remanded the case to it. In Mayer Simon v. Advocate-General, Kerala ,85 the Advocate-General refused his consent to the petitioner for filing a suit under S. 92 of the CPC. No reasons were given for the refusal. The court quashed the order of the Advocate-General and directed him to deal with the matter afresh with expedition.86 The Bombay High Court has ruled that omission to give reasons amounts only to an irregularity which does not vitiate the order.87 It is significant to note that in this case there was a statutory requirement that the decision "shall be communicated to the parties in writing with reasons therefor." In this case, the power involved was that of adjudication upon 'disputes' regarding purchase and sale of commodities or payment of price, etc. and so was quasi-judicial in nature. The High Court decision does not seem to be correct since it goes against the well settled principle of natural justice that an adjudicative authority should give a reasoned decision. (ii) No reasons communicated but reasons on the record : Where reasons are on the record but have not been communicated to the individual, the court has adopted different postures. The cases under this heading do not denote a uniform judicial approach. In some cases, the action has been upheld but not in others. In Ahmedabad Municipality v. Ramanlal ,88 a municipality passed an order of eviction against a tenant but did not communicate the reasons to the party though they were on record. Without quashing the order the Supreme Court contended itself merely with saying that it showed inefficiency on the part of the municipality and warned that it should not happen again. It ordered the municipality to give reasons. In Nandram Hunatram v. Union of India ,89 the government found that the partners in a firm to whom a mine was leased out by the government were quarrelling among themselves, that the wages of labourers had not been paid and that the mine was being flooded because essential services had stopped working. In the circumstances, the government terminated the lease and took over the mine without giving any reasons. The

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Court upheld the government's action. It found that the facts were quite clear and well-known and that it was satisfied on the facts before it that the governmental action was justified. In Bhagat Ram v. State of Punjab ,90 the government passed an order removing a member from a municipality without giving reasons for his removal. The order was challenged on the ground that it did not state any reasons for the member's removal. The Supreme Court reiterated the general principle, viz., that inasmuch as very severe penal consequences flow from removal of a person from membership of a committee to which he has been duly elected, and as no appeal is provided for under the statute against an order so removing him, it is not only desirable but also essential that the State Government should indicate its reasons for making the order. Nevertheless, in the specific facts and circumstances of the instant case, the Court refused to quash the order primarily on the ground that the State Government had produced the relevant file before the High Court from which the Court was satisfied that there had been a proper consideration of the petitioner's explanation, that the government was justified in rejecting the appellant's explanation, and that there had been no violation of natural justice. In Ranganath v. Daulatrao ,91 the appellant had sought to recover from his tenant the possession of land of which he was the Inamdar. Inams were abolished by the Hyderabad Abolition of Inams and Cash Grants Act, 1954. The government denied him the relief because of the abolition of Inams by the Act by a non-speaking order. The Supreme Court upheld the order because the matter did not involve adjudication of facts but rested on law and there was no error in that regard. Again, in Woolcombers of India v. Their Workmen ,92 which involved a dispute between an employer and his employees with regard to wages, the industrial court, while fixing wage rates, failed to give reasons. The Court emphasized upon the necessity of adjudicatory bodies to give reasons for their decisions and also stated that "the absence of reasons in support of conclusions is indeed a serious flaw in the award".Nevertheless, it refused to set aside the award merely for failure of the tribunal to give reasons if there was evidence on record to support the tribunal's conclusions. The Court then went on to examine the record to find material in support of the tribunal's conclusions. Having failed to find such material, it ultimately refused to uphold the award of the tribunal. In JMA Industries v. Union of India ,93 the Central Government refused to register the trade-mark of the petitioner as it was not in public interest to do so. The government gave no reasons for its order which was made under S. 49(3) of the Trade and Merchandise Marks Act, 1958. The order was challenged through a writ petition on the ground of lack of reasons. These reasons were on record though these were not communicated to the petitioner. The High Court refused to quash the order merely because the government failed to communicate the reasons to the petitioner. In its counter-affidavit to the writ petition, the government did disclose the reasons to the court. Although the court criticised the order characterising it as 'cagey', emphasized upon the giving of reasons by adjudicatory bodies, called attention to the principle enunciated by the Supreme Court in a number of cases that "reasons must be given for quasi-judicial orders and, in the absence of such reasons, the orders would be quashed by the courts",deprecated the tendency of administrative authorities of not supplying reasons to the affected party, yet refused to quash the impugned order arguing that it "would be wasteful and unjust for this court to refuse to see the reasons which were originally given in the order on the file to allow the writ petition only because before the writ petition was filed the reasons were not communicated.94 In Bombay Oil Industries Pvt. Ltd. v. Union of India ,95 the Government of India passed a non-speaking order. Said the Supreme Court, the government order "leaves much to be desired." The Court impressed on the Government that while disposing of applications under S s. 21, 22 and 23 of the Monopolies and Restrictive Trade Practices Act, "it must give good reasons in support of the order and not merely state its bald conclusion." The Court emphasized : "The faith of the people in administrative tribunals can be sustained only if tribunals act fairly and dispose of matters before them by well considered orders." The Court also observed : "The relevant material must be made available to the objectors because without it, they cannot possibly meet the claim or contentions of the applicants under Ss. 21, 22 and 23 of the M.R T.P. Act. The refusal of the Government to furnish such material to the objectors can amount to a denial of a reasonable opportunity to the objectors to meet the applicant's case. And denial of a reasonable opportunity to meet the other man's case is denial of natural justice."

The Court also drew attention of the Government to the several of its judgments on the question of the need

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to give reasons in support of the conclusions to which the Government has come. The Court suggested that the "authorities concerned may, with profit",see these decisions.96 But, having said all this, the Court refused to quash the non-speaking order saying that "after hearing a longish argument" on behalf of the appellant, "we are satisfied on the material produced before us and on perusal of the counteraffidavit of the Government that, there were good reasons for passing the impugned order." In K.L. Tripathi v. State Bank of India ,97 though reasons were not expressly stated, the order was still upheld because "these reasons were implicit namely, the nature of the charges, the explanation offered and the reply of the appellant to the show cause notice. These appear from a fair reading of the order impugned in this case." Such decisions really make the requirement of giving reasons for an order more of a directory, rather than of mandatory, nature. The law laid down in the above cases cannot be said to be fair to the affected party. The government file may contain reasons for taking an action, but the person affected has no access to the reasons unless these are communicated to him. Reasons are not meant only for the satisfaction of the court; these are primarily meant for the benefit of the affected party; reasons are not for being secured in the files but for communication to the concerned party. If reasons are not communicated to him, how is he going to know whether he ought to challenge the order or not in a court, and if to challenge it, on what grounds? Why should the party be forced to go to the court to get the reasons from the adjudicatory body when it is its obligation to give reasons? The soft judicial attitude in this matter towards adjudicatory bodies may encourage them not to give reasons for their decisions. In the instant case, the court might have felt that if it were to quash the order, it could not give the petitioner any positive relief of directing the government to register his trade-mark.98 At best the court could have asked the government to reconsider the matter. But then, in this there was a chance, howsoever remote, that the petitioner might have got the relief he desired. And, by doing so, the court would have vindicated the principle that a non-speaking order was invalid and, thus, encouraged the culture among the administrators of passing speaking orders and communicating the reasons for the orders made by them to the affected persons. The JMA ruling leads to the situation that a party may have to file a writ petition to get the reasons for the order made by an adjudicatory body. There are cases, on the other hand, where the Supreme Court has taken a strict view of non-communication of reasons to the concerned party by an adjudicative body as, for instance, Ajantha Industries v. Central Board of Direct Taxes .1 Under S. 127 of the Income Tax Act, 1961, the board may transfer a case from one I.T.O. to another after giving the assessee a reasonable opportunity of being heard and after recording the reasons for doing so. It was held that merely recording of reasons in the file was not sufficient. It was essential to give the reasons to the affected party. If a case is transferred from the usual place of residence or office of the assessee to a distant place, it involves the assessee into a great deal of inconvenience and monetary loss. The order to transfer was quashed for not communicating the reasons to the petitioner. In the case mentioned below,2 the Calcutta High Court has ruled that an order made without giving any reasons is void ab initio and it could not become valid by giving reasons in an affidavit filed by the concerned authority in the High Court in response to a writ petition filed in the Court challenging the validity of the order. It is suggested that in order to avoid confusion, and also to make adjudicators more vigilant in the discharge of their duties, and in order to avoid dilution of the principles of natural justice, the courts should propound a simple rule that it is mandatory, as a part of natural justice, that an adjudicatory body gives reasons for its decision, otherwise its decision will not be regarded as a 'decision' at all. The courts should not countenance any argument seeking to dilute the efficacy of the principle of reasoned decisions so elaborately argued out by the Supreme Court in Travancore Rayons.3 Only as an exceptional matter, a non-speaking order may be upheld, e.g., when national security is involved. Such a strict judicial view is essential to develop the culture among the administrators to pass speaking orders in adjudicatory proceedings. (iii) Supplying reasons to the party after undue delay of the order but before the matter comes to the court : Here the situation is more or less the same as in (ii) above. The delay in giving reasons may cause financial loss to the concerned person as, in the absence of reasons, he may not be able to choose his remedy against the Administration. For instance, if a person imports certain goods and there is a dispute with regard to the rate of customs duty to be imposed on such goods, and the customs authorities decide against the individual and delay giving of reasons for their decision, it may cause him financial loss and subject him to wharfage charges for he may not know what to do for this delay. The only course open to him may be to file a suit for damages against the Administration, but the law relating to damages for wrongful administrative

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action is still in a very nebulous state.4 5. CURING FAILURE OF NATURAL JUSTICE AT APPELLATES STAGE Can failure of natural justice at the original stage be cured by the appellate body giving a hearing ? Failure of natural justice arises when either no hearing is given at all, or there has been some defect in the hearing procedure adopted, by the original adjudicative body. In the first situation, the general rule is that a breach of natural justice at the original stage cannot be cured by sufficiency of natural justice at the appellate stage. Because of the failure of natural justice, the order of the lower body is a nullity, and even if this order is affirmed by an upper tribunal, or there is natural justice provided by the upper tribunal, neither the order of the lower, nor of the upper body can be sustained. The orders of both, lower as well as of the upper tribunals must fall. Megarry, J., ruled in Leary5 that failure of natural justice in the lower tribunal is not cured by providing natural justice to the appellant by the appellate tribunal. It is very instructive to take note of the exact words used by Megarry, J., for the purpose : "If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body this has the result of depriving the member of his right of appeal from the expelling body.6 If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him."

The proper course in such a situation would be for the original body to hear the matter de novo. It would not be proper if instead of the lower tribunal rehearing the matter, the appellate body were to itself hear it and, thus, discard its appellate function. If a person never had a fair trial by the appropriate trial body, it would not be open to the appellate body to itself give the man a fair trial which he never had. If the contention is accepted that a defect of natural justice in the trial body can be cured by the appellate body providing natural justice, then it deprives the person concerned of his right of appeal from the trial body. If the law gives a person the right to a fair trial and a right of appeal, why should he be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, he is still being deprived of his right of appeal to another body. The decision of the trial body being a nullity because of denial of natural justice by it, there is no question of its ratification or curing on appeal. Thus, failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body. However, if under the law, the appellate body has power to rehear the matter de novo, then rehearing by the appellate body may he held to cure the defect. Thus, in Stringer v. Minister of Housing ,7 a statutory provision provided for appeal from the local planning authority to the Minister, and it also provided that the Minister on appeal could deal with the application as if it had been brought to him in the first instance. On the basis of these provisions, the court ruled that when the decision of the local planning authority was void, the Minister could rehear the matter de novo, deal with the application and make a decision on it. The Leary principle has been followed in India in a number of cases. Accordingly, the Orissa High Court ruled in Laxmidhar v. State of Orissa ,8 following Leary, that when the trial body did not observe natural justice, the same cannot be remedied by an appellate body giving a sufficient hearing to the party concerned, and where evidence was not received properly, the entire proceeding became vitiated because its foundation was not in accordance with law. In Kashiram,9 the SDO cancelled the licence without giving a hearing to the licensee. He appealed to the district magistrate who heard him at length and upheld the order. The Court ruled that "on the facts and circumstances of the present case", "the defect of non-observance of the rule of natural justice" by the lower authority was not cured by the hearing before the appellate authority. In G. Rajalakshmi v. Appellate Authority ,10 the Andhra Pradesh High Court was called upon to consider the question : if the trial tribunal does not consider all the objections filed before it, can the appellate tribunal consider the merits of the lis like the original authority and record findings thereon, or is it improper for it to do so? Agreeing with the approach of Megarry, J. in Leary, the High Court ruled that a failure of natural justice in the tribunal of first instance cannot be cured by sufficiency of natural justice in the appellate, body. The court emphasized that such an approach would curb the tendency of the tribunals to give a short shrift to the proceedings before them. Therefore, the proper course in such a case would be to remit the matter to the original tribunal and, thus, vindicate and strengthen the larger principle of natural justice. In Farid Ahmed v.

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Ahmedabad Municipality ,11 the commissioner who was the competent authority to give a personal hearing to the objectors in land acquisition proceedings did not do so. His recommendations with regard to the acquisition of land were to be approved by a standing committee of the municipality and ultimately confirmed by the State Government. An appeal against the order of acquisition lay to the city civil court. It was held that if the order was at its inception invalid, its invalidity cannot be cured by its approval by the standing committee and confirmation by the State Government. As regards appeal to the court, the court stated that appeal did not lie on all matters which could be considered by the commissioner. Therefore, the appeal was not a complete substitute for a right to personal hearing by the commissioner. Even assuming that all objections could be entertained by the court, the court held that it was only the commissioner and not the judge who could hear objections under the Act. Again, in Shri Mandir Sita Ramji v. Government of Delhi ,12 the collector who was the recommendatory authority under the Land Acquisition Act gave no hearing but the Lt. Governor who was the ultimate authority to acquire land did. The order of land acquisition was held bad as "... the fact that the collector is not the authority to decide the objection does not exonerate him from the duty to hear the objector on the objection. .."13 In Serajuddin & Co. v. State of Orissa ,14 the Calcutta High Court quashed an order of the State Government cancelling a mining lease as the lessee had not been given a hearing. Interestingly, an appeal from the State order had been take to the Central Government, but it upheld the order after hearing the concerned party. Thereafter, as stated above, the State order was challenged before the High Court which quashed the same. It was argued before the High Court that the State order had merged with the Central order and, therefore, the State order could no longer be challenged as such, Rejecting the contention, the High Court ruled that if the original order was a nullity, an order passed by the higher authority in revision could be of no greater value or effectiveness even though the latter order complied with natural justice; in such a case, the original order did not get merged with the order passed in revision. "If the foundation of a structure is removed the superstructure cannot stand and must collapse." Therefore, if the order of the lower authority could not be saved and sustained, the order of the higher authority made in revision must also fall along with it. In Mysore S.R.T. Corp v. Mirza Khasim ,15 the Supreme Court reiterated the principle that an initial order which was null and void could not become valid by confirmation by a higher authority on appeal. The initial defect could not be cured in this manner. Here was a case not of breach of natural justice but that of breach of Art. 311(2) insofar as a government servant was dismissed by an authority lower in rank than the appointing authority. The order was without jurisdiction and, hence, void and inoperative. The order was confirmed on appeal by a higher officer. Nevertheless, the Court held that the initial order being without jurisdiction was null and void and its confirmation could not cure its initial defect. It has been noted later that failure to observe natural justice amounts to jurisdictional error.16 The Supreme Court in L.K. Ratna17 considered the question whether a provision for an appeal from the Council of the Institute to the High Court could be considered as an adequate safeguard against any defect in procedure committed during the initial proceedings? The Court ruled, after referring to Leary, that the consequences of initial order were very material to decide whether the opportunity of hearing in appeal could cure the defect of the original order. An order passed after trial caused to the person concerned immediate and serious injury which was not capable of being completely erased when the error committed in the initial proceedings was later on corrected in appeal. That would be so when a member of a professional body like the Institute of Chartered Accountants of India was punished for his professional misconduct. As soon as a highly respected and trusted member was punished, the damage to his professional reputation would be "immediate and far-reaching" which could never be completely salvaged. The Court therefore held that the punishment imposed on the respondent by the Council of the Institute without giving him an opportunity of representing against the report of the disciplinary committee violated the principles of natural justice and an appeal to the High Court, under the Chartered Accountants Act, 1949, could not cure that defect. The Court emphasized that it was necessary "to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding". All these cases are based on Leary. In 1979, in Calvin v. Carr ,18 considering the same question, the Privy Council gave only a qualified endorsement to the Leary principle. The Australian Jockey Club disqualified the plaintiff for one year after a stewards' inquiry and forfeited his membership of the club. He appealed to the club committee which dismissed the appeal. The plaintiff then came to the court seeking a declaration that the decision was void as the stewards had failed to observe the principles of natural justice. The rules provided that the appeal before the committee would be by way of

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rehearing and so the proceedings before the appeal committee constituted a de novo hearing. The question was whether the defects in the stewards' enquiry were thus cured. The Privy Council stated that no clear, absolute or automatic rule can be laid down on the question whether defects in natural justice appearing at an original hearing, whether administrative or quasi-judicial, can be cured through appeal proceedings or not. This is so because the situations in which this issue arises are too diverse, and the rules by which they are governed so various. The rule laid down in Leary was too broadly stated. It may apply in some proceedings where the conclusion is reached that a complainant has the right to nothing less than a fair hearing both at the original and at the appellate stages. Some examples of such proceedings are : membership of a trade union, planning, employment etc. But this principle may not apply to all proceedings. There may be cases where defects at the initial stage may be cured by a full hearing at the appellate stage. The court has a discretion to decide the matter. "What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for." In case of consensual domestic bodies where an inquiry and appeal process have been established, it may not be advisable to introduce too great a measure of formal judicialization. In such case, the court can decide that the complainant has "agreed to accept what is in the end a fair decision, notwithstanding some initial defect." But flagrant cases of injustice, including corruption and bias, must be firmly dealt with by the courts. In the instant case, a domestic tribunal was involved; appeal from the first stage was by way of hearing. The Privy Council felt convinced that the plaintiff's case "has received, overall, full and fair consideration",and so it refused to interfere with the decision. The ruling in Calvin v. Carr to the effect that failure of natural justice at the original stage may be cured by a hearing at the appellate stage is subject to three inherent limitations : (1) the ruling is concerned only with consensual bodies and not with governmental or administrative bodies; (ii) the ruling refers to a two tier adjudicatory system--first tier deciding the dispute originally and the second tier hearing appeal from the original decision; and (iii) the appeal is by way of rehearing and the appellate body gives a fullfledged hearing to the party concerned. If the appeal is not by way of rehearing, but is limited only to the points of law, and the appellant remains bound to accept the determinations of fact as found by the original body, then the Calvin ruling would not apply. Calvin v. Carr qualifies the Leary principle to some extent. The Leary principle applies in all cases except those of consensual domestic bodies (such as, social clubs etc.) where proceedings at both levels (original and appellate) taken together satisfy the demands of natural justice. It is to be noted that in Calvin, the appeal was by way of rehearing. This distinguishes Leary from Calvin in an important aspect. Ultimately, however, it is for the court to decide whether the doctrine of Leary or Calvin should be applied. in a particular situation. It is suggested that in India, the Leary principle should be applied in most of the situations as it is necessary that the initial decision making bodies are made to follow the principles of natural justice rather meticulously. The Calvin principle will introduce too much uncertainty into the law. Also, in India, adjudication is done primarily by government bodies, its officials and statutory bodies which fall outside the pale of the Calvin principle. Even the professional bodies, like the Institute of Chartered Accountants, are statutory bodies and not consensual bodies.. The Calvin principle may be applied, if at all, to bodies like clubs and associations which a person joins, and voluntarily accepts the rules thereof. Another factor militating against the application of the Calvin principle in India is that provisions for appeal from lower bodies to higher bodies are rare, and appeals by way of 'rehearing' are rarer indeed. Also, judicial review is not usually by way of an appeal, but through a writ petition, which is of much limited efficacy as compared to an appeal and of much less efficacy as compared to a rehearing de novo as envisaged in Calvin. While, in India, the dominant judicial trend remains in favour of applying the Leary rule, recently in a few cases, the Supreme court has invoked the Calvin rule. Because of the special circumstances in these cases, the Court did not think it fit to quash the original decision for want of natural justice, and, therefore, upheld the original decision by saying that the hearing before the Supreme Court has rectified the lacuna. One example of such judicial approach is furnished by Olga Tellis.19 There, no notice was issued by the commissioner to the squatters on municipal land before seeking to evict them. The Court ruled that giving of a notice was mandatory. But, instead of quashing the commissioner's decision, the Court ruled that the failure of natural justice at his level was cured by a hearing given to the affected persons in the Court on the

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writ petition. Another instance of a similar judicial approach is furnished by Charan Lal Sahu v. Union of India .20 In the wake of the mammoth Bhopal tragedy as a result of the leakage of poisonous gas from the works of the Union Carbide, thousands of persons either died or were injured. To represent these persons in claims for damages against the company, Parliament passed an Act to ensure that the claims arising out of the disaster were dealt with speedily, effectively and equitably. The Act conferred on the Central Government an exclusive right to represent the victims of"-the disaster, institute suit on their behalf and enter into a compromise. S. 4 said that in doing so the Central Government "shall have due regard to any matters" which any affected person "may require to be urged with respect to his claim..." The Central Government entered into a compromise with Union Carbide as regards the quantum of compensation payable by the latter for the gas victims. This compromise was challenged by the gas victims inter alia on the ground that under S. 4, it was necessary for the government, before entering into any compromise, to give a notice to the concerned persons of the proceedings and an opportunity to them to advance their views if they so wanted. The Court agreed with this contention. Said the Court, "The fact that the provisions of the principles of natural justice have to be, complied with is undisputed", and "... in case of a proposed or contemplated settlement, notice should be given to the victims who are affected or whose rights are to be affected to ascertain their views." The Court emphasized that "all civilized countries accept the right to be heard as part of the due process of law where questions affecting their rights, privileges or claims are considered and adjudicated." In the instant case, the government gave no such notice to the people concerned as to the impending settlement with Union Carbide. The critical question thus was : in the absence of such notice, should the settlement be held as void? The Court emphasized that not giving of notice in the instant case was not proper "because principles of natural justice are fundamental in the constitutional set up of this country. No man or no man's right should be affected without an opportunity being given to him to ventilate his views. Having said this, however, the Court resiled from taking the logical step of voiding the settlement arguing that it had been arrived at after great deal of efforts with a view to give immediate relief to the victims. Therefore, the Court treated hearing before itself adequate for the purpose. "In the facts and circumstances of this case where sufficient opportunity is available when review application is heard on notice,... no further opportunity is necessary and it cannot be said that injustice has been done." The Court thus invoked the Calvin, in preference to the Leary, approach. Later, while hearing a review petition, in Union Carbide Corp. v. Union of India ,21 the Supreme Court endorsed the Sahu ruling. In this case, because of special circumstances, viz. to provide expeditious relief to the victims, the Court preferred to follow Calvin rather than Leary, and itself gave a full fledged hearing to the victims of the gas tragedy to show that the settlement arrived at between the government and the company concerned was inadequate. It may be pointed out that here the Calvin principle has been applied on a much broader basis than what was envisaged by the Privy Council in that case. The Calvin principle was designed to apply to consensual bodies and that, too, when at the appellate stage there was a rehearing de novo. In Sahu, none of these, conditions was fulfilled. The body involved here (Government of India) was an administrative, and not a consensual, body discharging a statutory function, and any hearing by the Court on a writ petition cannot be as broadbased as a hearing before a body on a rehearing de novo. Recently, in Lloyd v. Mcmahon ,22 Lord Templeman commenting on the Leary, v. Calvin dichotomy, has stated that Calvin can apply only when the court is entitled to determine the appeal from the concerned adjudicatory body on the basis of the evidence or information laid before the court itself. If a statute only allows an appeal to a court on a question of law, or entitles or obliges the court of law to rely on the facts found by the tribunal, "and the defects in the inquiry conducted by the tribunal may be so prejudicial to the aggrieved person that the court in its discretion may decide to quash the decision and not to proceed with an appeal on merits in the absence of the views of the tribunal after a proper inquiry". In view of this clarification, in India, application of the Calvin rule in writ petitions is not justified as the writ court does not usually go into facts. Therefore, in India, Leary should be applied as a rule, Calvin only as an exception to be applied only when policy considerations strongly dictate that the original decision be not quashed as in Sahu. Section 3 of the High Denomination Bank Notes (Demonetisation) Act, 1978 provided that on the expiry of 16-1-1978 all high denomination notes shall cease to be legal tender in payment or on account at any place. Section 7 of the Act provided that the High Denomination Bank Notes owned by a person other than a bank or Government treasury might be exchanged only on tender of the note upto 19-1-1978. Section 8 provided that on failure of tender of such notes by a person, he could tender the same upto 24-1-1978 together with a statement explaining the reasons for his failure to apply within the said time-limit. A charitable society

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tendered such notes on 23-1-1978 along with a letter explaining delay for failure to deposit the same within the prescribed time. The Currency officer of the Reserve Bank of India rejected their claim for exchange on the ground that the society had not explained satisfactorily its failure. The society preferred an appeal to the Central Govt. which after giving personal hearing to the society dismissed the appeal. It was contended before the Apex Court that the Currency Officer passed orders without affording it an opportunity of being heard to explain the reasons for delay in tendering the notes. The Supreme Court held that even if it was presumed that such an opportunity of personal hearing was imperative to comply with the rules of natural justice, the society could not raise any grievance on that score because the appellate authority gave it such an opportunity before dismissing its appeal and gave detailed reasons for not accepting its explanation for delay.23 Section 41 of the T.N. Shops and Establishments Act 36 of 1947 and Rule 9 of the T.N. Shops and Establishment Rules, 1948 show that the jurisdiction of the Appellate Authority in labour law cases to record evidence and to come to its own conclusion on the questions involved in the appeal, are very wide. Even if the evidence is recorded in the domestic enquiry and order of dismissal is passed thereafter, it will still be open to the Appellate Authority to record, if need be, such evidence as may be produced by the parties. Conversely, also if the domestic enquiry is ex parte or no evidence was recorded during those proceedings, the Appellate Authority would still be justified in taking additional evidence to enable it to come to its own conclusion on the articles of charges framed against the delinquent employee. In the instant case the employee did not avail of the opportunity of hearing and was dismissed. The Appellate Authority set aside the dismissal order on the ground that no domestic enquiry was held. The Apex Court observed that as the Appellate Authority had full jurisdiction to record evidence to come to its own conclusion, the opportunity of hearing being afforded to the employee at the appellate stage will sufficiently meet the demands for a just and proper enquiry.24 6. WAIVER The question of waiver in relation to bias has already been considered earlier.25 The question of waiver in relation to the non-observance of, or breach of a norm of fair hearing, needs to be considered here. When a parts after having been given a show-cause notice does not reply thereto, or after having been given an opportunity of being heard does not present himself at the time of the hearing, he may be regarded as having waived his right to be heard and the concerned adjudicators body does not infringe natural justice by proceeding with the matter ex parte.26 The concerned party cannot later on turn around and say that there was non-compliance of natural justice. As the Supreme Court has observed,27 every one has a right to waive an advantage or protection which law gives him. In the following Calcutta case,28 during the course of proceedings before the estate officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, for eviction of the petitioners, they sought a number of adjournments which were granted. They did not appear personally before the estate officer. Full opportunity of being heard was given to them but they did not avail of the same. The estate officer duly issued notice to them expressing his intention to proceed with the matter at a specified time and place but even then the petitioner chose not to attend. The estate officer decided the matter ex parte against the petitioner. The High Court ruled that in the circumstances of the case it could not be said that the petitioner did not get reasonable opportunity of presenting his case before the estate officer and he was justified in proceeding ex parte.29 Besides this, it is difficult to envisage that waiver can be implied in any other situation when the parts is not given a hearing. There are two powerful arguments against implying waiver of such a right. One, failure of natural justice makes the decision void. It has been held that breach of natural justice goes to the root of the decision-making authority.30 There is also the well established principle that defect of jurisdiction cannot be cured by acquiescence of the parties concerned.31 Thus, an adjudicators body cannot decide a dispute without giving hearing to the concerned parts by bringing in the plea of implied waiver. Secondly, in several cases, the Supreme Court has ruled that the hearing procedure is a part and parcel of Art. 14 of the Constitution.32 In Basheshar Nato v. I.T. Commr. ,33 the Supreme Court has ruled that an affected party cannot waive his fundamental right under Art. 14 of the Constitution. It would, therefore, follow that the right to be heard being a part of Art. 14 cannot also be waived by the concerned parts. It is at times argued before the courts that since the petitioner (aggrieved person) failed to raise an objection

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before the adjudicators body itself as and when there was a breach of the norm of natural justice in question, he would forfeit his right to raise the matter later and to challenge the order on that ground. In other words, the argument boils down to saying that if a party does not raise the objection at the earliest opportunity, then it should be regarded as waiver on his part rendering him incapable to raise the objection later. It is suggested that the courts should be extremely slow and circumspect in entertaining the argument of waiver. The reason is that for waiver to arise it is necessary to show that the concerned parts should not only know that a norm of natural justice is being infringed but that he should also know that he has a right to object on that ground before the adjudicators body. In mans cases, the parties are not represented by lawyers before adjudicators bodies and, therefore, they would not know whether or not a norm of natural justice is being infringed and that they have a right to object there and then. In such a situation if the parts allows the proceedings to go on, he cannot be regarded as having waived his right to object later. A person cannot waive a right unless he knows that he has such a right. Moreover, norms of natural justice are so vague and indefinite that not even lawyers, what to say of lay men, can be sure whether or not a norm of natural justice is being infringed by the adjudicators body in any specific fact-situation. In several cases, mentioned earlier, courts have refused to quash decisions on the plea of lack of an opportunity to cross-examine witnesses or not holding a personal hearing by saying that since the party did not earlier demanded a personal hearing, or claim to cross-examine witnesses testifying against him, he could not later make a grievance of that and seek to quash the decision on that ground.34 However, there is some judicial authority to support the view that there are certain fundamental principles of natural justice which cannot be waived. In Mayes v. Mayes ,35 it has been said : ..."A rule of natural justice which goes to the very basis of judicature cannot be waived. One cannot convert a nullity into a validity." This principle was applied by the court in Singapore in Tan Boon Chee, David v. Medical Council of Singapore .36 The facts of the case are noted earlier. The concerned doctor was represented by a lawyer at the hearing by the inquiry committee and no objection was raised before the inquiry committee against the procedure being followed by the members of the inquiry committee. Still the court quashed these proceedings with the observation that the procedure shocked the court's sense of justice and amounted to a glaring breach of natural justice. The breach of natural justice was so fundamental that it could not be waived. 7. REVIEW OF THE AUTHORITIES ON VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BY THE SUPREME COURT The Supreme Court in its decision in State Bank of Patiala v. S.K. Sharma ,37 has given an elaborate survey of the authorities on the effect of violation of principles of natural justice. A full view of the judgment is produced here because of its historic value though most of the cases mentioned, are already covered in the book otherwise. 13. The first decision on this aspect is that of the House of Lords in Ridge v. Baldwin ,38 and the oft-quoted words are that of Lord Reid, to wit : "Then there was considerable argument whether in the result the watch committee's decision was void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad .39 I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case." It must, however, be remembered that that was a case where the appellant-chief constable was dismissed without notice and without enquiry. He was tried and acquitted on a criminal charge of conspiracy to obstruct the course of justice. Two other police constables, who were tried along with him, were convicted. While acquitting the appellant, the learned Judge commented adversely at more than one place upon the leadership qualities of the chief constable suggesting that he was found wanting in that respect. Thereupon, the Brighton Watch Committee, without giving any notice or hearing to him, dismissed him from service. The violation was thus of a fundamental nature. It was a case of total violation of the principle of natural justice.40 There could not be a greater violation of natural justice than that. 14. We may now consider the decision of the Privy Council in M. Vasudevasn Pillai v. City Council of Singapore .41 The facts of this case are rather involved. The Singapore Municipal Ordinance provided that in a case of misconduct which in the opinion of the head of the department merited dismissal, the head of the department should outline the case to the president or the deputy president and hold an enquiry. The record of enquiry shall thereafter be considered by the president or the deputy president who was entitled to cause such further enquiry as he may think appropriate

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and then make his final decision. If the decision was to dismiss the employee, the decision was to be conveyed by the head of the department to the employee who was given a right of appeal to the Establishment Committee. The appellants were daily-rated unskilled labourers. On the allegation of misconduct, an enquiry was held by the head of the department wherein the appellants participated. Thereafter, the deputy president asked certain questions from the head of the department and the latter supplied the necessary information. This was not disclosed to the appellants. They were dismissed. On appeal, as de novo hearing was afforded to the appellants by the Establishments Committee. Thereupon, the appellants brought an action in Singapore Courts which ultimately reached the Privy Council. The Privy Council recalled, in the first instance, the statement of law on this subject as stated by Lord Reid in Ridge v. Baldwin 42 to the effect that unless the conditions of service are governed by a statute or statutory rules, principles of natural justice have no place in a dispute between master and servant. The statement from Ridge runs thus : "The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence : it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them." 15. On the facts of the appeal before them, the Privy Council held, in the first instance, that at the stage of the deputy president asking questions and the head of the department supplying him information, the principles of natural justice had no application. Alternately, they held that even if the said principles did apply, even then it must be held that the said violation was cured by what happened before the Establishments Committee (i.e. on appeal). Since there was a rehearing before the Establishments Committee and evidence was called de novo and also because no grievance was made with respect to the proceedings before the Estasblishments Committee, the invalidity arising from the violation of principles of natural justice at the earlier stage was cured. This decision was referred with approval in 1980 by the Privy Council in Calvin v. Carr 43 in the following words : "Their Lordships regard this as a decision that in the context, namely one of regulations concerning establishments procedures, justice can be held to be done if, after all these procedures had been gone through, the dismissed person has had a fair hearing and put his case. It is thus an authority in favouring the existence of the intermediate category, but not necessarily one in favour of a general rule that first instance defects are cured by an appeal. Their Lordships are also of opinion that the phrase 'hearing of evidence de novo', though useful in that case, does not provide a universal solvent. What is required is examination of the hearing process, original and appeal as a whole, and a decision on the question whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for." 16. Al Mehdawi v. Secy. of State for the Home Deptt 44 was an interesting case. On the ground of overstaying in the United Kingdom, the appellant was given a notice proposing to deport him. The appellant's solicitors lodged a notice of appeal and informed the appellant, on his correct address, of the action taken by them. When the solicitors were notified of the date of hearing, they wrote to the appellant informing him of the date of hearing, but this letter was sent on the old address. The appellant did not receive it. The solicitors finding no response from the appellant, took no steps in the matter and the appeal was dismissed. The solicitors again wrote to the appellant but on the old address again. When sought to be deported, the appellant applied for judicial review of the deportation order on the ground of absence of notice to him. The High Court and the Court of Appeal upheld his plea holding that notwithstanding absence of fault by the Tribunal, there had been a breach of the principle of audi alteram partem, which constituted a fundamental flaw in the decision-making process and that since the fault lay entirely with the appellant's solicitors, there was a clear case for quashing the Tribunal's decision. On appeal to the House of Lords, the decision of High Court and Court of Appeal was reversed. The House of Lords [Lord Bridge] observed : "A party to the dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of the procedural impropriety or that natural justice has been denied to him. ..." In other words, the House of Lords was of the opinion that natural justice merely imposed standards of procedural fairness on the decision-making authority and that natural justice does not demand that the person affected should actually receive a fair hearing.45 17. We must, however, make it clear that it may be difficult to find uniformity in the large number of decided cases in United Kingdom. For example, take the decision of the House of Lords in Malloch v. Aberdeen Corpn. 46 It was a case where the statute concerned mandated that no resolution of a School Board for the dismissal of a certificated teacher was to be valid unless notice of the motion for dismissal was sent to the teacher not less than three weeks previous to the meeting. And, further that the resolution for the dismissal was not to be valid unless agreed to by the majority of the full members of the Board. The teacher concerned, Malloch, was informed more than three weeks in advance. But his written request for an opportunity to submit counter-representations was not granted and though he was present at the decisive meeting, he was not permitted to state his case. The Court held that the statutory requirement of three weeks' notice before the decision was taken, conferred an implied right to be heard. It was not done. By the notice dated 19-3-1969, the service of the teacher was terminated with effect from 24-4-1969. The House of Lords held that the teacher concerned was denied by the education authority, which employed him, the hearing to which he was entitled. It was further found that the hearing to be afforded would not be a useless formality, as there was an arguable case for the teacher. Nonetheless, it was observed by Lord Reid : (All ER at p. 1283).

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"...it was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer." Lord Guest (All ER at p. 1291) not only agreed with the above statement but also applied the test of prejudice. He observed : "A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way." Lord Wilberforce too stated the principle in the following words : (All ER at p. 1294) "The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure. The Court does not act in vain." 18. In R. v. Secy. of State for Transport, ex p Gwent County Council ,47 the Court of Appeal too applied the test of prejudice in a case of enhancement of toll charges over a bridge. The Act provided for a public hearing before effecting increase. Dealing with a complaint of procedural impropriety, the Court of Appeal held that unless prejudice is established to have resulted from the procedural impropriety, no interference was called for. In another case, Bushell v. Secy. of State for Environment 48 the House of Lords held that in the absence of statutory rules as to the conduct of a local enquiry under the Highways Act, 1959, the procedure to be followed was a matter of discretion for the Secretary of State and the Inspector--the only requirement being that the procedure followed should be fair to all concerned including the general public. It is thus clear that the approach of the Court depended upon the facts and circumstances of each case, the law applicable, the nature of the right claimed by the person affected and so on. Having considered the principles emerging from the above cases, we are inclined to say that the aforesaid statement of law in Calvin v. Carr ,49 stated with reference to Vasudevan Pillai,50 is the appropriate one to adopt as a general rule--and we are supported by the decisions of this Court in saying so. We must, however, forewarn that decisions on the applicability of the principles of natural justice by this Court are legion. It is neither possible nor necessary to refer to all of them, particularly in view of the recent Constitution Bench judgments. We will refer only to a few of them to explain our viewpoint. 19. In State of U.P. v. Mohd. Nooh ,51 S.R. Das, C.J., speaking for the Constitution Bench, had this to say : "If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned." 20. In Jankinath Sarangi v. State of Orissa ,52 Hidayatullah, C.J. (speaking for the Bench comprising himself and G.K. Mitter, J.) made the following pertinent observations : (SCC pp. 394-95, para 5) "From this material it is argued that the principles of natural justice were violated because the right of the appellant to have his own evidence recorded was denied to him and further that the material which was gathered behind his back was used in determining his guilt. In support of these contentions a number of rulings are cited chief among which are State of Bombay v. Narul Latif Khan ;53 State of U.P. v. C.S. Sharma 54 and Union of India v. T.R. Varma .55 There is no doubt that if the principles of natural justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal; but there are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. ...Anyway the questions which were put to the witnesses were recorded and sent to the Chief Engineer and his replies were received. No doubt the replies were not put in the hands of the appellant but he saw them at the time when he was making the representations and curiously enough he used those replies in his defence. In other words, they were not collected behind his back and could be used to his advantage and he had an opportunity of so using them in his defence. We do not think that any prejudice was caused to the appellant in his case by not examining the two retired Superintending Engineers whom he had cited or any one of them." 21. Pausing here, we may notice two decisions of this Court where the test of prejudice was rejected, viz., Chintapalli Agency Taluk Arrack Sales Coop. Society Ltd. v. Secy. (Food and Agriculture) Govt. of A.P. 56 and S.L. Kapoor v. Jagmohan 57 both rendered by three-Judge Benches. But if one notices the facts of those cases, it would be evident that they were cases of total absence of notice as in the case of Ridge v. Baldwin .58 In the former case, the Government allowed a revision filed under Section 77 of the Andhra Pradesh Co-operative Societies Act, 1964 without notice to the opposite party, in spite of a request therefor. Para 9 brings out the factual position and para 11 the legal proposition. They read thus : (SCC pp. 340-41, paras 9 and 11) "On the very day, viz., 6-10-1976 when the respondents filed their revision before the Government, the appellant filed an application to the Government disputing the claim of the village societies. The appellant also filed before the

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Government a similar application on 28-10-1976. On 5-11-1976, the appellant prayed to the Government for an opportunity to file counter in the revision petition filed by the respondents. The Government, however, without any notice to the appellant, passed final orders on 4-12-1976, allowing the two review petitions filed by the village societies and set aside the order of the Registrar dated 10-12-1975. *** The short question that arises for decision is whether the order of the Government in revision which was passed under Section 77 of the Act is invalid for non-compliance with Section 77(2) which provides that no order prejudicial to any person shall be passed under sub-section (1) unless such person has been given an opportunity of making his representation. It is submitted that the Government did not afford any opportunity to the appellant for making representation before it. The High Court rejected this plea on the ground that from a perusal of the voluntary applications filed by the appellant it was clear that the appellant had anyhow met with the points urged by the respondents in their revisions petition before the Government. We are, however, unable to accept the view of the High Court as correct." 22. Similarly, S.L. Kapoor case59 was one where a Municipal Committee was superseded even without a notice to the Committee, again a case like Ridge v. Baldwin .60 After referring to certain English and Indian decisions, Chinnappa Reddy, J., made the following observations : (SCC p. 395, para 24) "In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal." The observations made in S.L. Kapoor61 have to be understood in the context of the facts of that case--and, of course, subject to the dicta of the Constitution Bench referred to hereinafter. 23. In Hira Nath Mishra v. Principal, Rajendra Medical College ,62 the denial of opportunity to cross-examine the material witnesses was held not to vitiate the order made. It was a case where certain male students entered a girls' hostel during the night and misbehaved with the girls. The committee appointed to enquire into the matter recorded the statements of the girls in camera and used them (on the question of identity of the miscreants) against the appellants without allowing them to cross-examine the girls on the ground that such a course would reveal the identity of the girls and would expose them to further indignities and also because the enquiry was held by a committee of responsible persons. 24. In K.L. Tripathi v. State Bank of India ,63 Sabyasachi Mukharji, J., speaking for a three-Judge Bench, considered the question whether violation of each and every facet of principles of natural justice has the effect of vitiating the enquiry. The learned Judge observed : (SCC pp. 58-59, paras 32-34) "The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action,. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version of the credibility of the statement. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation to the acts, absence of opportunity to cross-examination does not create any prejudice in such cases. The principles of natural justice will, therefore, depend upon the facts and circumstances of each particular case. We have set out hereinbefore the actual facts and circumstances of the case. The appellant was associated with the preliminary investigation that was conducted against him. He does not deny or dispute that. Information and materials undoubtedly were gathered not in his presence but whatever information was there and gathered namely, the versions of the persons, the particular entries which required examination were shown to him. He was conveyed the information given and his explanation was asked for. He participated in that investigation. He gave his explanation but he did not dispute any of the facts nor did he ask for any opportunity to call any evidence to rebut these facts." It was accordingly held that the enquiry held and the punishment imposed cannot be said to have been vitiated on account of an opportunity to cross-examine certain witnesses not having been afforded to him.64

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25. In Managing Director, ECIL v. B. Karunakar ,65 a Constitution Bench did take the view that before an employee is punished in a disciplinary enquiry, a copy of the enquiry report should be furnished to him (i.e. wherever an enquiry officer is appointed and he submits a report to the Disciplinary Authority). It was held that not furnishing the report amounts to denial of natural justice. At the same time, it was held that just because it is shown that a copy of the enquiry officer's report is not furnished, the punishment ought not to be set aside as a matter of course. It was directed that in such cases, a copy of the report should be furnished to the delinquent officer and his comments obtained in that behalf and that the Court should interfere with the punishment order only if it is satisfied that there has been a failure of justice. The following para (applicable in cases where the order of punishment is subsequent to 20-11-1990, the date of judgment in Union of India v. Mohd. Ramzan Khan 66 is apposite : (SCC p. 758, para 31) "Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and given their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.67 26. To the same effect is the decision of another Constitution Bench in C.B. Gautam v. Union of India ,68 a case arising under Chapter XX-C of the Income Tax Act. At p. 110, the following observations are relevant : (SCC p. 110, para 40) "This brings us to the question to relief. We find that the order of compulsory purchase under Section 269-UD (1) of the Income Tax Act which was served on the petitioner in the night of December 15, 1986, has been made without any show-cause notice being served on the petitioner and without the petitioner or other affected parties having been given any opportunity to show cause against an order of compulsory purchase nor were the reasons for the said order set out in the order or communicated to the petitioner or other parties concerned with the order. In view of what we have stated earlier the order is clearly bad in law and it is set aside." 27. Even so, this Court did not set aside the order of compulsory purchase but devised an appropriate procedure so that the "laudable object" underlying Chapter XX-C is not defeated and at the same time the persons affected get an opportunity to put forward their case against the proposed acquisition. 28. The decisions cited above make one thing clear, viz., principles of natural justice cannot be reduced to any hard and fast formulae. As said in Russell v. Duke of Norfolk 69 way back in 1949, these principles cannot be put in a strait-jacket. Their applicability depends upon the context and the facts and circumstances of each case. (See Mohinder Singh Gill v. Chief Election Commr .70). The objective is to ensure a fair hearing, a fair deal, to the person whose rights are going to be affected. (See A.K. Roy v. Union of India 71 and Swadeshi Cotton Mills v. Union of India ).72 As pointed out by this Court in A.K. Kraipak v. Union of India, 73 the dividing line between quasi-judicial function and administrative function (affecting the rights of a party) has become quite thin and almost indistinguishable--a fact also emphasised by House of Lords in Council of Civil Service Unions v. Minister for the Civil Service 74 where the principles of natural justice and a fair hearing were treated as synonymous. Whichever the case, it is from the standpoint of fair hearing--applying the test of prejudice, as it may be called--that any and every complaint of violation of the rule of audi alteram partem should be examined. Indeed, there may be situations where observance of the requirement of prior notice/hearing may defeat the very proceeding--which may result in grave prejudice to public interest. It is for this reason that the rule of post-decisional hearing as a sufficient compliance with natural justice was evolved in some of the cases. e.g., Liberty Oil Mills v. Union of India .75 There may also be cases where the public interest or the interests of the security of State or other similar considerations may make it inadvisable to observe the rule of audi alteram partem altogether [as in the case of situations contemplated by clauses (b) and (c) of the proviso to Article 311(2) of the Constitution of India] or to disclose the material on which a particular action is being taken. There may indeed be any number of varying situations which it is not possible for anyone to foresee. In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries : a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between "no notice"/"no hearing" and "no adequate hearing" or to put it in different words, "no opportunity" and "no adequate opportunity". To illustrate--take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin .76) It would be a case falling under the first category and the order of dismissal would be invalid-- or void, if one chooses to use that expression ( Calvin v. Carr .77) But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report ( Managing Director, ECIL v. B. Karunakar 78) or without affording him a due opportunity of cross-examining a witness (K.L. Tripathi79) it would be a case falling in the latter category--violation of a facet of the side rule of natural justice--in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e.,

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whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct--in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar80 should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid. 29. The matter can be looked at from the angle of justice or of natural justice also. The object of the principles of natural justice--which are now understood as synonymous with the obligation to provide a fair hearing81--is to ensure that justice is done, that there is no failure of justice and that every person whose rights are going to be affected by the proposed action gets a fair hearing. The said objective can be tested with reference to Rule 68(ii)(x)(b)(iii) of the State Bank of Patiala (Officers') Service Regulations, 1979 concerned here. It says that copies of statements of witnesses should be furnished to the delinquent officer "not later than three days before the commencement of the examination of the witnesses by the inquiring authority." Now take a case--not the one before us--where the copies of statements are supplied only two days before the commencement of examination of witnesses instead of three days. The delinquent officer does not object; he does not say that two days are not sufficient for him to prepare himself for cross-examining the witnesses. The enquiry is concluded and he is punished. Is the entire enquiry and the punishment awarded to be set aside on the only ground that instead of three days before, the statements were supplied only two days before the commencement of the examination of witnesses? It is suggested by the appellate Court that sub-clause (iii) is mandatory since it uses the expression 'shall'. Merely because the word "shall' is used, it is not possible to agree that it is mandatory. We shall, however, assume it to be so for the purpose of this discussion. But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest, vide Dhirendra Nath Gorai v. Sudhir Chandra Ghosh .82 Subba Rao, J., speaking for the Court, held : "Where the Court acts without inherent jurisdiction, a party affected cannot by waiver confer jurisdiction on it, which it has not. Where such jurisdiction is not wanting, a directory provision can obviously be waived. But a mandatory provision can only be waived if it is not conceived in the public interests, but in the interests of the party that waives it. In the present case the executing Court had inherent jurisdiction to sell the property. We have assumed that Section 35 of the Act is a mandatory provisions. If so, the question is whether the said provision is conceived in the interests of the public or in the interests of the person affected by the non-observance of the provision. It is true that many provisions of the Act were conceived in the interests of the public, but the same cannot be said of Section 35 of the Act, which is really intended to protect the interests of a judgment-debtor and to see that a larger extent of his property than is necessary to discharge the debt is not sold. Many situations may be visualized when the judgment-debtor does not seek to take advantage of the benefit conferred on him under Section 35 of the Act." 30. The principle of the above decision was applied by this Court in Krishan Lal v. State of J&K 83 in the case of an express statutory provision governing a disciplinary enquiry. It was a case where the employee was dismissed without supplying him a copy of the enquiry officer's report as required by Section 17(5) of the Jammu and Kashmir (Government Servants) Prevention of Corruption Act, 1962. This provision was treated as mandatory. The question was how should the said complaint be dealt with. This Court held : (SCC pp. 432-33, paras 26-29) "Let it now be seen whether the requirement of giving copy of the proceeding of the inquiry mandated by Section 17(5) of the Act is one which is for the benefit of the individual concerned or serves a public purpose. If it be former, it is apparent, in view of the aforesaid legal position, that the same can be waived; if it be latter, it cannot be. Though Shri Mehta has urged that this requirement serves a public purpose, we do not agree. According to us, the requirement is for the benefit of the person concerned which is to enable him to know as to what had taken place during the course of the proceedings so that he is better situated to show his cause as to why the proposed penalty should not be imposed. Such a requirement cannot be said to be relatable to public policy or one concerned with public interest, or to serve a public purpose. We, therefore hold that the requirement mentioned in Section 17(5) of the Act despite being mandatory is one which can be waived. If, however, the requirement has not been waived any act or action in violation of the same would be a nullity. In the present case as the appellant had far from waiving the benefit, asked for the copy of the proceeding despite which the same was not made available, it has to be held that the order of dismissal was invalid in law. The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case84 in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did not concede that the order of dismissal passed without furnishing copy of the inquiry officer's report would be enough to set aside the order. Instead, it directed the matter to be examined as stated in paragraph 31. ... According to us, therefore, the legal and proper order to be passed in the present case also, despite a mandatory provision having been violated, is to require the employer to furnish a copy of the proceeding and to call upon the High Court to decide thereafter as to whether non-furnishing of the copy prejudiced the appellant/petitioner and the same has made difference to the ultimate finding and punishment given. If this question would be answered in affirmative, the High Court would set aside the dismissal order by granting such consequential reliefs as deemed just and proper." 31. Sub-clause (iii) of Rule 68(ii)(x)(b) of the State Bank of Patiala (Officers') Service Regulations, 1979 is, without a doubt, conceived in the interest of the delinquent officer and hence, he could waive it. From his conduct, the

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respondent must be deemed to have waived it. This is an aspect which must be borne in mind while examining a complaint of non-observance of procedural rules governing such enquiries. It is trite to remember that, as a rule, all such procedural rules are designed to afford a full and proper opportunity to the delinquent officer/employee to defend himself and are, therefore, conceived in his interest. Hence, whether mandatory or directory, they would normally be conceived in his interest only. 32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) of Rule 68 (ii)(x)(b) of the State Bank of Patiala (Officers') Service Regulations, 1979 be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise. 33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee) : (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under--"no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar.85 The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice--or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action--the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in

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which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State of public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. 34. Now, in which of the above principles does the violation of sub-clause (iii) of Rule 68(ii)(x)(b) of the State Bank of Patiala (Officers') Service Regulations, 1979 concerned herein fall? In our opinion, it falls under Principles Nos. 3 and 4(a) mentioned above. Though the copies of the statements of two witnesses (Kaur Singh, Patwari and Balwant Singh) were not furnished, the respondent was permitted to peruse them and take notes therefrom more than three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case may be, from effectively cross-examining the witnesses or to defend himself. The trial Court has not found that any prejudice has resulted from the said violation. The appellate Court has no doubt said that it has prejudiced the respondent's case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all. Wherever the Court is justifying a denial of natural justice, it must take care that its decision is not described as a "preconceived view" or one in substitution of the view of the authority who would have considered the explanation.86

1 A.G. v. Ryan [1980] AC 718. 2 Fairmount Investments Ltd. v. Secretary of State for the Environment, [1976] 1 WLR 1255 at 1263, as cited by Wade & Forsyth in Administrative Law, 9th Edn., 2005, p. 441. 3 Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 441. 4 Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 441. 5 Rattan Lal Sharma v. Managing Comm. Dr. Hari Ram H.S. School, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10 : (1993) 83 FJR 25; supra, Chapter XI. 6 Wade, Administrative Law, 349 (1988); De Smith, Judicial Review of Administrative Action, 151 (1980); Rubinstein, Jurisdiction and Illegality, 5 (1965). 7 Hartley and Griffith, Government and Law, 364 (1975). 8 Hounslow L.B.C. v. Twickenham G.D. Ltd., (1971) 1 Chapter 233, 259. 9 Calvin v. Carr, [1979] 2 WLR. 755. 10 Karnail Singh v. State of Haryana, 1995 Supp (3) SCC 376. 11 Words and Phrases (American), Vol. 44, published by West Publishing Co., at page 319, as cited in Karnail Singh v. State of Haryana, 1995 Supp (3) SCC 376. 12 State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249. 13 Union of India v. Nandlal, AIR 1996 SC 2206 : (1996) 4 SCC 459. See also State of Karnataka v. B.S. Nanjundaiah, (1996) 8 SCC 49 [LNIND 1996 SC 82] [LNIND 1996 SC 82] [LNIND 1996 SC 82] : JT 1996 (1) SC 631 [LNIND 1996 SC 82] [LNIND 1996 SC 82] [LNIND 1996 SC 82]. 14 R. Thiruvirkolam v. Presiding Officer, JT 1996 (10) SC 369 : AIR 1997 SC 633 [LNIND 1996 SC 1883] [LNIND 1996 SC 1883] [LNIND 1996 SC 1883]: 1996 (8) Scale 297. 15 State of Rajasthan v. D.R. Laxmi, (1996) 6 SCC 445, 453 (para 10). 16 Wade, Administrative Law, 1988, at 352, 642. 17 See, infra. Vol. II, under 'Judicial Control' for all these various remedies.

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18 De Smith, Judicial Review of Administrative Action, (1980), at 131, 133, 241. 19 Gravells, Some Problems in Administrative Law : A Wasted Opportunity for Clarification, 93 LQR 327 (1977). Also, Law Commission, Law Comm. No. 20 (cmnd., 4059, May, 1969). 20 (1967) 2 AC 337. 21 For a discussion on the question of standing see, infra, under Judicial Control. 22 (1964) AC 40. See supra, Chapter IX, also, Jain, Cases, Chapter VIII, 475. 23 Ridge v. Baldwin, [1964] AC 40; See supra Chapter IX, also Jain, Cases Chapter VIII, 475. 24 On Waiver, see, supra, Chapter XI, and, infra, this chapter. 25 The majority consisted of Lord Reid, at 80, 81; Lord Morris, at 117, 119, 125; and Lord Hodson, at 135; the minority consisted of Lord Evershed and Lord Devlin, Lord Morris held that "the decision of the watch committee was invalid and of no effect and null and void." He said that the decision could be called voidable only in the sense that until and unless the chief constable contested it, it would stand. Lord Hodson held that a decision contrary to natural justice was void, being vitiated by "a want of jurisdiction". On this point, see also, infra, under 'Error of Jurisdiction.' 26 According to Wade: Durayappah endeavoured to reinstate the minority opinions in Ridge v. Baldwin in opposition to the majority of the House of Lords, who clearly held that a breach of natural justice rendered a decision void and not voidable. Durayappah is flawed not only by this inconsistency but also by a serious misrepresentation of the opinion of Lord Morris...": 90 LQR 156-157. According to Megarry, J., in Hounslow L.B.C. v. Twickenhan G.D. Ltd., (1971) 1 Ch 233, 259 : "It seems to me that despite what was said in the Durayappah case, both the language used by Lord Morris and the ratio of his speech show that he was holding that the decision reached in defiance of natural justice was void and that this was accordingly the majority view in the House of Lords." Hounslow L.B.C. v. Twickenhan G.D. Ltd., (1971) 1 Ch 233, 259, at 259. 27 See, e.g., Wade, Unlawful Administrative Action; Void or Voidable, 83 LQR 499 (1967); 84 LQR 95 (1968). 28 Wade, Administrative Law, 349 (1988) at 353. Also see, Wade, 93 LQR 11. 29 Wade, Adm. Law, 527. (1988). 30 Wade, Administrative Law, 353. Also see, infra, Vol. II, for Declarations. 31 Wade, 93 LQR 11 (1977); Wade, Adm. Law, 528 (1988). 32 Wade, 93 LQR 11 (1977); Wade, Administrative Law, 528 (1988). 33 General Medical Council v. Spackman [1943] AC 627 at 644, as cited in Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 507. 34 Principles of Adm. Law, 115, 231 (1973). 35 Supra, De Smith, Judicial Review of Administrative Action, (1980), at 241. 36 Anisminic Ltd. v. Foreign Compensation Commr., [1967] 3 WLR 382; supra, Chapter IX, also under "Judicial Control : Error of Jurisdiction", Infra, Vol. II. 37 (1971) 2 All ER 1279, per Lord Reid, Lord Wilberforce and Lord Simon. 38 Anisminic Ltd. v. Foreign Compensation Comm., (1967) 3 WLR 382; see, Infra, under "Judicial Control". Also, Att. Gen. v. Ryan, (1980) AC 718. 39 See, Infra, Vol. II, under 'Judicial Control-Ouster Clauses' and also 'Error of Jurisdiction'. 40 O'Reilly v. Mackman, (1983) 2 AC 237. 41 Al-Mydhawi v. Secretary of State for Home Dept., (1989) 3 All ER 843, 898. 42 (1971) 12 All ER 89; Jain, Cases, 620. 43 Cheall v. A.P.E.X., (1983) 2 AC 180. 44 Lord Reid in Ridge v. Baldwin, [1964] AC 40. But in Malloch v. Aberdeen Corp., [1971] 2 All ER 1279, there seems to be some change in his view where he says: "If that could be clearly demonstrated it might be a good answer." Megarry, J. criticises it in John v. Rees, (1970) Chapter 345, 402; supra, Chapter IX, note. Also, J.L. Caldwell, Discretionary Remedies in Adm. Law, (1986) Otago L.R. 253-257; Clark, (1975) P.L. 27. 45 Lord Reid in Ridge v. Baldwin, [1964] AC 40.

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46 Wade, Adm. Law, 573 (1988). 47 Wade, Administrative Law, supra, note 31a, at 353. Also, Wade, 83 LQR 499. 501, 510. 48 De Smith, Judicial Review of Administrative Action, 151 (1980), at 152. 49 De Smith, Judicial Review of Administrative Action, 151 (1980), at 152. He also points out that what is null and void for one purpose may be valid for another, and voidness is itself a relative concept. Also, Wade, 83 LQR 499, 501. 510 (1967); Craig, Adm. Law, 323-325 (1989). 50 F. Hoffman-La Roche & Co. A.G. v. Secretary of State for Trade and Industry, [1975] AC 295. Jain Cases, Chapter IX, 936. 51 (1975) AC 295. See, Jain, Cases, Chapter IX, 936. 52 The fact was that the government itself was a big buyer of these drugs under its national health service scheme and, thus, it would have saved a lot of money by reduction of prices of these drugs. 53 Lord Wilberforce in his dissenting opinion characterised Durayappah, v. Fernando [1967] 2 AC 337, as a "puzzling case." He pointed out that the very question raised here was whether what was alleged as 'law' was law or not? According to him, a piece of subordinate legislation is presumed to be valid against a person having no locus standi to challenge it, but there is no such presumption when the same is challenged by a person having locus standi to challenge it. He asserted that "an ultra vires act is simply void." Then he made a very interesting remark: "In truth when the court says that an act of administration is voidable or void but not void ab initio this is simply a reflection of a conclusion, already reached on unexpressed grounds, that the court is not willing in case to give compensation or other redress to the person who establishes the nullity." He suspected that underlying most of the reasoning in the Court of Appeal "is an unwillingness to accept that a subject would be indemnified for loss sustained by invalid administrative action." F. Hoffman-La Rache & Co. v. Secretary of State for Trade and Industry, [1975] AC 295, at 358-59. See, Infra, Vol. II, under 'Compensation' on this point. 54 F. Hoffman-La Rache & Co. v. Secretary of State for Trade and Industry, [1975] AC 295 at 366. 55 90 LQR 155 (1974). 56 (1977) QB 122. 57 For discussion on Anisminic, see, Infra, Vol. II, under "Judicial Control". 58 Anisminic Ltd. v. Foreign Compensation Commission , supra, note 26. 59 Later, writing extra-judicially, Lord Denning himself recanted on his reasoning in Ostler and wished that he had rested his decision solely on public policy grounds : The Discipline of Law, 77-8, 108-9 (1979). 60 See, Wade, Anisminic v. East Elloe, 93 LQR 8 (1977). Also, a comment by him on Hoffman, 90 LQR 436. Smith v. East Elloe Rural District Council, (1956) AC 736, 769. In another comment, Gravells supports the decision in Ostler but questions the reasoning adopted, because such reasoning is based on the assumption that the question in issue could be resolved merely by reference to abstract concepts of Administrative Law. The conflict between the Anisminic principle and the effective restriction of a time-limit clause could not be resolved merely on a "conceptual basis" but "it is necessary to examine the policy factors which operate within the particular context in question and to resolve any conflict between public and private interests." 93 LQR 327 (1977). 61 Malloch v. Aberdeen Corporation, [1971] 2 All ER 1279. 62 Isaacs v. Robertson [1985] AC 97, cited in Wade & Forsyth: Administrative Law, 9th Edn., 2005, p. 441 footnote No. 12. 63 Collector of Monghyr v. Keshav Pd., AIR 1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136]: 1963 (1) SCR 98; supra, 362; State of Orissa v. Binapani Dei, AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: 1967 (2) LLJ 266 : 1967 (2) SCR 625 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]; Jain, Cases, 501; North Bihar Agency v. State of Bihar, AIR 1981 SC 1758 : (1981) 3 SCC 131. 64 AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND 1969 MP 9] [LNIND 1969 MP 9]. 65 Durayappah v. Fernando, [1967] 2 AC 337. 66 AIR 1973 Raj 187. 67 For discussion on locus standi, see, Infra, Vol. II, under judicial Control. 68 De Smith characterises the locus standi rule laid down in Durayappah v. Fernando, [1967] 2 A.C. 337 (denying locus standi to the Mayor) as "an unduly narrow finding". He also states that the presupposition that there exists "a distinction in the rules governing locus standi to impugn void and voidable decisions" "is not adequately supported by the case-law." De Smith, Judicial Review of Administrative Action, 241 (1980). 69 AIR 1971 All 343. In State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957

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SC 99]: 1958 SCJ 242, the Supreme Court laid down that where an inferior tribunal makes an order in contravention of natural justice, the superior court may issue certiorari to correct the error of the tribunal of the first instance, even if an appeal to another tribunal is available and recourse was not had to it. 70 See, Infra, Vol. II, under Judicial Control for discussion on Art. 226. 71 AIR 1971 Ker 34. Cf. Dhaunkal v. Man Kauri, AIR 1969 Punj 431. 72 AIR 1974 Cal 309 [LNIND 1974 CAL 102] [LNIND 1974 CAL 102] [LNIND 1974 CAL 102]. 73 R. v. Secretary of State for the Environment, [1977] QB 122. 74 Infra, Vol. II, under Judicial Control. 75 AIR 1974 SC 1471 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53]: 1974 Crlj 1054 : (1974) 2 SCC 121 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53]; Jain, Cases, Chapter XI, 945. 76 See, Jain, Indian Constitutional Law, 543-547. 77 Nawabkhan v. State of Gujarat, AIR 1974 SC 1471 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53], at 1477 : (1974) 2 SCC 121 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53] : 1974 Crlj 1054. 78 Nawabkhan v. State of Gujarat, AIR 1974 SC 1471 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53]at 1480 : (1974) 2 SCC 121 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC 53]. 79 Lord Reid and Lord Hodson opted for 'nullity', while Lord Evershed and Lord Devlin supported the 'voidable' theory and Lord Harris of Both-y-Gest struck a practical note in between. 80 See Kadish and Kadish, Discretion to Disobey : A Study of Lawful Departures from Legal Rules (1973); Rubinstein, Jurisdiction and Illegality : A Study in Public Law (1965). 81 For comments on this case, see, S.N. Jain, Is an Individual Bound by an Illegal Executive Order? Distinction between "Void" and "Voidable" Administrative Orders, 16 J.I.L.I. 322 (1974); M.P. Jain, Annual Survey of Adininistrative Law, X A.S.I.L. 523 (1974). An interesting difference in the fact-situations of Hoffman and Nawab Khan may be noted. In Hoffman, the company was opposing the grant of an interim injunction against itself compelling it to obey an order before it was judicially decided whether the order was void or not for breach of natural justice. On the other hand, in Nawab Khan, the petitioner was sought to be punished for disobeying an order which had been judicially held to be void for breach of natural justice. 82 F. Hoffman-La Roche & Co. A.G. v. Secretary of State for Trade and Industry, [1975] AC 295. 83 On 'Stay Orders', see, Infra, Vol. II, under Judicial Control. 84 On this point, see, Infra, Vol. II, under 'Compensation.' 85 AIR 1975 SC 630. 86 AIR 1981 SC 1481 [LNIND 1981 SC 45] [LNIND 1981 SC 45] [LNIND 1981 SC 45]: (1981) 3 SCC 544 : 1981 (2) LLJ 380 [LNIND 1981 SC 45] [LNIND 1981 SC 45] [LNIND 1981 SC 45]. 87 State of Orissa v. Binapani Dei, AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: (1967) 2 SCR 625. Also, Jain, Cases, 501. 88 AIR 1981 SC 947 : (1981) 1 SCC 485 : 1981 LIC 433. 89 Assam Sillimanite Ltd. v. U.O.I., AIR 1990 SC 1417 [LNIND 1990 SC 161] [LNIND 1990 SC 161] [LNIND 1990 SC 161]: (1990) 3 SCC 182. 90 AIR 1989 SC 1038 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710]: (1989) 1 SCC 628, 630; supra, 275, 288; Jain, Cases, 608. 91 AIR 1990 SC 325 [LNIND 1989 SC 595] [LNIND 1989 SC 595] [LNIND 1989 SC 595]: (1990) 1 SCC 234 at 247. 92 Supra, 451-452. 93 (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72] : 1990 (2) LLJ 211 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72] : 1990 (2) SLR 36; Jain, Cases, 611. Also see, Infra, Chapter XIV. 94 (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72] at 57 : (1990) 2 LLJ 211 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72] : (1990) 2 SLR 36. 95 S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379; Jain, Cases, 536.

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Following are some other cases where orders were voided as no opportunity of hearing was given to the affected persons; Babulal v. State of Haryana, AIR 1991 SC 1310 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]: 1991 (2) LLJ 327 : (1991) 2 SCC 335 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]; Om Prakash Goel v. H.P.T.D. Corp. Ltd., AIR 1991 SC 1490 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267]: 1992 (1) LLJ 469 : (1991) 3 SCC 291 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267]; Shrawan Kumar Jha v. State of Bihar, AIR 1991 SC 309 : 1991 Supp (1) SCC 330 : 1992 (6) SLR 718; S.C. and Weaker Section Welfare Ass. (Regd.) v. State of Karnataka, AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180]; supra, 272. 96 (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617], 243-44 (para 17) : AIR 1999 SC 2583 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617], relying on Mohd. Swalleh v. IIIRD ADJ, (1988) 1 SCC 40 [LNIND 1987 SC 740] [LNIND 1987 SC 740] [LNIND 1987 SC 740] and following Gadde Venkaswara Rao v. Govt. of A.P., AIR 1966 SC 828 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]: (1966) 2 SCR 172. 97 (1966) 2 SCR 172 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254], 189 : AIR 1966 SC 828 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]. See also M.C. Mehta v. U.O.I., (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617], 243-44 (para 17) : AIR 1999 SC 2583 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617]. 1 Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 539 (para 21) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], relying on M.C. Mehta v. Union of India, (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617] : AIR 1999 SC 2583 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617], See also Mohd. Sartaj v. State of U.P., (2006) 2 SCC 315 [LNIND 2006 SC 26] [LNIND 2006 SC 26] [LNIND 2006 SC 26], 326 (para 20); LIC of India v. Hansraj, 2005 (9) Scale 538. 2 Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 539 (para 21) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], relying on Gadde Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 828 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]: (1966) 2 SCR 172. See also LIC of India v. Hansraj, 2005 (9) Scale 538. 3 (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617] : AIR 1999 SC 2583 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617]. 4 1964 AC 40 : (1963) 2 All ER 66 (HL). 5 (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], 395 : AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]. See also Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 539 (paras 22, 23 and 25) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156]. 6 1964 AC 40 : (1963) 2 All ER 66 (HL). 7 (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], 58 (para 31) : 1984 SCC (L&S) 62. See also Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 539 (para 24) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156]; State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] : AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680]and Rajendra Singh v. State of M.P., (1996) 5 SCC 460. 8 Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 539-40 (para 24) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156]. See also Om Prakash Mann v. Director of Education (Basic), (2006) 7 SCC 558, 560 (para 9); P.D. Agrawal v. State Bank of India, (2006) 8 SCC 776 [LNIND 2006 SC 326] [LNIND 2006 SC 326] [LNIND 2006 SC 326], 793-94 (para 39). 9 Dhakeswari Cotton Mills Ltd. v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: 1955 SCJ 122; Shivji Nathubhai v. Union of India, AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13]: 1960 SCJ 579; Supdt. (Tech I) Central Excise v. Pratap Rai, AIR 1978 SC 1244 [LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139]: 1978 Crlj 1266 : (1978) 3 SCC 113 [LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139]. 10 See, Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; Jain, Cases, 522. 11 Arjun Chaubey v. Union of India, AIR 1984 SC 1356 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90]: (1984) 2 SCC 578 : 1984 (2) LLJ 17 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90]; Jain, Cases, 881. 12 Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10 : 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]. 13 Also see, Infra, Vol. II, under 'Judicial Control.'

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14 Tibhuvandas Bhimji Zaveri v. Collector of Central Excise, (1997) 11 SCC 276, 283 (para 9). 15 Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 538 (para 19) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156]. See also Sun Bevereeges (P.) Ltd. v. State of U.P., JT 2003 (9) SC 386 : 2003 (10) Scale 405; Zila Sahkari Kendriya Bank Maryadit v. Jagdishchandra, AIR 2001 SC 1178 [LNIND 2001 SC 499] [LNIND 2001 SC 499] [LNIND 2001 SC 499]: (2001) 3 SCC 332; termination on ground of illegal appointment without giving opportunity of hearing, illegal, Lakhan Lal Tripathi v. Commandant General, (2000) 10 SCC 184; punishment to advocate for misconduct, unheard, failure of justice, Pinakin Bhallal Amin v. Haresh Manibhai Patel, JT 2000 (10) SC 537; denial of opportunity to file objection, M.P. Transport Workers' Federation Bhopal v. Rajya Parivahan Karamchari Mahasangh, (1998) 8 SCC 484. Detenu deprived of making effective representation, violation of principles of natural justice, State of T.N. v. Senthil Kumar, AIR 1999 SC 971 [LNIND 1999 SC 1324] [LNIND 1999 SC 1324] [LNIND 1999 SC 1324]: (1999) 2 SCC 646. 16 (2000) 7 SCC 90, 93 (para 8) : AIR 2000 SC 2806. 17 Indra Bhanu Gaur v. Committee, Management of M.M. Degree College, JT 2003 (8) SC 471 : 2003 (9) Scale 454 : AIR 2004 SC 248 : (2004) 1 SCC 281. 18 M.C. Mehta v. Union of India, (2000) 7 SCC 422 [LNIND 2000 SC 1162] [LNIND 2000 SC 1162] [LNIND 2000 SC 1162], 424 (para 4) : AIR 2000 SC 3052 [LNIND 2000 SC 1162] [LNIND 2000 SC 1162] [LNIND 2000 SC 1162]. 19 Hari Singh v. State of Bihar, (2000) 10 SCC 284 (para 2). 20 A.M.S. Sushanth v. M. Sujatha, (2000) 10 SCC 197, 198 (para 4). 21 Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260 [LNIND 2001 SC 1455] [LNIND 2001 SC 1455] [LNIND 2001 SC 1455], 271-72 (para 13) : AIR 2001 SC 2524 [LNIND 2001 SC 1455] [LNIND 2001 SC 1455] [LNIND 2001 SC 1455]. 22 Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., (1999) 2 SCC 21, 36 (para 34) : AIR 1999 SC 609. 23 Yashbir Singh v. Union of India, (1998) 8 SCC 574, 575-6 (paras 4 to 6). See also Sahi Ram v. Avtar Singh, (1999) 4 SCC 511 [LNIND 1999 SC 562] [LNIND 1999 SC 562] [LNIND 1999 SC 562], 512 (para 6) : AIR 1999 SC 2169 [LNIND 1999 SC 562] [LNIND 1999 SC 562] [LNIND 1999 SC 562]; Gajanan L. Pernekar v. State of Goa, (1999) 8 SCC 378 [LNIND 1999 SC 698] [LNIND 1999 SC 698] [LNIND 1999 SC 698], 380 (para 8); Prem K. Khosla v. Abhilesh Kumar, (1999) 9 SCC 443, 445 (para 5); Nar Singh Pal v. U.O.I., (2000) 3 SCC 588 [LNIND 2000 SC 541] [LNIND 2000 SC 541], 593 (para 8) : AIR 2000 SC 1401 [LNIND 2000 SC 541] [LNIND 2000 SC 541]; Haji Abdul Shakoor & Co. v. U.O.I., (2002) 9 SCC 760, 762 (para 7) : AIR 2002 SC 2423; Jaswant Singh v. State of M.P., (2002) 9 SCC 700, 701 (para 7) : AIR 2000 SC 3586 (2). 24 Canara Bank v. State of T.N., (2000) 3 SCC 210 [LNIND 2000 SC 451] [LNIND 2000 SC 451] [LNIND 2000 SC 451], 213 (para 6) : AIR 2000 SC 1196 [LNIND 2000 SC 451] [LNIND 2000 SC 451] [LNIND 2000 SC 451]. 25 JT 2005 (9) SC 58 : 2005 (9) Scale 342. 26 N.K. Durga Devi v. Commissioner of Commercial Taxes, (1997) 11 SCC 91. 27 S.L. Kapoor v. Jagmohan, AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], 145, 147 (paras 17 & 24), followed in Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 542 (para 35) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156]. 28 AIR 1968 SC 565 [LNIND 1967 SC 284] [LNIND 1967 SC 284] [LNIND 1967 SC 284], 575 (para 23) : 21 STC 326. 29 (1947) 15 ITR 302 : AIR 1947 FC 32. 30 (1960) 40 ITR 298 [LNIND 1960 SC 164] [LNIND 1960 SC 164] [LNIND 1960 SC 164] : AIR 1960 SC 1326 [LNIND 1960 SC 164] [LNIND 1960 SC 164] [LNIND 1960 SC 164]: (1961) 1 SCR 71. 31 (1978) 3 SCC 113 [LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139], 325 (para 5) : AIR 1978 SC 1244 [LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139]: 1978 SCC (Cri) 371 : 1978 SCC (Tax) 149 : (1978) 114 ITR 231 [LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139]. 32 (2001) 9 SCC 324. 33 Commissioner of Sales Tax v. Subhash & Co., (2003) 3 SCC 454 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209], 459 (para 12) : AIR 2003 SC 1628 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209]. 34 Commissioner of Sales Tax v. Subhash & Co., (2003) 3 SCC 454 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209], 463-64 (para 22) : AIR 2003 SC 1628 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209]. 35 (1998) 2 SCC 400, 401 (para 3). See also Commissioner of Customs v. Punjab Stainless Steel Industries, (2001) 6 SCC 284 [LNIND 2001 SC 1551] [LNIND 2001 SC 1551] [LNIND 2001 SC 1551], 287 (para 5) : AIR 2001 SC 3129 [LNIND 2001 SC 1551] [LNIND 2001 SC 1551] [LNIND 2001 SC 1551]; U.P. Co-operative Land Development Bank Ltd. v. Chandra Bhan

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Dubey, AIR 1999 SC 753 [LNIND 1998 SC 1116] [LNIND 1998 SC 1116] [LNIND 1998 SC 1116]: (1999) 1 SCC 741; Mayawati v. Markandeya Chand, AIR 1998 SC 3340 [LNIND 1998 SC 948] [LNIND 1998 SC 948] [LNIND 1998 SC 948]: (1998) 7 SCC 517. 36 Director General, Indian Council of Medical Research v. Anil Kumar Ghosh, (1998) 7 SCC 97 [LNIND 1998 SC 722] [LNIND 1998 SC 722] [LNIND 1998 SC 722] : AIR 1998 SC 2592 [LNIND 1998 SC 722] [LNIND 1998 SC 722] [LNIND 1998 SC 722]. 37 Hukmi Chand v. Jhabua Co-operative Central Bank Ltd., (1998) 2 SCC 291, 293 (para 5). 38 State of Punjab v. Pritam Singh, (1998) 9 SCC 606, 610 (para 10) : (1998) 3 RAJ 345. 39 State Bank of India v. Luther Kondhpan, (1999) 9 SCC 268 [LNIND 1999 SC 45] [LNIND 1999 SC 45] [LNIND 1999 SC 45], 269 (para 3). 40 Hyderabad Karnataka Education Society v. Registrar of Societies, (2000) 1 SCC 566 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103], 577 (para 24) : AIR 2000 SC 301 [LNIND 1999 SC 1103] [LNIND 1999 SC 1103] [LNIND 1999 SC 1103]. 41 Krishna v. State of Maharashtra, (2001) 2 SCC 441 [LNIND 2001 SC 210] [LNIND 2001 SC 210] [LNIND 2001 SC 210], 446 (para 8). 42 State Bank of India v. K.C. Jharakan, (2005) 8 SCC 428 [LNIND 2005 SC 771] [LNIND 2005 SC 771] [LNIND 2005 SC 771]. 43 Harinarayan Srivastav v. United Commercial Bank, (1997) 4 SCC 384 [LNIND 1997 SC 567] [LNIND 1997 SC 567] [LNIND 1997 SC 567] : AIR 1997 SC 3658 [LNIND 1997 SC 567] [LNIND 1997 SC 567] [LNIND 1997 SC 567]: JT 1997 (4) SC 595. 44 Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur, (1980) 2 SCR 1111 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92] : AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92]. See also Rameshchandra Kachardas Porwal v. State of Maharashtra, (1981) 2 SCR 866 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86] : AIR 1981 SC 1127 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86]; Indian Express Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], 542 (para 76). 45 For instance, Mafatlal v. Div. Controller, State Road Transport Corporation, AIR 1966 SC 1364 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC 372]: 1966 (1) LLJ 437 : (1966) 12 FLR 191; Devendra Pratap v. State of Uttar Pradesh, AIR 1962 SC 1334 [LNIND 1961 SC 348] [LNIND 1961 SC 348] [LNIND 1961 SC 348]; Anand Narain v. State of Madhya Pradesh, AIR 1979 SC 1923 [LNIND 1979 SC 315] [LNIND 1979 SC 315] [LNIND 1979 SC 315]; Rattan Lal Sharma v. Managing Committee, AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]: (1993) 4 SCC 10 : 1993 (2) LLJ 549 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471]; Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307 [LNIND 1989 SC 577] [LNIND 1989 SC 577] [LNIND 1989 SC 577]: 1990 Supp SCC 157 : 1990 (1) SLR 830; Union of India v. Shaik Ali, AIR 1990 SC 450 [LNIND 1989 SC 500] [LNIND 1989 SC 500] [LNIND 1989 SC 500]: 1989 Supp (2) SCC 717, supra, 261; Ram Ekbal Sharma v. State of Bihar, AIR 1990 SC 1368 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831]: (1990) 3 SCC 504 : 1990 (2) LLJ 601 [LNIND 1990 SC 269] [LNIND 1990 SC 269] [LNIND 1990 SC 269]. 46 Subramanian v. Collector of Customs, AIR 1972 SC 2178 : 1972 (1) LLJ 465 : (1972) 3 SCC 542. 47 AIR 1981 SC 858 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72]: (1981) 2 SCC 159 : (1981) 1 LLJ 453 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]. 48 AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]: (1983) 2 SCC 442 : 1983 (2) LLJ 1 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]. Also, P. Kasilingam v. P.S.G. College of Technology, AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]: (1981) 1 SCC 405 : 1981 (1) LLJ 358 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]. 49 See, Divisional Personnel Officer v. Sunder Dass, AIR 1981 SC 2177 [LNIND 1981 SC 410] [LNIND 1981 SC 410] [LNIND 1981 SC 410]: (1981) 4 SCC 563 : (1982) (1) LLJ 154 [LNIND 1981 SC 410] [LNIND 1981 SC 410] [LNIND 1981 SC 410]. 50 For instance, Devendra Pratap v. State of Uttar Pradesh, AIR 1962 SC 1334 [LNIND 1961 SC 348] [LNIND 1961 SC 348] [LNIND 1961 SC 348]: 1962 Supp (1) SCR 315. 51 AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]: (1984) 2 SCC 369 : 1984 (1) LLJ 337 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]. 52 AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]: (1980) 1 LLJ 222 : 1980 (1) LLN 297. 53 U.P. Warehousing Corporation v. Vijay Narain, AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]at 845 : (1980) 3 SCC 459 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13] : 1980 (1) LLJ 222 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]. 54 Supra, Chapter IX, AIR 1993 Bom 327.

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55 AIR 1993 Bom 327 : (1975) AC 295. The case has been discussed at supra, this chapter. 56 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; Jain, Cases, Chapter VIII, 522. 57 AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]: (1980) 4 SCC 379; Jain, Cases, Chapter VIII, 536. 58 AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 664 : (1981) 51 Comp Cas 210; Jain, Cases, Chapter VIII, 542. 59 On this aspect, see, under sub-heading : 'Post-decisional hearing', under heading 'Exclusion of Natural Justice', Chapter IX. 60 AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]: (1981) 1 SCC 405 : 1981 (1) LLJ 358 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]. 61 AIR 1975 SC 94 : (1975) 4 SCC 808. 62 M.E.S. Co. v. State, AIR 1975 All 29. 63 See, supra, Chapter IX, 300. Also see, Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 64 Gullapalli N. Rao v. A.P.S.R.T.C., AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580. Jain, Cases, Chapter X, Sec. C, 899. 65 Board of Technical Education, U.P. v. Dhanwantari Kumar, AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC 626] [LNIND 1990 SC 626]; Jain, Cases, 920. 66 On 'Notice', See under heading : 'Notice', Chapter X. AIR 1977 SC 567 [LNIND 1976 SC 456] [LNIND 1976 SC 456] [LNIND 1976 SC 456]: (1977) 1 SCC 472. 67 Travancore Rayons v. Union of India, AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. 68 Following are some other cases where orders have been quashed on the ground of having been made without giving an oral hearing to the affected person. Ram Chander v. U.O.I., AIR 1986 SC 1173 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]: (1986) 3 SCC 103; Jain, Cases, 758; State of U.P. v. Maharaja Dharmender Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505.; Jain, Cases, 597. 69 Kashinath Dikshita v. Union of India, AIR 1986 SC 2118 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]: (1986) 3 SCC 229 : 1986 (2) LLJ 468 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199]; Jain, Cases, 658. 70 Chandrama Tiwari v. Union of India, AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772]: 1987 Supp SCC 518; Jain, Cases, 662. 71 See, K.L. Tripathi v. State Bank of India, AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: (1984) 1 SCC 43; Jain, Cases, 690, 692. 72 AIR 1980 Del 200 [LNIND 1980 DEL 24] [LNIND 1980 DEL 24] [LNIND 1980 DEL 24]. 73 See under sub-heading : 'A Notice to be Effective Must be Adequate', under heading : 'Notice', Chapter X. 74 See under sub-heading : 'A Notice to be Effective Must be Adequate', under heading : 'Notice', Chapter X. 75 AIR 1986 SC 743 : (1986) 1 SCC 623. 76 Managing Director, ERIL v. B. Karunakar, AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], 1080 : (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]. See also State of U.P. v. Harendra Arora, (2001) 6 SCC 392 [LNIND 2001 SC 1155] [LNIND 2001 SC 1155], 402 (para 12); Hiran Mayee Bhattacharyya v. Secretary, S.M. School for Girls, 2001 (1) SLT 237. 77 (1999) 4 SCC 33 [LNIND 1999 SC 75] [LNIND 1999 SC 75] [LNIND 1999 SC 75], 36 (para 6) : AIR 1999 SC 1102 [LNIND 1999 SC 75] [LNIND 1999 SC 75] [LNIND 1999 SC 75]. 78 See under heading : 'Reasoned Decision', Chapter X. 79 In the following cases, inter alia, decisions of adjudicatory bodies have been quashed for failure to give reasons : Testeels Ltd. v. N.M. Desai, AIR 1970 Guj 1 [LNIND 1968 GUJ 117] [LNIND 1968 GUJ 117] [LNIND 1968 GUJ 117]; Sarju Prasad v. Chotanagpur, RTA, AIR 1970 Pat 288; H.M. Ahmed v. State, AIR 1970 All 46; Ram Murti Saran v. State, AIR 1971 All 54; B.K. Talwar v. State of Haryana, AIR 1971 Punj 48.

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80 For instance, State of Punjab v. Baklawar Singh, AIR 1972 SC 2083 : 1972 SLR 85; supra, 364; Mahabir Pd. v. State of Uttar Pradesh, AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; State of Gujarat v. Krishna Cinema, AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: (1970) 2 SCC 744; P.F. Co-op, Society v. Collector, Thanajavur, AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185]; State of Gujarat v. P. Raghav, AIR 1969 SC 1297 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC 177]: (1969) 2 SCC 187. 81 AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]: 1966 (1) SCR 466; Jain, Cases, 731. 82 AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]: 1967 (3) SCR 302; Jain, Cases, 737. 83 To the same effect is Chowgule & Co. v. Union of India, AIR 1971 SC 2021 : (1971) 3 SCC 162. 84 AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868; Jain, Cases, Chapter IX, 747. 85 AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]. 86 Also see, Narayan Dos v. State of Madhya Pradesh, AIR 1972 SC 2086 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]: 1972 Crlj 1323 : (1972) 3 SCC 676 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]; State of Uttar Pradesh v. Lalai Singh, AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333]: (1976) 4 SCC 213 : 1977 Crlj 186. In these two cases the statute had required the recording of reasons, though the administrative order was not quasi-judicial. The court restored the parties to their original position quashing the action taken against them without recording reasons by the government. These cases fall not under the rubric of natural justice but that of breach of a statutory mandatory procedural safeguard. Also see, Infra, Chapter XIX, under Discretionary Powers. 87 Agricultural PM. Committee v. Divisional Joint Registrar, Co-op. Societies, AIR 1984 Bom 269 [LNIND 1984 BOM 3] [LNIND 1984 BOM 3] [LNIND 1984 BOM 3]. 88 AIR 1975 SC 1187 [LNIND 1975 SC 115] [LNIND 1975 SC 115] [LNIND 1975 SC 115]: (1975) 1 SCC 778. 89 AIR 1966 SC 1922 [LNIND 1966 SC 102] [LNIND 1966 SC 102] [LNIND 1966 SC 102]: 1966 Supp SCR 104. 90 AIR 1972 SC 1571 [LNIND 1972 SC 215] [LNIND 1972 SC 215] [LNIND 1972 SC 215]: (1972) 2 SCC 170. 91 AIR 1975 SC 2146 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440]: (1975) 1 SCC 686. 92 AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]: (1974) 3 SCC 318 : 1974 (1) LLJ 138 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251]. 93 J.M.A. Industries v. U.O.I., AIR 1980 SC Del 200. 94 AIR 1980 Del. at 206. 95 AIR 1984 SC 160 [LNIND 1983 SC 334] [LNIND 1983 SC 334] [LNIND 1983 SC 334]: (1984) 1 SCC 141. 96 Union of India v. Mohan Lal Kapoor, AIR 1974 SC 87 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]: 1973 (2) LLJ 504 : (1973) 2 SCC 836 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]; Siemens, Engg. Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981 and Uma Charan v. State of Madhya Pradesh, AIR 1981 SC 1915 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352]: (1981) 4 SCC 102 : 1981 (2) LLJ 303 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352]. 97 AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: 1984 (1) LLJ 2 : (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. Also see, Sohanlal v. State of Punjab, AIR 1983 Punj 62. 98 See, Infra, Vol. 11, under Judicial Control: 'Mandamus'. 1 AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]: (1976) 1 SCC 1001 : (1976) 102 ITR 281 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]. 2 Star Iron Works Pvt. Ltd. v. Eastern Rly., AIR 1992 Cal 238 [LNIND 1992 CAL 7] [LNIND 1992 CAL 7] [LNIND 1992 CAL 7]. 3 Travancore Rayons v. Union of India, AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439]: (1969) 3 SCC 868. 4 See, Infra, Chapter XXIV, Vol. II, under 'Compensation.' 5 Leary v. National Union of Vehicle Builders, (1970) 2 All ER 713; Jain, Cases, Chapter XI, 921. For a comment on Leary, see, 34 Mod LR 86. 6 Leary arose out of the expulsion of a member by a trade union without giving him a hearing.

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7 (1970) 1 WLR 1281. 8 AIR 1974 Ori 127 [LNIND 1973 ORI 37] [LNIND 1973 ORI 37] [LNIND 1973 ORI 37]. 9 Kashiram Dalmia v. State, AIR 1978 Pat 265. 10 AIR 1980 AP 100 [LNIND 1979 AP 52] [LNIND 1979 AP 52] [LNIND 1979 AP 52]. 11 AIR 1976 SC 2095 [LNIND 1976 SC 240] [LNIND 1976 SC 240] [LNIND 1976 SC 240]: (1976) 3 SCC 719. 12 AIR 1974 SC 1868 [LNIND 1974 SC 209] [LNIND 1974 SC 209] [LNIND 1974 SC 209]: (1975) 4 SCC 298. 13 Shri Mandir Sita Ramji v. Government of Delhi, AIR 1974 SC 1868 [LNIND 1974 SC 209] [LNIND 1974 SC 209] [LNIND 1974 SC 209]at 1869 : (1975) 4 SCC 298 [LNIND 1974 SC 209] [LNIND 1974 SC 209] [LNIND 1974 SC 209]. 14 AIR 1974 Cal 296 [LNIND 1973 CAL 227] [LNIND 1973 CAL 227] [LNIND 1973 CAL 227]: Jain, Cases, Chapter XI, 931. 15 AIR 1977 SC 747 [LNIND 1976 SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461], 754 : 1977 (1) LLJ 262 [LNIND 1976 SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461] : (1977) 2 SCC 457 [LNIND 1976 SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461]. 16 Infra, under 'Error of Jurisdiction.' 17 Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]: (1986) 4 SCC 537 : (1987) 164 ITR 1; Jain, Cases, Chapter IX, Sec. H, 786. 18 (1979) 2 WLR 755; Jain, Cases, Chapter XI, 926. 19 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215]: (1985) 3 SCC 545. Jain, Cases, Ch IX, Sec. A, 642 20 AIR 1990 SC 1480 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639]: (1990) 1 SCC 613. 21 AIR 1992 SC 248 : (1991) 4 SCC 584; Jain, Cases, 952. 22 (1987) 1 AC 625. 23 Jayantilal Ratanchand Shah v. Reserve Bank of India, (1996) 9 SCC 650 [LNIND 1996 SC 1230] [LNIND 1996 SC 1230] [LNIND 1996 SC 1230], 658 (paras 12 to 16) : AIR 1997 SC 370 [LNIND 1996 SC 1230] [LNIND 1996 SC 1230] [LNIND 1996 SC 1230]. 24 United Planters' Association of Southern India v. K.G. Sangameswaran, (1997) 4 SCC 741 [LNIND 1997 SC 400] [LNIND 1997 SC 400] [LNIND 1997 SC 400], 753 (paras 18 and 28) : AIR 1997 SC 1300 [LNIND 1997 SC 400] [LNIND 1997 SC 400] [LNIND 1997 SC 400]. 25 Supra, Chapter XI, under heading 'Waiver'. 26 Supra, Chapter X, AIR 1963 SC 1612 [LNIND 1963 SC 38] [LNIND 1963 SC 38] [LNIND 1963 SC 38]: 1963 (1) LLJ 295. Also see. Infra, Chapter XIII. Also, Gouranga Chakraborty v. State of Tripura, AIR 1989 SC 1321 [LNIND 1989 SC 203] [LNIND 1989 SC 203] [LNIND 1989 SC 203]: (1989) 3 SCC 314; Shahdoodul Hague v. Registrar, AIR 1974 SC 1896 : (1975) 3 SCC 108 : 1974 LIC 1276, C.N. Nayak v. Deputy Commr. of Transport, Belgaum, AIR 1987 Kant 52 [LNIND 1986 KANT 18] [LNIND 1986 KANT 18] [LNIND 1986 KANT 18]; Chuharmal v. Union of India, AIR 1988 SC 1475. 27 Jaswant Singh Mathura Singh v. Ahmedabad Municipality, AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506]: 1992 Supp (1) SCC 5. 28 Accounting and Secretarial Services Pvt. Ltd. v. Union of India, AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66]. 29 The House of Lords has ruled in Al-Mehdawi v. Secretary of State, (1989) 3 All ER 843, that even when a person lost the opportunity of being heard before an adjudictorys body due to the negligence of his lawyer, and an ex parte decision was made against him, the decision cannot be quashed on the ground of denial of natural justice to him. 30 See, Infra, under Judicial Control: Certiorari; U.C. Bank v. Their Workmen, AIR 1951 SC 230 [LNIND 1951 SC 26] [LNIND 1951 SC 26] [LNIND 1951 SC 26]: 1951 SCR 380 : 1951 (1) LLJ 621 [LNIND 1951 SC 26] [LNIND 1951 SC 26] [LNIND 1951 SC 26]; also, See under heading : 'Position in England', supra, this Chapter. 31 U.C. Bank v. Their Workmen, AIR 1951 SC 230 [LNIND 1951 SC 26] [LNIND 1951 SC 26] [LNIND 1951 SC 26]: 1951 SCR 380 : 1951 (1) LLJ 621 [LNIND 1951 SC 26] [LNIND 1951 SC 26] [LNIND 1951 SC 26]. 32 See, Infra, Chapter XVIII. For cases on this point, see, Jain, Cases, Chapter XV; also see, Jain, Indian Constitutional Law, Chapter 21 (1987).

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33 AIR 1959 SC 149 [LNIND 1958 SC 147] [LNIND 1958 SC 147] [LNIND 1958 SC 147]: (1959) 35 ITR 190; Jain, Indian Constitutional Law, 470. 34 See, supra, Chapter X; Jain, Cases, Chapter IX. 35 (1971) 1 WLR 679, 684. 36 (1980) 2 MLJ 116. 37 (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680], 376-91 (paras 13 to 34) : AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680], per Jeevan Reddy, J. 38 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935. 39 (1874) LR 9 Exch 190 : 43 LJ Ex 153 : 30 LT 815. 40 It is in this context, it was observed that it is not open to an authority which has not given a notice or hearing to the affected person to say that even if it had given such an opportunity, the affected person had nothing worthwhile to say or that the result would not have been different even if such a notice or hearing was given. Of course, no definite opinion was expressed on this aspect in Ridge v. Baldwin, as pointed out by the Privy Council in Maradana Mosque Trustees v. Mahmud, (1967) 1 AC 13, 24 : (1966) 1 All ER 545 : (1966) 2 WLR 921 (PC). 41 (1968) 1 WLR 1278. 42 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935. 43 1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC. Calvin v. Carr was a case where the first contention of the plaintiff was that since the decision against him was arrived at in violation of the principle of natural justice, it was void and no appeal lay against an order which was void. "A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision." The Privy Council dealt with the argument in the following words : "This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships' opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or Court, it may have some effect, or existence, in law. This conditions might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal." 44 (1990) 1 AC 876. 45 This reminds us of what the Supreme Court of Canada said with respect to the meaning of the words "principles of fundamental justice". Section 7 of the Canadian Charter of Rights and Freedoms, 1982 declares "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". In R. v. Beare, (1988) 2 SCR 387 (SC) (Can), the Supreme Court of Canada while interpreting the words "principles of fundamental justice" said that it "guarantees fair procedure but does not guarantee the most favourable procedure that can possibly be imagined". Also see Grewal v. Canada, (1992) 1 Can FCR 581. 46 (1971) 2 All ER 1278 : (1971) 1 WLR 1578, HL. 47 (1987) 1 All ER 161, CA. 48 1981 AC 75 : (1980) 2 All ER 608 : (1980) 3 WLR 22, HL. 49 1980 AC 574 : (1979) 2 All ER 444 : (1979) 2 WLR 755, PC. 50 (1968) 1 WLR 1278. 51 1958 SCR 595 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99] : AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99]. 52 (1969) 3 SCC 392 [LNIND 1969 SC 115] [LNIND 1969 SC 115] [LNIND 1969 SC 115]. 53 (1965) 3 SCR 135 [LNIND 1965 SC 48] [LNIND 1965 SC 48] [LNIND 1965 SC 48] : AIR 1966 SC 269 [LNIND 1965 SC 48] [LNIND 1965 SC 48] [LNIND 1965 SC 48]: (1966) 2 LLJ 595. 54 (1967) 3 SCR 848 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172] : AIR 1968 SC 158 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172]: (1969) 1 LLJ 509. 55 1958 SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91] : AIR 1957 SC 882 [LNIND 1957 SC 91]

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[LNIND 1957 SC 91] [LNIND 1957 SC 91]: (1958) 2 LLJ 259. 56 (1977) 4 SCC 337 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275] : AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275]. 57 (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : (1981) 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]. 58 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935. 59 (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : (1981) 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]. 60 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935. 61 (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : (1981) 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] : AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]. 62 (1973) 1 SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113] : AIR 1973 SC 2114. 63 (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] : 1984 SCC (L&S) 62 : AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. 64 The very same test is applied by a three-Judge Bench in Sunil Kumar Banerjee v. State of W.B., (1980) 3 SCC 304 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136] : AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]: 1980 SCC (L&S) 369 : (1980) 3 SCR 179 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]. 65 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] : AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704. 66 (1991) 1 SCC 588 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990 SC 726] : AIR 1991 SC 471 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990 SC 726]: 1991 SCC (L&S) 612 : (1991) 16 ATC 505. 67 The decision in State of Orissa v. Binapani Dei (Dr.), (1967) 2 SCR 625 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37] : AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]: (1967) 2 LLJ 266, it is obvious, has to be read subject to this decision. 68 (1993) 1 SCC 78 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833]. 69 (1949) 1 All ER 109 : 65 TLRN 225. 70 (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332] : AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 2 SCR 272. 71 (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469] : AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]: 1982 SCC (Cri) 152. 72 (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28] : AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]. 73 (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197] : AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]. 74 (1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374, HL. 75 (1984) 3 SCC 465 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]. 76 1964 AC 40 : (1963) 2 All ER 66 : (1963) 2 WLR 935. 77 1980 AC 574 : (1979) 2 All ER 440 : (1979) 2 WLR 755, PC. 78 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] : AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704. 79 (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] : AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]: 1984 SCC (L&S) 62. 80 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] : AIR 1994 SC 1074 [LNIND 1993

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SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704. 81 See the discussion of this aspect at p. 515 of Wade : Administrave Law (7the Edn.). In particular, he refers to the speech of Lord Scarman in CCSU v. Minister for the Civil Service, (1984) 3 All ER 935 : (1984) 3 WLR 1174 : 1985 AC 374 at 407, where he used both these concepts as signifying the same thing. 82 (1964) 6 SCR 1001 [LNIND 1964 SC 58] [LNIND 1964 SC 58] [LNIND 1964 SC 58] : AIR 1964 SC 1300 [LNIND 1964 SC 58] [LNIND 1964 SC 58] [LNIND 1964 SC 58]. 83 (1994) 4 SCC 422 [LNIND 1994 SC 277] [LNIND 1994 SC 277] [LNIND 1994 SC 277] : 1994 SCC (L&S) 885 : (1994) 27 ATC 590. 84 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] : AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704. 85 (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] : AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059]: 1993 SCC (L&S) 1184 : (1993) 25 ATC 704. 86 Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156], 542 (para 34) : AIR 2000 SC 2783 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000 SC 1156].

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XIII ADMINISTRATIVE ADJUDICATION (I)

CHAPTER XIII ADMINISTRATIVE ADJUDICATION (I) 1. REASONS FOR GROWTH A significant aspect of the expansion of functions of the Administration in the modern era is that the power of adjudication is being given to administrative authorities. Normally, the function of adjudication of disputes between two persons, or between the state and a person, is vested in the courts. The Indian Constitution makes provisions for establishing a well-ordered and well-regulated hierarchical judicial system for this purpose.1 But it will be wrong to suppose that the courts today enjoy a monopoly of the entire adjudicatory power. Today, the courts are not the exclusive instrumentalities for adjudication of disputes. Side by side with the courts, innumerable administrative bodies have sprung up to discharge adjudicatory function in a variety of situations. These bodies are created by legislation; they decide questions of fact as well as of law, and determine a variety of applications, claims, controversies and disputes not only between an individual and a government department, but also between two individuals. At times, the task of adjudication is merely incidental to administration; but, at other times, it is more than incidental and it begins to assume a very close resemblance with the work usually performed by the judiciary. Justice by tribunals is in the offing in a big way in India resulting in the ouster of jurisdiction of the courts. This trend of vesting adjudicatory functions in officials, administrative agencies institutions or tribunals outside the hierarchy of regular courts is becoming increasingly pronounced with the passage of time. This development has not yet exhausted its momentum; new adjudicatory bodies are being created for adjudicating upon one type of disputes or the other. Therefore, the system of adjudication by bodies outside the system of law courts is becoming more and more important and pervasive with the lapse of time. This trend is not unique to India; it has been manifesting itself in the United Kingdom, in the United States and practically in every other democratic country. This is a universal modern phenomenon in democracies. Such a development brings forth several problems in Administrative Law.2 It is anybody's guess as to how many adjudicatory bodies are functioning in India at the present moment. In this Chapter, an attempt is made to describe some select such bodies and give an elementary picture of the extra-judicial adjudicative process.

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The main causes for the evolution of the system of administrative adjudication are practically the same as have led to the emergence of delegated legislation,3viz., expansion in governmental operations, activities, functions and responsibilities because of the socio-economic changes which are taking place in the country. For example, government is engaging itself more and more in planning, in providing social services to the people, in controlling the conditions of employment, in providing and promoting health, safety and general welfare of the community. To finance the expanding governmental operations, the tax-base has been broadened resulting in the levy of new and new taxes leading, consequently, to a vast proliferation of tax assessing authorities. Many disputes occur between the tax-payers and the tax assessors as regards tax liability for which a system of adjudication has to be provided for. The modern government has come to undertake many functions and regulate many activities. New laws are being enacted to modify existing interpersonal rights and obligations, or create new ones. Many socio-economic laws are being enacted. These laws generate a number of occasions when a person may be at issue with the Administration, or with another citizen or body as regards his rights and obligations. This creates the need to adjudicate upon disputes sometimes between citizens and the government, and sometimes between one citizen and another. This, in turn, has necessitated the development of the technique of administrative adjudication which may better respond to social needs and requirements than the elaborate and costly system of decisions through court litigation. If all the cases generated by the operation of the newly enacted socio-economic legislation of today were to be left to the courts for adjudication, then it will place a huge burden on the judicial machinery clogging it beyond redemption. The courts will be overloaded with work. Consequently, disposal of cases will be very much delayed and this will slow down the administrative process as the Administration cannot act in disputed matters until the court case is decided. The Administration may even hold up action in similar other cases. The courts are already faced with mounting backlog of cases. As it is, law's delay is proverbial, and further entrusting to the courts the task of adjudicating upon the many newly arising controversies as a result of the expansion of state operations would make matters worse. This point was underlined by the Franks Committee in the following words : ". . . the system of administrative tribunals has positively contributed to the preservation of our ordinary judicial system".4 In India where the courts are already overburdened, establishment of tribunals is of special relevance. Properly constituted tribunals can lighten the work of the courts resulting in immense benefit to the people who suffer a great deal because of delayed justice. As has often been said, justice delayed is justice denied. It is proverbial that an ordinary judicial proceeding is tardy, rigid, dilatory as well as expensive. Consequently, in most of the cases arising in the course of administrative functioning such a procedure would be completely inadequate. The formality of atmosphere in a court is not always conducive to the quick disposal of innumerable problems which modern administration generates. In many cases what is needed is an informal atmosphere untrammelled by too elaborate and technical rules of procedure or evidence. Effective implementation of new policies often demands speedy, cheap and decentralised determination of a large number of cases. These advantages are offered by administrative adjudication. Another important reason for the new development is that while the courts are accustomed to deal with cases primarily according to law, the exigencies of modern administration often make it incumbent that some types of controversies be disposed of by applying not law, pure and simple, but considerations of policy as well. For example, it is usual to use in modern legislation such words as 'public interest', 'reasonable', 'fair', 'adequate', to define the standards to be applied by the Administration in decision-making. Such phrases have no precise connotation. Questions often arise : what is 'fair' or 'reasonable' or 'adequate'? Such questions can adequately be answered not on the basis of pure law or facts alone, but also by applying policy considerations--such factors as considerations of socio-economic policy, financial position of the government, foreign exchange position, priorities and allocations between competing claims and the like. In the words of Wade and Phillips :5 "... modern government gives rise to many disputes which cannot appropriately be solved by applying objective legal principles or standards and depend ultimately on what is desirable in the public interest as a matter of social policy".

It is only administrative adjudication which can take care of such matters. Modern laws often give rise to conflicts between private and public interests. Answer to these questions depend ultimately on. ministerial

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policy or what is desirable in public interest as a matter of social policy. In a new experimental scheme, greater innovation and initiative may be necessary than in ordinary cases, and so greater discretion may have to be given to the Administration. An ordinary court is hardly a fit instrument for such an exercise. The judges often tend to be too literal or technical in their interpretation of legislation and such an approach may not be suitable to most of the modern socio-economic legislation which is of an experimental nature. All these factors lead to the necessity of entrusting the task of adjudicating upon disputes under modern legislation to bodies other than courts which can have flexibility of approach. Then, there is also the question of specialization and expertise. A judge is a generalist, while many newly generated cases arising out of the modern administrative process need an expertise in various disciplines other than law as well as an expert knowledge of particular subjects to which these cases relate. An expert may be in a better position to adjudicate upon such matters rather than a generalist lawyer-judge in a regular court. Thus, technical questions or problems involving complicated accountancy or economic factors may have to be better left to be determined by specialised adjudicatory bodies than the judges in the courts who, by their training and approach, may not have enough expertise to deal with them. For example, under the Tariff Act, the proper determination of the question as to under which entry of the schedule a particular commodity falls for imposing customs duty or confiscation requires knowledge of science and technology. To decide tax cases, not only a knowledge of law but of accountancy as well, is needed. To decide disputes under urban development legislation, an architect having legal knowledge may be more suited than merely a lawyer. Modern legislation does not include exhaustive norms applicable to defined fact situations and experts are needed to concretize vague standards in the context of varied fact situations. In such diverse areas as housing, social services, town planning, control of transport, professional and trade discipline, and the like, greater technical experience, greater flexibility and greater emphasis on social welfare and public interest are required than the ordinary judicial process and tradition would permit. It is possible to have a tribunal with a broad-based membership, i.e. it may consist of law men along with persons from other disciplines. For example, the recently created Central Administrative Tribunal which adjudicates upon service disputes between the Central Government and its employees consists of law men as well as service personnel.6 By continuous experience with the concerned activity, the administrator acquires a deep knowledge and understanding thereof. By continuously dealing with cases in a specific area, tribunal members also develop an expertise therein. This may result in consistency of approach and uniformity of decisions in similar cases. The same cannot be said about a judge who has to hear and decide a variety of cases involving a variety of legal issues. Perhaps, because of the lack of such expert knowledge in a court, the Supreme Court was prompted in Collector of Customs v. Ganga Setty 7 to give due deference to the executive determination and to say that it would interfere with it only when the executive adopts an interpretation of law which no reasonable person could adopt or which is perverse. The Supreme Court again reiterated this proposition in Dunlop India Ltd. v. U.O.I. 8 The appellate collector of customs held that V.P. Latex be classified under item 39 of the Indian Tariff Act and not item 82(3), thus subjecting it to a much higher duty. On appeal, the Supreme Court stated that it was not for the Court to determine for itself under which item a particular article would fall. "It is best left to the authorities entrusted with the subject." But in this case, the Court did interfere arguing that "in the state of the evidence before the revisional authority no reasonable person could come to the conclusion that V.P. Latex would not come under rubber raw". Some of the reasons, therefore, for entrusting adjudication of certain matters by the legislature to bodies other than the courts inter alia are cheapness, easy accessibility, expeditious disposal of disputes, expertise, freedom from technicality, flexibility of approach and informal atmosphere. Besides, exercise of adjudicatory powers by administrators also facilitates and smoothens to some extent the administrative process. The various adjudicatory bodies have grown not to satisfy any political dogma or philosophy, but out of practical necessity to cope with certain problems of public concern. Thus, in spite of the suggestions made from time to time in some quarters to abolish the Income Tax Appellate Tribunal, it has survived all along because it provides expeditious, and relatively at a lower cost, justice to the income tax payers as compared to the dilatory and expensive relief obtainable through a regular court of law. Every sear the Tribunal decides nearly 45,000 cases and only about 10% of these go to the High Courts. The Tribunal's hearing fees are nominal. It works in an informal atmosphere; it is not bound by technical rules of evidence and is free from procedural rigidities. Because of its composition, and also because it handles exclusively direct tax cases, it has come to

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possess the necessary expertise and specialization to deal with complicated questions of tax laws and accountancy.9 Many more Tribunals have recently been set up in India and many more are on the anvil.10 It needs to be pointed out that while administrative adjudication has certain advantages, too much emphasis thereon has its own pitfalls. Theoretically, the doctrine of rule of law is compromised whenever judicial powers are transferred from the courts to administrative bodies. There is great value in an independent court administering law and doing justice in open court. A member of an administrative adjudicators body can never have the same degree of independence and objectivity as a judge has. A judge has legal training, decides cases according to the accepted tenets of law, gives reasons for his decisions, follows precedents and his decisions are published in law reports. Witnesses are cross-examined and parties are represented by lawyers. There are higher courts to correct the errors of the lower courts both on facts and law. These important features of the court system are not all to be found in the system of administrative adjudication. There are some cases on record in India which have been going on for over 20 years before adjudicators bodies without being settled.11 However, in spite of some defects, an extensive and pervasive system of administrative adjudication has come into existence in modern democracies including India, and the chances are that the system will proliferate further in the near future. The jurisdictional area covered by such bodies is vast and variegated and their procedures differ from one body to another. A characteristic feature common to all these bodies is that they follow the norms of natural justice or fairness at some stage of their decisional process. The requirement of following these norms may be prescribed either by the parent Act, or the subsidiary legislation made thereunder, or, in the ultimate stage, may be implied if not expressly stated.12 2. STRUCTURE, POWERS AND PROCEDURE OF ADJUDICATORS BODIES The vast adjudicators paraphernalia created outside the court-system as a concomitant of the modern administration can in one sense be designated broadly as "administrative adjudication", and justice rendered by it as "administrative justice", in so far as it is concerned with administration to some extent and is set up with a view to promote and assist administrative process in the country. The expression also indicates that administrators participate in the process of adjudication. But there is another was to characterise these adjudicatory bodies, viz., quasi-judicial bodies, implying thereby that they follow procedure which is both judicial as well as administrative. In India, the term quasi-judicial is usually applied to these bodies.13 These bodies follow the norms of natural justice.14 Such bodies as take decisions affecting individuals without observing the norms of natural justice are technically characterised as administrative. The classification of bodies into quasi-judicial and administrative is an enigma of modern Indian Administrative Law and reference has already been made to this important aspect.15 The present Chapter seeks to give some idea of a few of the adjudicatory bodies in operation at the present moment. Since the adjudicatory bodies affect individual rights, they owe their existence to the statute. This means that they are begotten of the legislature. Sometimes, the legislative authority for these bodies is only indirect, i.e. these bodies may be created by rules promulgated by the executive under legislative power conferred by a statute.16 There are multifarious adjudicatory bodies functioning outside the courts; in fact, no one knows for sure how many such bodies do really exist as no comprehensive study of these bodies has ever been attempted so far in India. There is no pattern or structural design discernible in setting up these adjudicatory bodies, the reason for such diversity being that they have been established on an ad hoc basis over a long period. They carry on adjudicatory functions in a variety of situations. The existence of these multifarious bodies makes even a peripheral description of them here an unmanageable task. Therefore, what is attempted here is to mention a few broad and general features of these bodies and to describe briefly the characteristic features of a few of the important ones. The jurisdictional territory covered by these adjudicatory bodies is vast and variegated and touches upon many aspects of human activity; it includes small matters concerning a single individual, as well as subjects of nation-wide importance affecting thousands at a time. The method of giving decisions and the procedure followed by them differ from body to body. There is however one salient common feature affecting the activities of all these bodies, viz., that they all follow norms of natural justice at some stage of their decisional

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process. The requirement to follow natural justice may be prescribed by the parent Act, or delegated legislation made thereunder, or, in the ultimate analysis, may be implied if not expressly stated. But this means only the minimal procedure. While many adjudicatory bodies use only the minimal procedure, there are a few bodies which, like the courts, observe a detailed and elaborate procedure taking testimony on oath and following strict rules of evidence. In many cases, the adjudicatory bodies are vested with power of a civil court for purposes of summoning witnesses, examining them on oath, compelling the production of documents, etc.17 Most of these bodies follow a simple procedure; usually, they examine without oath, and legal representation is not permitted before them.18 The procedure to be followed by an adjudicatory body may be laid down in the statute constituting the body, or may be left to be laid down through rules made by the concerned administrative department or by the adjudicatory body itself. If no procedure is laid down then the concerned body has to follow the norms of natural justice, in which case there may arise some uncertainty as to the procedure to be followed in several matters as principles of natural justice are variable and not fixed.19 There thus exists a bewildering variety of procedures among the different adjudicatory bodies. No attempt has yet been made in India to establish any minimum procedural standards uniformly applicable to all adjudicatory bodies. It is trite that an administrative authority or a quasi-judicial authority while adjudicating upon a lis is obliged to pose and answer a right question so as to enable it to arrive at a conclusion as to whether he has jurisdiction in the matter or not20 It was held that the Selection Board is entitled to formulate its own procedure for allocation of marks.21 Further, in some cases, there may exist a hierarchical adjudicatory system within the department, i.e., a lower ranking official or body gives the first decision; an appeal may be provided for from the lower to a higher official or body. In some cases, instead of an appeal, provision is made for a review by a higher official or body.22 In some cases, an appeal from an adjudicatory body may lie to a court;23 at times, there may exist a provision only for the adjudicatory body making a reference to a court on a point of law.24 Many a time, decisions of these bodies are declared to be final.25 In any case, there exist constitutional provisions, e.g. Arts. 32, 136, 226 and 227, to provide for some kind of judicial control over all adjudicatory bodies.26 Some of the adjudicatory bodies are engaged in the task of adjudicating upon cases in which a citizen is at issue with a government department, or is under an obligation under a statutory scheme, as for example, cancellation of a licence and the proceedings involved therein. Quite a few of these bodies are concerned with disputes between citizens inter se in which the Administration may not have any direct interest and it may not be a party to the controversy, such as, rent tribunals settling cases between landlords and tenants, labour tribunals settling controversies between labour and management, etc.27 Great diversity exists in the structures of the adjudicatory bodies. These bodies have been created without any pattern or structural design. An adjudicatory body may be an integral part of the administrative department which is concerned with the task of implementing a particular law and policy, and it may exercise not only adjudicatory but regulatory functions as well. When an adjudicatory body is an integral part of the department. The relevant statute may designate or specify the official in the department who is to exercise the adjudicatory power. In many cases, however, this may not be done and the adjudicatory task may be entrusted to the government as such,28 or the concerned department,29 or the Minister.30 In such cases, the Rules of Business31 will determine the actual official who will be functioning as an adjudicator in a particular case. This situation gives rise to institutional decisions, to which a reference has already been made earlier.32 At times, the adjudicatory body may not be an integral part, but even may be somewhat independent and autonomous, of the administrative department charged with the responsibility of implementing the law and policy. Such a body is often characterised as an 'administrative tribunal', or simply a 'tribunal'.33 The characteristic features of this type of adjudicatory bodies are described below. Adjudicatory powers are also conferred on statutory bodies or designated officials thereof.34 3. TRIBUNALS A tribunal is set up by legislation to adjudicate upon disputes in a specified area. A tribunal may settle disputes between an individual and the state, or between one individual and another. Some tribunals may be

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set up to make first decisions; some tribunals may hear appeals from decisions of other tribunals or of other adjudicatory bodies. Appeals from some tribunals may go to other tribunals, and from some, appeals may go to the courts. There is always the possibility of judicial review of tribunal decisions in India because of certain constitutional provisions.35 In India, in recent years, the world of tribunals has grown substantially in both size and variety. Some tribunals have been set up in recent years with multiple objectives in view : to expedite decisions; to reduce load of work on the courts, especially the High Courts; to provide a forum consisting of lawyers as well as experts in the area of disputes falling within the jurisdictional sphere of the concerned tribunal. The best dispute-settling machinery that has been evolved so far outside the court system is a tribunal. The reason is that tribunals are separate and distinct from the Administration and are, thus, independent of administrative or political control. Being independent of the Administration, tribunal is in a position to decide cases impartially arising between the Administration and a citizen. A tribunal usually follows a procedure akin to, but somewhat less formal than, the court procedure. The objectives in establishing tribunals are manifold : (1) to provide a dispute-settling mechanism as an alternative to ordinary courts, but rather near to the court model, so as to act as a courtsubstitute mechanism with a view to relieve the courts of some work-load;36 (2) to transfer settling of some disputes from administrative officials to autonomous dispute settling mechanism so as to provide an independent element in adjudicative process and thus improve the quality of decisions;37 (3) To provide an appellate forum from the decisions made in the first instance by officials so as to act as a control mechanism over the Administration.38 The term 'Tribunal' does not have a fixed connotation; it is not a term of art. It is used in many senses. A court may be regarded as a 'tribunal'. A body may be designated as a 'tribunal' but it may not be so actually according to the criteria of a tribunal used here. A body may be designated by some other name, but it may be a tribunal in effect in the sense described here.39 Sometimes, the term 'tribunal' may be used in a wider sense so as to include all quasi-judicial bodies engaged in discharging adjudicatory functions, irrespective of whether they are autonomous of the Administration or not. Thus, even officials, ministers or departments when adjudicating upon disputes, may be characterised as 'tribunals'. Innumerable such bodies exist in India, and the one common feature underlying them all is that in the process of arriving at their decisions, they follow natural justice. Often, in India, the term 'tribunal' is used in this wider sense, the reason being that the term 'tribunal' is used in Art. 136 of the Constitution, which provides for appeals by special leave to the Supreme Court from the decisions of any court or tribunal. The Supreme Court has interpreted the term 'tribunal' in Art. 136 rather liberally so as to give itself a broader jurisdiction to correct errors made by the lower adjudicatory bodies outside the regular court structure. Even the government while discharging an adjudicatory function has been held to be a 'tribunal' under Art. 136.40 Whether the adjudicatory body in question is independent, or an integral part, of the Administration is no consideration in characterising it as a 'tribunal' for purposes of Art. 136. The Supreme Court has taken this liberal view of the term 'tribunal', because these adjudicatory bodies affect the rights of the people, and the Court felt that it was necessary to bring these bodies within the fold of judicial control and supervision lest they should start acting as semi-autocrats. But, in this Chapter, the term tribunal is being used in its restrictive sense, i.e. to denote an adjudicatory body which is autonomous of, and distinct from, the department concerned with the administration of the particular activity falling within the purview of the tribunal, but, nevertheless, binding the same by its decisions. Of course, a lot of adjudicatory work continues to be discharged by officials in the departments, but tribunals are now proliferating. England has a large number of such bodies varying widely in composition and structure. Most of these tribunals are staffed by independent persons on a full-time or a part-time basis and not by civil servants. Such bodies have been created with a view to promote adjudication of disputes more or less like the courts of law.41 Unlike an administrator who usually has multifarious duties to discharge including that of adjudication, a tribunal of the type mentioned here is primarily an adjudicative body without having any other function to discharge except such as are incidental to its adjudicative function. A strong point of such a tribunal is its freedom from political influence and its neutrality in the dispute which it adjudicates upon, more or less like the impartiality of a judge in an ordinary court, since being autonomous and not an integral part of government department, it is more or less free from such bias which an administrative department may have in implementing its policies.42 Because of the two special

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characteristics of a tribunal, viz. freedom from the departmental control and its exclusive adjudicatory function, a much higher degree of fairness and objectivity can be expected from a tribunal than an administrator-adjudicator having an intimate relationship with, or being an integral part of the administrative department. To handover decision-making function to an autonomous tribunal may also result in insulating the decision from current political pressures which may otherwise operate if the decision is made purely within a department. In this respect, the role of the tribunals more closely resembles that of the courts. "The spreading jurisdiction which has been conferred on tribunals by Parliament might have been conferred on the courts, but the statistics demonstrate that the existing courts would have been totally engulfed by the flood of cases." Besides sparing the courts from an unsupportable burden, the intention of Parliament has also been that tribunals should be accessible and its procedures less costly to the litigants.43 Such independence is essential because, in many cases, the Administration itself is a party to the dispute. It cannot be regarded as a good system when an administrator having close links with a government department is called upon to decide a dispute between that very department and an individual for it is very difficult for the concerned administrator to take an objective and a detached view, and be completely free from his association with the Administration, in such a situation.44 A tribunal comes very near to the model of a court, but it is not a court in the full sense of the term. In what respects do the tribunals contrast with the courts? Some of the basic characteristics of the courts are : they are bound by the prescribed rules of procedure and evidence as contained in the Civil Procedure Code, Criminal Procedure Code and the Evidence Act; their proceedings are conducted in public; lawyers are entitled to appear before them as a matter of course; they are bodies of general jurisdiction; the judge sitting in a court himself hears and decides a case and gives reasons for his decision; and above all, the courts are independent of the executive as judges have a tenure independent of the executive will.45 The courts can therefore take an impartial and objective view of the matter without departmental bias. As against, this, the tribunals are not generally governed by the provisions of the procedural and the evidence laws;46 their proceedings are not generally required to be conducted in public; they have a specialised jurisdiction; there may be statutory prohibition on the lawyers to appear before them (though very often this is not so). A material difference between a court and a tribunal, however, lies in the manner of appointment of their members, and control over them. Appointment, posting, promotion and conditions of service, etc., of members of tribunals are almost entirely in the hands of the executive.47 They do not usually have the same security of tenure as the judges have; the latter retire at a given age while the former are appointed for a short term only, say 5 or 7 years, and may or may not be re-appointed. The position of members of the tribunals lies somewhere in between a judge and a civil servant. Unlike the judge of a subordinate court, a member of a tribunal is not under the control of a higher court in matters of appointment, etc., but at the same time the degree of executive control over him is somewhat less than what it is in the case of an ordinary civil servant. Powers are conferred directly on a tribunal by the statute and its members have a higher status than an ordinary civil servant. Therefore, if adjudicatory functions must be left to bodies outside the courts, and this has to be done in view of the modern exigencies, then the tribunal, as described here, is much more acceptable as a forum of adjudication than an ordinary civil servant, or a department by itself sitting, as an adjudicator. Being autonomous of government departments, tribunals may cultivate that mental attitude which is necessary to decide cases free from bias towards departmental policies which may not be true of a civil servant or a department. A civil servant's personal involvement with the departmental policies, and his keen desire to push through the implementation of such policies leave him little scope to take a detached view. Then, members of a tribunal may be appointed both from amongst lawyers and those having special qualifications and skills needed to handle a particular type of cases; they are men of status as in quite a large number of cases, lawyer--members are appointed from amongst the sitting or retired judges. Their special position, status and qualifications create a psychological effect on the minds of the bureaucracy not to interfere with their work and this gives a confidence to the public that their rights would not be ignored. The position of a civil servant is very different. It is not necessary that he be a person well versed in law although he is called upon to decide questions of law and fact.48 When an administrator sits as a decisionmaker, he is imbued, consciously or unconsciously, with bias towards official policies or administrative expediency. It is not possible for him to rise above a pro-departmental attitude because of his intimate relation with the department as he is its integral part; and because of his personal involvement with departmental policies and his keen desire to push through their implementation, neutrality of action in a controversy between the department and an individual is difficult to expect from him. Even though no

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directions may be legally issued to him while he discharges a quasi-judicial function, which in itself is a doubtful proposition,49 still his senior may, and often does, issue instructions to him behind the scene. If he does not obey them, it may affect his future career--denial of promotion, transfer to a less responsible position, and even taking of disciplinary action on one ground or the other. Such risks do not exist in the case of members of a tribunal. That these are not mere imaginary or fanciful fears, but that such things do actually happen in life, can be shown by referring to Mahadayal v. Commercial Tax Officer, 50 a case involving assessment of sales tax. Many such cases must be occurring every day in actual practice without the knowledge of the affected persons, and without the courts' supervisory jurisdiction being invoked.51 The institution of autonomous tribunals would minimise such unfair practices. Even if it be accepted, for the sake of argument, that the administrators perform their adjudicatory functions objectively and impartially without favouring the departments to which they belong, yet there is a lot of truth in the maxim that "justice should not only be done but seen to be done."52 For example, how much faith will the people have in the objectivity of an adjudicator who is an employee of a corporation and he is called upon to decide a dispute between an individual and his employee corporation.53 It is very necessary in a democratic country for the adjudicatory system to enjoy credibility in the eyes of the people. People must have faith and confidence in the impartiality of the adjudicatory system and this feeling will be generated much more through the tribunal system rather than through adjudication by bureaucrats, ministers, departments and government. Adjudication by an autonomous tribunal avoids the impression of departmental bias, i.e., a department adjudicating upon disputes in which it itself is a party; it may seem as if a person is sitting as a judge in its own cause. An autonomous tribunal is in a much better position to take an objective view of the matter. Another point to remember is that while the principle of separation of powers in the sense of separating the judicial power from the executive may not be applicable in toto in the modern context, nevertheless, there is a lot of good sense underlying the principle and care ought to be taken not to dilute or compromise this principle more than what is absolutely necessary to cope with practical situations. It is therefore necessary to keep in view the need to vest adjudicatory powers, to the extent possible, in tribunals in preference to the administrative personnel. A question which has been raised is whether the autonomous adjudicatory bodies ought to be called as "administrative tribunals" or just simply 'tribunals'. The term 'administrative' before 'tribunal' may imply that the tribunal is associated with the Administration, or that it decides only such disputes as arise between the Administration and the citizen. But both of these hypotheses are not entirely true. Tribunals are 'administrative' only in the sense that these are not courts of law, and most of them deal with matters in which the Administration has an interest. It is therefore better to designate these bodies simply as tribunals so as to distinguish them from courts. The most significant characteristic of a tribunal is that it is outside and independent of the administrative department but still binds the same by its decisions. The concept of autonomy is important to give credibility to decisions by an adjudicatory body so as to avoid the impression of departmental bias, i.e. a department itself adjudicating upon a dispute in which it is a party as well may seem as if a person is sitting as a judge in its own cause--a concept discussed earlier.54 It is therefore better to discard the word 'administrative' before tribunals. In the context of India, the term administrative tribunals has now become much more incongruous to describe the tribunal system generally because this term is now applied specifically to the service tribunals recently instituted.55 The emerging modern trend in democratic countries is to move the adjudicatory powers, to the extent feasible, from departments and administrators to tribunals so that more and more decisions may be made according to procedural rules and objective considerations--an ides extremely difficult to achieve in a departmental structure. To introduce some objectivity in the decision-making process, and to give a sense of confidence to the affected person in the decisions process, tribunals ought to be created. A tribunal is also able to give better procedural safeguards to the litigants before it than an administrator acting in an adjudicative capacity. Thus, as an adjudicatory mechanism, a tribunal offers better safeguards to the individual than a mere adminstrative authority making a decision. A tribunal can be used to make an initial decision instead of leaving the same to the bureaucracy to make; or, a tribunal can be used to hear appeals from, or review decisions taken by, the bureaucracy in the first instance. It cannot be regarded as a good system of adjudication where a decision taken by one administrative officer is reviewed by another officer and there is no review of the decision by an outside body like a tribunal. Many examples can be found of such an arrangement. Under S. 3 of the U.P. Control of Rent Act, permission of the district magistrate, or

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failing him that of the commissioner, is needed to file a suit in a civil court to evict a tenant from any premises. Under S. 7F, the State Government can review the grant or refusal to grant permission under S. 3 and may make such orders as may be necessary. Under S. 10 of the Mines and Minerals (Development & Regulation) Act, 1957, an application for a mining licence is to be made to the State Government. Under Rule 54 of the Miners Concession Rules, 1960, the Central Government acts as a revisions authority against any order passed by the State Government.56 Such a system cannot be regarded as a good system by any standard. As has been disclosed in severs court cases, bureaucrats and administrators while exercising adjudicative powers do not function very satisfactorily.57 These persons are not able to shed their bureaucratic or administrative approach while acting as adjudicators. That is why autonomous tribunals are preferable to administrators for exercising adjudicatory functions. Tribunal procedure is less formal than that of the courts but is more formal than that followed by the bureaucrats and so it may be a good mean between the two extreme approaches. To hand over a decision to an autonomous tribunal may also result in insulating the decision from current politics pressures which may otherwise be brought to bear if the decision is made purely within a department. Also, by deciding cases over and over again in the specified area, the tribunal may become a specialist decision-making body in that area thus resulting in uniformity, efficiency and predictability of decisions in that area. There is another notable aspect of the tribunal system. The tribunal is also emerging as a control-mechansim over the Administration, i.e., even if an initial decision is arrived at within a departmental, it may be reviewed by a tribunal and, thus, a control-mechanism is installed over departmental decisional process. An independent tribunal can provide a reasonable safeguard to the individual in his dealings with the state, as well as to rectify any administrative abuse. The tribunal system is a modern necessity, and as a system of adjudication, it has come to stay in modern democracies. However, there are certain dangers inherent in the tribunal system which ought not to be ignored. There is a great merit and value in an independent judiciary administering law and justice in an open court and this value should not be unduly sacrificed at the altar of the tribunal system. As the Franks Committee has stated :58 "But as a matter of general principle we are firmly of the opinion that a decision should be entrusted to a court rather than to a tribunal in the absence of special considerations which make a tribunal more suitable."

At another place, the Franks Committee says that "preference should be given to the ordinary courts of law rather than to a tribunal unless there are demonstrably special reasons which make a tribunal more appropriate".59 A tribunal is not as good a mechanism for deciding disputes as a court. A tribunal is not generally as independent a body as a court; it has some links with the Administration and this may at times put to a severe test its objectivity when government itself is a party to a dispute before it, as in many cases it is. The tribunal members may or may not be legally trained, may or may not have much legal knowledge and non-lawyers may find interpreting the parent statute a difficult exercise. The non-lawyer tribunal members may not be trained in the fact-finding procedure and may at times be tempted to base their decisions on surmises and conjectures rather on evidence.60 The composition of a tribunal may not always be such as to inspire confidence among the disputants who come before the tribunal for the resolution of their disputes. Too much informality of procedure in a tribunal may degenerate into complete lack of procedure resulting in whimsical decisions based on no law, facts or evidence which may lead to injustice. The tribunals often do not give reasons for their decisions;61 their decisions may not be published and people may not have any idea as to how a tribunal will resolve the cases coming before it. Too much commitment on the part of the non-lawyer members of the tribunal to departmental policies may prompt them to ignore merits of individual cases in the interest of effectuation of departmental policies at all cost.62 Therefore, the tribunal system needs some safeguards; to be effective, the tribunal system has to be properly structured, monitored and supervised.63 Also, the tribunal system needs to be improved from time to time.64 If the tribunal system has several defects, it can be appreciated that adjudication by departments and officials has inherently many more defects. It is therefore advisable that the movement of dispute settlement should be, in the area of administrative adjudication, from an administrator to a tribunal and from a tribunal to a court. Even if, for administrative reasons, it is felt expedient to give the first decision-making function to an

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administrator, provision ought to be made invariably for an appeal from him to a court or tribunal. There is really no rigid criteria to allot decision-making functions between an administrator and a tribunal, except to say that, so far as feasible, a tribunal should be preferred to departmental adjudication. Departmental adjudication ought to be resorted to only when there are overwhelming policy considerations involved in the adjudicative process. But such situations ought to be few and not many. While considering the question of tribunal decisions versus decisions by the Ministers, the Franks Committee65 made two valid and relevant points for favouring a tribunal over a Minister for discharging adjudicatory functions. One, a tribunal makes decisions by application of principles or laws. In general, tribunal decisions are predictable, and the citizen will know where he stands. This is what the rule of law envisages.66 Therefore, where a decision is susceptible of being made according to 'rules or principles', it ought to be given to a tribunal; but where it is desirable to preserve 'flexibility of decision in the pursuance of public policy', it may be left to the Minister. This can be a good working norm to allocate decisional functions between the tribunals and the Ministers. As the Franks Committee has observed :67 "All or nearly all tribunals apply rules. No ministerial decision... is reached in this way... Sometimes the policy of legislation can be embodied in a system of detailed regulations. Particular decisions cannot, single case by single case, alter the Minister's policy."

The Committee warned that a decision made "without principle, without any rules" is "unpredictable" and "arbitrary" and is "the antithesis of a decision taken in accordance with the rule of law".68 Secondly, the Franks Committee emphasized that the choice of a tribunal rather than a Minister as a deciding authority, "is itself a considerable step towards the realisation" of the objectives of "openness, fairness and impartiality".69 A decision by a Minister does not approach these objectives, as much as a tribunal decision does, particularly, the third element.70 In spite of its several weaknesses, the system of administrative adjudication has proliferated in India. It may however be worthwhile to point out that here in India, the courts have sought to ensure some independence to adjudicatory bodies from departmental control, or control over them by their senior officers. The courts have evolved a few norms with a view to introduce some objectivity or impartiality in adjudicatory proceedings. This aspect is discussed later.71 4. FRANKS COMMITTEE In England some steps have been taken to improve the tribunal system. Things started changing with the report of the Franks Committee which served as a catalyst for reform. Since then, the British Administrative Law has been in a state of flux and constructive ferment. Not only the procedures of the tribunals and the control-mechanism over them have been improved since then by legislation, but even the courts have become more active and enterprising in the area of Administrative Law. As already stated earlier, the Franks Committee was appointed in 1955 in Britain to consider inter alia, and make recommendations on, the constitution and working of tribunals, other than the ordinary courts of law, constituted under any Act of Parliament by a Minister of the Crown or for the purposes of a Minister's functions.72 The Committee made an in-depth inquiry into the composition and working of the tribunal system and submitted its report in 1957 making a number of recommendations to improve the same. Several of these recommendations were given statutory form in course of time.73 As the tribunal system has come to stay in India, the main suggestions and recommendations made by the Committee have a relevance and are of special interest to India as well wishing to develop a viable and proper tribunal system. It may be worthwhile therefore to take note of some of the Committee's main recommendations at this place.74 The most significant aspect of the Committee's report is its approach to the critical question of relationship between the tribunals and the Administration. The Committee refused to agree with the view put forth on behalf of the Administration that the tribunals be regarded as "part of the machinery of Administration", or as "appendages of government departments".75 Instead, the Committee emphasized that the tribunals ought to

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be regarded as "machinery provided for independent adjudication," outside the department concerned. The Committee laid great stress on the freedom of a tribunal from the influence, real or apparent, of the department concerned with the subject-matter of the tribunal's decisions. "The essential point is that in all these cases, Parliament has deliberately provided for a decision outside and independent of the Department concerned," and that "the intention of Parliament to provide for the independence of tribunals is clear and unmistakable."76 Thus, the Committee anchored the tribunals firmly within the machinery of justice rather than of the Administration. Thus, as Foulkes states :77 ". . . the tribunal is not to be treated as a mere appendage of the department; and further while tribunals are not part of the ordinary courts of law. . ., in their independence of departments and in their functions they are akin to the regular courts."

The Committee's recommendations stem from this basic approach as to the nature of the tribunals. The Committee laid great emphasis on the attainment of three basic attributes in tribunal procedure, viz., openness, fairness, and impartiality. The concept of openness requires " the publicity of proceedings and knowledge of the essential reasoning underlying the decisions." The concept of fairness requires "the adoption of a clear procedure which enables parties to know their rights, to present their case fully and to know the case which they have to meet." Impartiality demands "the freedom of tribunals from the influence, real or apparent, of departments concerned with the subject-matter of their decisions.78 Emphasizing upon the need for these three attributes in tribunal procedure, the Committee stated : "Here we need only give brief examples of their application. Take openness. If these procedures are wholly secret, the basis of confidence and acceptability would be lacking. Next take fairness. If the objector were not allowed to state his case, there would be nothing to stop oppression. Thirdly, there is impartiality. How can the citizen be satisfied unless he feels that those who decide his case come to their decision with open minds?"

The underlying purpose in suggesting the standards of "openness, fairness, and impartiality" for tribunals was to enhance public confidence in the settlement of disputes and grievances through tribunals. To achieve these objectives, the Committee made a number of suggestions. As regards appointment of the tribunal chairmen and members, the Committee felt that it was important to secure the independence of the personnel of a tribunal from the department concerned with the subject-matter of its decisions, especially where the department is a frequent party to the proceedings before the tribunal. The Committee therefore disfavoured appointment of tribunal chairmen and mcmbers by the concerned Ministers. Instead, it suggested that chairmen of tribunals ought to be appointed by the Lord Chancellor and that other members of the tribunals should be appointed by the Council on Tribunals. The Committee felt that this method of appointment of tribunal personnel, would enhance the independence of the tribunal both in appearance as well as in fact.79 As regards the qualifications of the tribunal personnel, the Committee suggested that tribunal chairmen should have legal qualifications whether the tribunal is appellate or of first instance. The reason for this is that "objectivity in the treatment of cases and the proper sifting of facts are most often best secured by having a legally qualified chairman".80 However, appointment of persons without legal qualifications ought not to be ruled out when they are particularly suitable. The Committee refused to lay down "any such general desideratum in the case of members because of the wide variety of experience which has to be drawn on for the different tribunals".81 As to tribunal procedure, the Committee emphasized on "the combination of a formal procedure with an informal atmosphere". The Committee emphasized that, subject to some exceptions, tribunals should hold hearings in public, for public hearings were an important component of the concept of openness. The Committee recommended that parties must be allowed to be represented by lawyers before a tribunal, barring the most exceptional circumstances, and also that tribunal decisions must be reasoned and as full as possible.82 The most important single recommendation, however, made by the Franks Committee was to set up a Council on Tribunals for England to keep the constitution and working of tribunals under constant review.83 The Committee pointed out that perhaps the most striking feature of tribunals was their variety, not only of

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function but also of procedure and constitution, and these variations are largely attributable, not to the specialized needs of particular types of tribunals, but rather to the results of ad hoc decisions, political circumstance and historical accident than of the application of general and consistent principles. The Committee suggested that rather than have an ad hoc inquiry every now and then,84 there should be a standing committee, the advice of which would be sought whenever it is proposed to establish a new type of tribunal and which would also keep under review the constitution and procedure of the existing tribunals. It should be an advisory body. It should be responsible for appointment of members of the tribunals. Its main task should be to suggest how the general principles of constitution, organisation and procedure enunciated in the Franks Committee Report should be applied in detail to various tribunals.85 A number of the proposals put forth by the Franks Committee were implemented with some modifications by the Tribunals and Inquiries Act, 1958, consolidated again in the Tribunals and Inquiries Act, 1971.86 An autonomous permanent body known as the Council on Tribunals has been created. It consists of a chairman and between 10 to 15 members appointed by the Lord Chancellor and the Secretary of State. The Parliamentary Commissioner for Administration (Ombudsman)87 is also a member of the Council ex officio. This is to establish co-ordination between the Ombudsman and the Council. The functions of the Council are : (i) (ii) (iii)

to keep under review the constitution and working of the tribunals specified in Schedule I to the Act and, from time to time, to report on their constitution and working; to consider and report on such particular matters as may be referred to the Council with respect to tribunals, other than the ordinary courts, whether or not specified in Sch. I; and to consider and report on such matters as may be referred as aforesaid, or as the Council may determine to be of special importance, with respect to administrative procedures involving the holding by or on behalf of a Minister of a statutory inquiry. So, the Government may use the Council as an advisory body for some matters. The Council is consulted before procedural rules are madc for the tribunals specified in Schedule I. This Schedule can be expanded by the addition of more tribunals thereto.

It is the practice of government departments, though there is no such legal obligation, to consult the Council when drafting a bill creating a new tribunal, or altering the jurisdiction of an existing tribunal. The Council however is not consulted on the basic question whether a particular issue is best decided by a court, tribunal or inquiries. As one of the ways of supervising the work of tribunals is to attend their meetings, the Council members at times visit the tribunals while at work and attend their hearings. A very important aspect of the Council's work is to investigate complaints received from the public about procedures and working of tribunals. After investigation, the Council can publish its views. It also undertakes special investigations. It takes up with the concerned departments public complaints about the working of the tribunals. It advises the departments regarding improvement of tribunal procedures. Its concern is to discover whether the tribunal procedure is fair, and, if it is not so, to press for a change in future. The Council confines itself merely to procedural elements; it seeks to achieve procedural fairness. It has been pointed out that the following are the typical matters which the Council normally ensures are covered in any set of procedural rules :88 (a) (b) (c) (d) (e) (f)

notice of the time and place of the hearing, of the issues to be considered and of the method of procedure to be adopted, should be given to all parties a reasonable time in advance; the method by which the appellant or applicant will be allowed to present his case (i.e., by himself or by legal or other representative) should be stated; opportunity should be given for the appellant and all parties concerned to state their case properly, for the attendance of witnesses (if necessary) and for adequate cross-examination of those witnesses; in any case where it is contemplated that it will be necessary to arrange for a visit by the tribunal to the premises concerned, the rules should require the parties to the hearing to be given an opportunity of being present at any such visit; provision should be made for the means by which the decision of the tribunal is to be notified to the parties, and the tribunal should be required to give reasons (normally in writing) for its decision, whether or not expressly requested to do so by the parties; it should be stated whether the tribunal is to sit in public or in private; sittings should be in

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public unless there are good reasons for the contrary. The Act leaves the power of appointing tribunal members to the concerned Minister subject to the condition that he shall have regard to "any general recommendations as to the making of appointments," made by the Council on Tribunals. Thus, the Franks Committee's proposal that tribunal members be appointed by the Council on Tribunals instead of the Minister has not been implemented. In respect of certain tribunals mentioned in the Act, the chairmen are to be appointed by the appropriate authority out of a panel of persons nominated by the Lord Chancellor. This is also a modified version of the Franks Committee's suggestion that the chairmen of tribunals should be appointed by the Lord Chancellor. For certain appellate tribunals, the Act prescribes that none except a barrister, advocate or solicitor of not less than ten years' standing would be appointed as the chairmen or deputy chairmen. The Act implements another recommendation of the Franks Committee by laying down that in respect of many specified tribunals, a Minister shall not exercise his power of terminating the tenure of a tribunal member without the consent of the Lord Chancellor. The powers of the Council are consultative and advisory, neither adjudicative nor executive. It does not act as a 'super-tribunal' or an appellate forum from tribunals; it concerns itself with standards of administrative justice and procedural fairness. It is an autonomous body designed to supervise the tribunal organisation and procedure and strengthen the adjudicatory system through its recommendations from time to time. The Council submits an annual report of its proceedings to the Lord Chancellor and the Secretary of State who have to lay it before Parliament with such comments as they may think fit to attach. The Council keeps a watch on the procedures and working of tribunals, and suggests improvements therein from time to time. The Council has been characterised as a citizens' watchdog on administrative adjudication. It is to be noted that only a few of the Council members are lawyers, most of them are non-lawyers, and, thus, the composition preponderantly reflects the lay as against the legal attitudes. The Council has now been in existence for nearly four decades. Within its limited terms of reference, the Council has done commendable work in supervising tribunals during the course of its career, and has made an important contribution towards securing the proper working of tribunals. The Council has been seeking to bring some coherence into the tribunal system. The Franks Committee suggested three standards--"openness, fairness and impartiality" which the tribunals should seek to achieve. The Council strives to achieve these standards in the functioning of the tribunals. The most important contribution of the Council over the years has been the constant effort it has made to translate the general ideals into workable codes of principles and practices for the tribunals. To these standards, the Council has added a few more standards, such as, efficiency expedition and economy. "It is by all these standards, and with particular regard to the need of users, that the Council seek to assess the performance of tribunals."89 The Council has mainly concentrated on such matters as legal representation, right of cross-examination, giving of reasoned decisions by tribunals and fair hearings. However, the effectiveness of the Council supervision over tribunals is limited; its jurisdiction does not extend to all tribunals. Some scholars have expressed the view that whatever the Council is doing is good, yet it is not enough and that it should be permitted to do more and that its functions be expanded.90 According to Wade : "Broadly speaking, it is concerned with all the problems of tribunals and inquiries and is in constant negotiation with government departments about proposals for legislation, procedural rules, organizational problems, quality of members, individual complaints, and many miscellaneous matters. Its work in fact goes further than the Act prescribes. ..."91

The Franks Committee also considered the question of appeals from tribunals. In this respect, two proposals were placed before the Committee : (1) A general administrative appeal tribunal be established to hear appeals from tribunals and quasi-judicial bodies as well as against harsh or unfair administrative decisions; (2) A new division of the High Court, called the Administrative Division, be established having general appellate jurisdiction as in (1). The Franks Committee rejected both these proposals and concluded that, in general, the appropriate appeal structure is a general appeal from a tribunal of first instance to an appellate tribunal, followed by an appeal to the courts on points of law.92 Accordingly, now, in practically every case, a right of appeal to the High Court on points of law has been given. Generally speaking, the role of the courts is limited to a review of legality; they are not concerned with the merits of the case decided by a tribunal.1

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However, it may be pointed out that the verdict of the Franks Committee on the above proposals has not quietened their advocates. The Whyatt Report issued in England by Justice in 1961 suggested the setting up of a general administrative tribunal to hear appeals on merits from such discretionary decisions for which no appeal existed. In New Zealand, proposal 2, mentioned above, has been put into effect.2 In Australia, the Kerr Committee in its report on reform of Administrative Law suggested the establishment of an Appellate Tribunal in terms of the proposal 1 above, and such a body has been established. The tribunal consists of judges, administrators and private persons and it adjudicates upon the merits of a wide range of statutory decisions.3 So, what was rejected by the Franks Committee in 1957 as unworkable has been put into effect in course of time in two other Common-law countries.4 The Kerr Committee in Australia also suggested the establishment of the Administrative Review Council on the lines of, but with much wider functions than those of, the Council on Tribunals.5 Such a body has now been established in Australia.6 Like its British counterpart, the Australian body also enjoys supervisory powers over the working of specialist tribunals.7 The Australian body however has much wider terms of reference than its British counterpart. The British body has jurisdiction only in relation to adjudicatory bodies. On the other hand, the Australian body is envisaged to be a continuing body to keep under review the new structure of administrative decision-making generally.8 5. ARTS. 323A & 323B OF THE INDIAN CONSTITUTION For some time thinking in India has been veering round to the view that tribunals be set up for deciding several types of disputes. The main reason for this view has been the big load of arrears of work pending before each High Court. As a method of relieving the High Courts of some work, the idea of establishing tribunals has been mooted. Thus, the Law Commission in its XIV Report as early as 1958 advocated the setting up of some tribunals in view of certain "inherent advantages like speed, cheapness, procedural simplicity and availability of special knowledge". But the Commission specifically warned that the tribunal system should be "a supplementary system" to, and should not supplant, the ordinary law courts.9 The Study Team on Administrative Tribunals set up by the Administrative Reforms Commission in 1965 also suggested setting up of a few tribunals, such as, for settling service matters, for hearing appeals in customs matters to replace the Central Government as the appellate body in this area,10 to hear appeals in sales tax matters from appellate commissioners, and also to hear appeals from regional transport authority in respect of grant or refusal of motor vehicle permits under the Motor Vehicles Act.11 The purport of these recommendations was to interpose a tribunal between the concerned department and the courts in the areas mentioned, so that a full review of administrative decisions could be had on both facts and law. In, 1976, in Siemens,12 the Supreme Court suggested the setting up of autonomous tribunals to decide appeals arising under the Customs and Excise laws. Realising the need for establishing tribunals outside the judicial system, a step of great consequence was taken by the Central Government in 1976 : the Constitution was amended by the 42nd Amendment to add two new provisions to the Constitution, viz., Arts. 323A and 323B.13 These provisions are designed to give a fillip to the promotion of the tribunal system in the country. When these provisions are fully implemented, the system of administrative adjudication will practically be revolutionized. Arts. 323A provides that Parliament may by law establish tribunals for adjudication of disputes concerning recruitment and conditions of service of persons appointed to public services under the Central, State or any local or other authority, or a corporation owned or controlled by the government. The law made by Parliament for the purpose may specify the jurisdiction and procedure of these tribunals, and exclude the jurisdiction of all courts, except that of the Supreme Court under Arts. 136,14 with respect to service matters falling within the purview of these tribunals. The provisions of Art. 323A override any other provision in the Constitution or any other law. Art. 323B has a much wider coverage. It empowers the appropriate legislature to provide,15 by law, for adjudication or trial by tribunals of any disputes or offences with respect to the following matters : (i) taxation; (ii) foreign exchange; (iii) import and export; (iv) industrial and labour disputes; (v) land reforms; (vi) ceiling on urban property; (vii) elections to Parliament or State Legislature; (viii) production, procurement, supply and distribution of food-stuffs and other essential goods and control of prices of such goods; (ix) offences against the laws with respect to the matters specified above; and (x) any

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other incidental matter. The law establishing any such tribunal may exclude the jurisdiction of all courts except the Supreme Court under Art. 136 with respect to matters falling within the jurisdiction of these tribunals. Such a law may establish a hierarchy of tribunals, specify their powers and jurisdiction and lay down their procedure. Art. 323B has effect notwithstanding any thing in any constitutional or legal provision. An avowed objective underlying the two constitutional provisions is to somewhat lighten the load of work on the courts. At present, for example, a large number of service matters come before the High Courts through writ petitions. With the institution of service tribunals, these cases will be taken off from the High Courts. These provisions as and when fully implemented will drastically change the character of the Indian judicial system. These tribunals will have practically the same status as the High Courts as appeals from the tribunals can go directly to the Supreme Court under Art. 136. The tribunals can, if so provided by the law, remain outside the jurisdiction of the High Courts. The tribunals to be established under Art. 323B can be authorized to try certain categories of criminal offences and impose penal sanctions. This will be an innovation in the Indian legal system for till now criminal punishments have been imposed only by the courts and not by non-judicial bodies. Commenting on Art. 323A, the Supreme Court has observed in Union of India v. Parma Nanda 16 that there can only be one tribunal for the Centre and one for each State or two or more States put together. Art. 323A does not envisage a hierarchy of tribunals. It may be noted that Arts. 323A and 323B do not define the term tribunal or lay down any attributes or qualities which each such body ought to fulfil. It is left to the Legislature concerned to prescribe the composition and constitution of the tribunals and these may vary from one situation to another. But, since these tribunals will be a substitute for the High Courts, it is necessary that these bodies must be as independent of administrative control as the High Courts are. This is an extremely significant point to be taken into consideration by the legislature while enacting any law under Arts. 323A or 323B. This approach has been accepted by the Supreme Court in Sampath Kumar17 in relation to service matters under Art. 323A. This is a seminal decision having an important bearing on the structure of tribunals to be set up under Arts. 323A and 323B. Parliament enacted the Administrative Tribunals Act, 1985,18 for setting up a tribunal as envisaged by Art. 323A. Originally the Act excluded the Supreme Court jurisdiction under Art. 32 as well as that of the High Courts under Arts. 226 and 227 in relation to service matters. This was challenged before the Supreme Court in Sampath Kumar. After the filing of the case, Parliament amended the Act and restored the Art. 32 jurisdiction of the Supreme Court.19 But the question of the exclusion of the High Courts' jurisdiction under Arts. 226 and 227 still remained. In this connection, the Supreme Court pointed out that in an earlier case, K.K. Dutta v. Union of India, 20 it had itself suggested the setting up of a system of service tribunals to decide controversies relating to conditions of service with a view to save the courts from an avalanche of writ petitions and appeals in service matters. The backlog of cases in the High Courts was becoming more and more acute and pressing. The jurisdiction of the Supreme Court has been left wholly unaffected by the Act in question and, thus, "there is a forum where matters of importance and grave injustice can be brought for determination or rectification. This exclusion of the jurisdiction of the High Court does not totally bar judicial review". Bhagwati, J., had said earlier in Minerva21 that "the power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality". He went on to say that "if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review" and "it is unquestionably, to my mind, part of the basic structure of the Constitution". But, at the same time, Bhagwati, J., had qualified this statement somewhat by saying : "Of course, when I say that I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament". Accordingly, accepting Bhagwati, J.'s thesis, in Sampath Kumar, the Supreme Court characterised judicial review as "part of the basic structure of the Constitution" and a "vital principle of our Constitution". But the Court also accepted the principle : "It is possible to set up an alternative institution in place of the High Court for providing for judicial review". Therefore, as the tribunal in question has been contemplated as a "substitute" to the High Court in the scheme of administration of justice, to provide for parties to go from the Tribunal to the High Court would have been a retrograde step in view of what has been said above. So, the Court ruled : "Thus barring of the jurisdiction of the High Courts can indeed not be a valid ground of attack". But, then, the Court emphasized that the Tribunal should be a "real substitute" of the High Court "not only in form and de

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jure but in content and de facto". The tribunal "must be a worthy successor of the High Court in all respects." In a separate, but concurring opinion, the constitutional position was summarized by Bhagwati, C.J., as follows :22 "... if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set up by the Parliamentary amendment is no less effective than the High Court."

In such a case, "instead of the High Court, it would be another institutional mechanism or authority which would be exercising the power of judicial review with a view to enforcing the constitutional limitations and maintaining the Rule of Law." It thus became necessary to evaluate the composition of the Tribunal so as to ensure that it would be as effective and efficacious in exercising the power of judicial review as the High Court acting under Arts. 226 and 227 whose place it was going to take in service matters. Applying the test, the Court pointed out a few defects in the structure of the Tribunal. The Court found the composition of the Tribunal as "a little weighted in favour of the members of the services." "This weightage ... and value-discounting of judicial members does have the effect of making the Administrative Tribunal less effective and efficacious than the High Court." This defect was to be corrected by taking the following steps : 1.

A provision be made that every bench of the Tribunal shall consist of one judicial member and one administrative member and that there should be no preponderance of administrative members on any bench. Bhagwati, C.J., explained the rationale of this approach more explicitly. Service matters involve questions of interpretation and applicability of Arts. 14, 15, 16 and 311 which require legal training and judicial experience to handle. As Bhagwati, C.J., emphasized : "Of course, the presence of the administrative member would provide input of practical experience in the functioning of the services and add to the efficiency of the Administrative Tribunal but the legal input would undeniably be more important and sacrificing the legal input or not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal as compared to the High Court."

2.

The original Act had made it possible that a service man (Secretary to the Government) having no legal or judicial experience could be appointed as the Tribunal Chairman. The Court took exception to this arrangement as it thought that this "would not only fail to inspire confidence in the public mind but would also render the Administrative Tribunal a much less effective and efficacious mechanism than the High Court." Bhagwati, C.J., pointed out :23 "We cannot afford to forget that it is the High Court which is being supplanted by the Administrative Tribunal and it must be so manned as to inspire confidence in the public mind that it is highly competent and expert mechanism with judicial approach and objectivity."

3.

The Court thus insisted that only a person having legal or judicial experience could be appointed as the Chairman. MISRA, J. (rendering the majority opinion) categorically laid down that "ordinarily a retiring or retired Chief Justice of a High Court or when such a person is not available, a senior Judge of proved ability either in office or retired should be appointed". This should be so because the office of the Tribunal Chairman "should for all practical purposes be equated with the office of the Chief Justice of a High Court". Accordingly, S. 6(c) of the Act in question was held unconstitutional as it provided that a Secretary to the Government having two years experience as such could be appointed as the Chairman of the Tribunal. As regards the office of the Vice-Chairman, the Court proposed that any one eligible to be appointed as a High Court Judge (such as a district Judge or an advocate) should be equally eligible to be appointed as the Vice-Chairman of the Tribunal. The clause dealing with the office

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4.

5.

6.

of the Vice-Chairman was to be modified accordingly. The Court was anxious that the Tribunal be ensured autonomy of the executive influence. The Act in question had provided that the appointment of judicial members would be made in consultation with the Chief Justice of India, but no such provision was made in respect of the appointment of the Chairman, Vice-Chairman and administrative members. Their appointment was left to the sole discretion of the Government. In all cases regarding service matters coming before the Tribunal, Government or its officers would be a party and "it would not at all be conducive to judicial independence to leave unfettered and unrestricted discretion in the executive to appoint the Chairman, Vice-Chairman and non-judicial members as it would compromise their freedom of decision." As Bhagwati, C.J., emphasized : "... the possibility cannot be ruled out--indeed the litigating public would certainly carry a feeling--that the decision-making process of the chairman, vice-chairman and members of the Administrative Tribunal might be likely to be affected by reason of dependence on the executive for appointment and promotion".24 Without independence from executive pressure or influence the Tribunal would cease to be an equally effective and efficacious substitute for the High Court. Accordingly, Bhagwati, C.J., suggested that the appointment of the Chairman, Vice-Chairman and administrative members of the Tribunal be made by the Government only after consultation with the Chief Justice of India. Another alternative could be setting up a high powered selection committee. The majority opinion was in favour of selecting members of the Tribunal by a high powered selection committee with a sitting Judge of the Supreme Court to be nominated by the Chief Justice of India as its Chairman. Such a procedure will ensure selection of proper and competent persons to man these high offices of trust and help to build up reputation and acceptability of the tribunal. Subsequently, a five-judge bench of the Supreme Court reviewing the conflicting observations regarding the appointment process opined that recruitment to CAT be made by a high-powered selection committee under a sitting Supreme Court Judge to be nominated by the Chief Justice of India, while in case of recruitment to SAT, the selection committee may be headed by a sitting High Court Judge to be nominated by the Chief Justice of the High Court.25 The Act had fixed a tenure of five years for the Chairman, Vice-Chairman and Tribunal members, or until he attains the age of 65 years in case of Chairman or Vice-Chairman and 62 years in case of a member whichever might be earlier. The Court regarded this tenure as too short and it might even act as a disincentive to well qualified and competent but younger persons to take up the appointment in the Tribunal. Ordinarily some time is required for members to get acclimatized with service jurisprudence and by the time they are fully acquainted with that, they may be on their way out. Thus, to require retirement after five years is neither convenient to the person selected for the job nor expedient to the scheme. According to BHAGWATI, C.J., the Administrative Tribunal to be an equally effective and efficacious substitute for the High Court, must have a permanent bench, but if there is not sufficient work, at least a circuit bench at every seat of the High Court.

The directions given by the Supreme Court in Sampath Kumar were designed to ensure competence, independence, impartiality and expertise in the concerned adjudicatory body of the same order as the High Court which the new body was going to replace. Necessary amendments were made in the Act in response to the views expressed by the Supreme Court in Sampath Kumar.26 Under Art. 323A, only Parliament is empowered to set up service tribunals. But under Art. 323B, both Parliament and State Legislatures are entitled to set up various tribunals mentioned in that Article. The Calcutta High Court has recently clarified27 that only that legislature (Central or State) can pass a law to set up a tribunal to settle a class of disputes, and exclude High Court's jurisdiction from the area, which has power to legislate on the relevant subject-matter under the scheme of Central-State distribution of powers.28 An important question concerning the power of the State Legislature to exclude the writ jurisdiction of the High Court vis-a-vis a tribunal set up by it under Art. 323B arose in Awadhesh Kumar Singh v. State .29 The Patna High Court came to the conclusion that while creating a tribunal under Art. 323B, a State Legislature is not competent to exclude the jurisdiction of the High Court under Arts. 226 and 227. "The Parliament alone, by providing for an effective institutional mechanism can do it." In the instant case, the State Legislature had

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set up the Bihar Land Reforms Tribunal and excluded it from the purview of Art. 226. The High Court concluded, taking its cue from Sampath, that the tribunal in question could not be regarded as a substitute for the High Court as it lacked several important characteristics, e.g., the selection of the chairman and members of the tribunal was vested entirely in the discretion of the State Government; there was no requirement of any consultation, much less consultation with the Chief Justice of the High Court, in the matter of these appointments and so the tribunal did not enjoy the quality of being independent; the powers conferred on the tribunal did not make it equal to the High Court exercising its powers under Arts. 226 and 227 and, therefore, the tribunal was "not an effective alternative mechanism or arrangement for judicial review to replace the High Court." Accordingly, the High Court ruled that its own powers under Arts. 226 and 227 were not abrogated vis-a-vis the said tribunal. Reference may also be made here to one curious but serious aspect of Art. 323B. Hitherto, trial of criminal offences has been the exclusive preserve of the ordinary criminal courts. Art. 323B makes it possible to vest the tribunals with power to try certain types of criminal offences. Trial of criminal offences by tribunals, and imposition of penal sanctions by them, pose some dangers and several critical and delicate issues arise, e.g., tribunals, unlike the courts, are not bound by the Evidence Act.30 What will be the position of a tribunal in this respect while trying an offence? The criminal courts insist that the commission of the offence by the accused must be proved beyond reasonable doubt. Will a tribunal be bound by this rule? Hitherto, in India, there were not many tribunals, but after the addition of Arts. 323A and 323B, the era of tribunals has fully dawned on India. Several tribunals have already been set up in recent times, and the possibility is that in course of time the tribunal system will proliferate further, as there are several proposals in the air to establish several more tribunals for the settlement of several categories of disputes. For example, in Mehta v. U.O.I., 31 the Supreme Court has suggested the setting up of environmental tribunals to deal with questions of environmental pollution. The number of cases involving adjudication of the issues concerning environmental pollution and ecological destruction is on the increase putting pressure on the courts. The suggestion has been made by the Court while delivering judgment allowing the Shriram Foods and Fertilizers Industries Ltd. to restart its caustic chlorine plant which had been lying closed for some time following leakage of injurious gas. The Law Commission has suggested the setting up of a Central Tax Court to take over from the High Courts the function of judicial review of decisions of tax authorities under Art. 226.32 In Prabhakaran Nair v. State of Tamil Nadu, 33 the Supreme Court has suggested the setting up of a National Rent Tribunal on an All India basis with quicker procedure so as to deal with tenant-landlord disputes quickly. There is an acute shortage of housing in the country. Consequently, a large number of landlord-tenant disputes are piling up before the courts. The proposed tribunal will relieve the Supreme Court and the High Courts of the heavy burden of such litigation. The Court has said : "Tier of appeals should be curtailed. Laws must be simple, rational and clear... Litigation must come to an end quickly. . ." In another case,34 the Supreme Court has suggested the establishment of a Central Labour Appellate Tribunal with powers to hear appeals against the decisions of all labour courts, industrial tribunals and even authorities constituted under several labour laws enacted by the States so that a body of uniform and sound principles of Labour Law may be evolved for the benefit of both industry as well as labour throughout India. "Such an appellate authority can become a very efficient body on account of specialization," said the Court. The Law Commission has suggested the setting up of industrial relations commissions,35 as well as tribunals for dealing with disputes in the centres of higher education.36 The main motivation underlying these various suggestions is threefold : (1) Specialization--by dealing with one specific type of cases, the tribunal becomes a specialist body in that area and this helps in the development of a rational, coherent and uniform body of law throughout the country. Also, along with lawyers, persons having technical experience in that branch of activity can also be appointed as tribunal members. This results in more informed decisions. (2) Lessening the burden of the High Courts and the Supreme Court which are at present overloaded with work. (3) Quickening the pace of decision-making process as because of the huge workload at the present moment, the courts take a long time in deciding cases. 6. SOME SELECT ADJUDICATORY BODIES

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India has several different types of adjudicatory bodies. These bodies have multiplied over a period of time in a piecemeal and haphazard manner, without any consistent pattern or system, mostly in consequence of the demands of the situations calling for solution of urgent and pressing problems. Various appellations are used to designate these adjudicatory bodies, e.g., authority, commissioner, tribunal, board, court, commission etc. The lack of a comprehensive over-all pattern in the organisation of adjudicatory bodies makes the Indian Administrative Law very complicated. Out of the innumerable adjudicatory bodies functioning in the country, a brief descriptive account of only a select few of these bodies is given below. The purpose is to concretize some of the ideas mentioned above and also to give an idea of the ramifications of the system of administrative adjudication operating in the country. (i) Direct Taxes Assessment : Income, Wealth and Gift Taxes A major activity of a modern socio-economic state is to collect taxes in order to feed its expanding activities. Accordingly, proliferation of taxes and tax administration has taken place in India since the Independence. The three direct taxes levied are income, gift and wealth taxes. The machinery for assessment of all these three taxes is practically the same and can be discussed together. In the case of all these taxes, there are the same tiers of administrative appeals, the final appeal lying to the Income Tax Appellate Tribunal constituted under the Income Tax Act, 1961.37 The responsibility to administer all these taxes lies with the Central Board of Direct Taxes which is the highest executive authority. The Board is constituted under the Central Boards of Revenue Act, 1963.38 The idea underlying constituting a separate Board was to separate the assessment and collection of tax from policy matters, but this objective has not been achieved in practice. The members of the Board are officials of the Government of India and they act in a dual capacity--(i) as administrators of the tax laws, and (ii) as the Department of Revenue of the Government of India. The Act gives full freedom to the Government to appoint whomsoever it likes to the Board. The Board can have a maximum of seven members. The main function assigned to the Board is to formulate broad policies and to give "orders, instructions and directions" to all officers and persons engaged in the execution of the Act.39 Thus, the main role of the Board is supervisory. The instructions issued by the Board help in the uniform implementation of the tax laws as they lay down departmental interpretations of law on such points as are capable of several interpretations.40 The Board also makes rules under the various tax laws. The assessment procedure in income tax may be noted in some detail as it is common to the other two taxes as well. The governing statute is the Income Tax Act, 1961, which provides for the assessment procedure41 and specifies the various tax authorities. Income tax is leviable on the total income of a person in a year if it exceeds the exemption limit. An assessee having taxable income is under an obligation to file voluntarily a return of his total income every year.42 Below the Board, there are commissioners who are appointed for specified territories or class of cases. The role of the commissioners is more of a supervisory nature. The assessing officers under the Income Tax Act are the Deputy Commissioners, Assistant Commissioners or the Income-tax Officers (I.T.O.) who are vested with the relevant jurisdiction by virtue of directions or orders issued by the Central Board of Direct Taxes under S. 120(1) or (2).43 S. 120 makes a general provision concerning jurisdiction of all income-tax authorities. If the assessing officer (AO) is satisfied with the particulars furnished by the assessee in his return, he may assess and levy the tax on that basis.44 If the assessing officer considers it necessary or expedient to ensure that the assessee has not understated his income, it is obligatory on the AO to serve a notice on the assessee requiring him to appear before him and produce evidence in support of the particulars given by him in his return.45 After taking into account such evidence as the assessee may produce, or as the AO himself may have gathered, the assessing officer passes the order of assessment.46 Where however an assessee does not file a return in spite of the notice served on him, or does not appear and produce adequate or reliable evidence in support of his return, the statute requires the assessing officer to assess the assessee to the "best of his judgment", i.e., to do the best he can under the circumstances.47 The Supreme Court has emphasized that the authority making a best judgment assessment must make an

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honest and fair estimate of the income of the assessee and it must not be capricious.48 Whether it is normal assessment, or the best judgment assessment, the underlying idea is that the assessing officer should not determine the taxable income of the assessee without giving him a notice and an opportunity to adduce evidence. The tax assessment proceedings have been held to be quasi-judicial in nature, an important consequence of which is that the assessing officer must give a fair hearing to the assessee.49 If the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he can assess or reassess such income after giving a notice to the assessee.50 The "belief" of the AO should be based on some "specific, reliable and relevant information' and not on vague, indefinite, remote or far fetched information.51 The assessing officer is not completely independent of the control from superior officers in assessing the income of an assessee for income tax purposes. Under S. 118 of the Act, the Central Board of Direct Taxes may by notification in the official gazette, direct that any income-tax authority is to be subordinate to such other income-tax authority as may be specified in the notification. Under S. 144A, a Deputy Commissioner may, suo motu, or on a reference made by the assessing officer, or on the application of the assessee, call for and examine the record of any proceeding in which an assessment is pending, and may issue such directions as he deems fit for the guidance of the AO to enable him to complete the assessment and such directions are binding on the AO. The DC may issue directions if he considers that, having regard to the nature of the case or the amount involved or for any other reason, it is expedient or necessary to do so. No such directions can be issued, if prejudicial to the assessee, without giving him an opportunity of being heard. This kind of control of an assessing officer goes against the accepted notions that a quasi-judicial body should exercise its own independent judgment without any control by a superior authority.52 However, from the point of view of the revenue, there are several advantages in the system of control : protection against improper and dishonest conduct of an assessing officer; uniformity of decision in the cases decided by the assessing officers functioning under the control of one superior officer, and the benefit arising out of the wider knowledge and maturer judgment of the senior officer as compared to the assessing officers. The question of supervision of assessing officers by senior officer has been examined by various commissions and committees appointed by the government.53 None of them has recommended the abolition of the system of supervision. To remove unfairness to the individual, it is now laid down that the DC, whenever he seeks to interfere in a case, is obligated to give a hearing to the assessee whenever he seeks to give instructions to the assessing officer prejudicial to the assessee.54 If a taxpayer wishes his case to be considered further within the department, he has to appeal to the Deputy Commissioner (Appeals).55 In some cases, appeal lies to the Commissioner (Appeals).56 The appeal has to be made on a prescribed form within thirty days of the date of service of the assessment order in question.57 However, the appellate authority (Commissioner or Deputy Commissioner) may admit an appeal after the expiry of this period if it is satisfied that the appellant had sufficient cause for not presenting it within that period.58 The grounds of appeal have to be stated in writing; new grounds not originally stated in the memorandum of appeal can be raised only with the permission of the appellate authority.59 The hearing of an appeal is a quasi judicial proceeding and so it must conform to the rules of natural justice. The assessee as well as the assessing officer have the right of being heard at the hearing of the appeal either in person or by a representative.60 Before disposing of the appeal, the appellate authority may make such further inquiry as it thinks fit, or may direct the assessing authority to hold an inquiry and report the result to it.61 The order of the appellate authority disposing of the appeal has to be in writing and has to state the points for determination, the decision thereon and the reason for the decision.62 The appellate authority has power to "confirm, reduce, and enhance or annul the assessment", or set aside the assessment order and refer back the case to the assessing officer for making a fresh assessment in accordance with its directions;63 if an appeal in made from an order imposing a penalty, the appellate authority may confirm, cancel, enhance or reduce the penalty,64 and, in any other case, he may pass such order in the appeal as he thinks fit.65 This shows that the appellate authority has been invested with wide powers while hearing an appeal against an assessment order. His power is coterminous with that of the income tax officer. Accordingly, the appellate authority can modify the assessment order even on an additional ground not raised before the I.T.O.66 To infuse a sense of independent judgment in the appellate authority, the statute makes it subordinate to the Board of Direct Taxes instead of the Commissioner of Income Tax, and further provides that the Board shall not issue orders or instructions "so as to interfere with the discretion of the Deputy Commissioner (Appeals)

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or the Commissioner (Appeals) in the exercise of his appellate functions".67 The department has no right of appeal against the order passed by an assessing authority, but the statute authorises the Commissioner of Income Tax to revise any order passed by an assessing officer, within a period of two years from the end of the financial year in which the order sought to be revised was passed.68 He can revise the order if he considers it erroneous in so far as it is prejudicial to the interests of the Revenue. While reviewing the order, the Commissioner is required to give to the assessee an opportunity of being heard.69 The Commissioner has power to enhance or modify the assessment or cancel the same and direct a fresh assessment. The power of the Commissioner is quasi-judicial in character. An appeal lies to the Tribunal against the order of revision of the Commissioner.70 The Commissioner has also power to revise certain types of orders in favour of the assessee either suo motu or at the instance of the assessee. Though no order prejudicial to the assessee can be passed by the Commissioner in such a case, and the statute does not expressly provide for a requirement to be heard either to the assessee or the Revenue, yet the review function has been held to be quasi-judicial.71 As stated before, more or less the same procedure is followed in cases of assessment of wealth and gift taxes as in the case of income tax.72 Actually, the power of assessment of wealth and gift taxes is vested in the officers functioning under the Income Tax Act, but they sign the different orders in the form depending on the capacity in which they are acting. Thus, while discharging his functions under the various taxes, the assessing authority signs the order as income tax officer, wealth tax officer or gift tax officer, as the case may be. Similarly, the Commissioner of Income Tax signs the order as Commissioner of Wealth Tax or Gift Tax. All these different appellations for the same officers cause a good deal of confusion in the mind of the public. Adoption of one common designation for various authorities administering various taxes will help in avoiding this confusion. (1) Income Tax Appellate Tribunal This Tribunal was established as the ultimate appellate authority in the hierarchy of the administrative machinery under the Income Tax Act by the Income Tax (Amendment) Act, 1939. The Tribunal was constituted in accordance with the recommendations of the Income-Tax Enquiry Committee, 1936, for providing a specialized and an independent authority for dealing with tax matters. The Tribunal started functioning in 1941. Presently, the Tribunal functions under the Income Tax Act, 1961.73 The Tribunal hears appeals in cases relating to the three direct taxes, viz. : income tax, wealth tax and gift tax. The Tribunal as such is not regarded as an income tax authority and is thus not subject to the control and supervision of the Board of Direct Taxes, and, therefore, no directions can be issued by the Board to the Tribunal. The Tribunal functions under the Ministry of Law, and not the Ministry of Finance which is the administrative department concerned with the collection of various taxes, and this arrangement ensures, to some extent, the independence of the Tribunal. Under S. 119, the Board is empowered to issue instructions to subordinate tax authorities, but no such instructions can be issued to this Tribunal and so it can decide cases according to its wisdom and discretion without any departmental interference. The Tribunal is composed of "as many judicial and accountant members" as the Central Government thinks necessary to appoint.74 A judicial member should be a person who has held a judicial post for at least ten years, or who has been a member of the Central Legal Service for at least three years, or who has been in practice as an advocate for at least ten years.75 The qualification for an accountant member is ten years' practice as a chartered accountant, or service as a commissioner of income-tax for at least three years.76 Prior to 1950, the members were appointed on a term basis, the contract being for a period of five years. Now, the status of the members is that of ordinary full-time civil servants, and they retire at the age of 60 years. The judicial members are ordinarily selected from outside the department but accountant members are normally selected from among the senior members of the department since persons with requisite qualifications have not been forthcoming to be appointed as accountant members from outside. Selection is made through advertisement by a selection committee consisting of a Supreme Court Judge, the Law Secretary to the Government of India and the Tribunal President. Ordinarily a judicial member is appointed as the President of the Tribunal by the Central Government.77 The President of the Tribunal is empowered to divide it into separate benches. A bench ordinarily consists of one

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judicial member and one accountant member, and hears appeals in the territories allotted to it.78, Any member of the Tribunal can be authorised to sit singly to dispose of a case of an assessee whose total income does not exceed Rs. 100,000. The President may, for the disposal of any particular case, constitute a special bench of the Tribunal consisting of three or more members, of whom at least one has to be a judicial member and one an accountant member.79 Provision has also been made for the appointment of a Vice-President or Vice-Presidents of the tribunal.80 The benches of the Tribunal hold their sittings in several major cities of India. Bombay, Delhi, Calcutta, Madras, Ahmedabad, Hyderabad and Allahabad have more than one bench. Nearly 33 benches of the Tribunal are functioning in the country. Decisions of a bench are by majority. If there is no majority and there is equal division, the members state the points of difference and the President then refers the matter for hearing to one or more of the other members of the Tribunal. The matter is then decided by majority of all the members who have heard the case.81 Originally the proceedings of the Tribunal were not open to public. But, in 1982, the proceedings were made open to public. However, the Tribunal may in its discretion direct that proceedings before it in a particular case will not be open to the public. Formerly there was no provision for reporting the decisions of the Tribunal. It was therefore not inconceivable that on the same point of law, two benches of the Tribunal could unknowingly give conflicting opinions. But now provision has been made for publication of the orders made by the Benches of the Tribunal.82 Appeal to the Tribunal may be filed both by the aggrieved assessee as well as the assessing officer against an order of the Deputy Commissioner (Appeals) or the Commissioner (Appeals) if directed to do so by the Commissioner.83 The Tribunal is required to give an opportunity of hearing to the parties before deciding the case.84 The taxpayer is entitled to appear before the Tribunal through an authorised representative including a lawyer. The Tribunal is not governed by the rules of evidence applicable to the courts of law.85 The memorandum of appeal has to be submitted in writing on a prescribed form within 60 days of the communication of the impugned order. The respondent has a right to file a memorandum of cross-objections. The Tribunal gives oral hearing to both the parties. The Tribunal has powers of the widest amplitude to deal with the appeal. The width and ambit of the jurisdiction conferred on the Tribunal can be seen from S. 254 of the Act which says that the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as "it thinks fit". Consequently, the Tribunal has the power to annul an assessment, to set aside an assessment and direct the AO to make a fresh assessment. The power of rectification is conferred by S. 254(2). The Tribunal can rectify any mistake in its order provided the mistake is apparent from the record. Beyond this, the Tribunal has no power to review its own order.86 The Tribunal can make an ex parte order if one of the parties to the appeal fails to appear before it, and it can also set aside such an order and reconsider the order on merits, even though there is no express provision for the purpose in the Income Tax Act.87 On the day fixed for hearing, the appellant failed to appear and, consequently, the tribunal dismissed the appeal on merits after hearing the arguments of the Department. Later, the appellant requested the tribunal to restore and rehear the appeal as he could not appear earlier due to his illness. The Tribunal ruled that it had no power to cancel its prior order and rehear the appeal. On a writ petition, the Calcutta High Court ruled that under S. 254(1) of the IT Act, 1961, the opportunity of being heard is an essential element of the jurisdiction given to the Tribunal by the statute. Therefore, the tribunal has inherent jurisdiction, though not by any express provision, but ancillary to S. 254 to restore and rehear an appeal disposed of on merits if the party was prevented by reasonable and sufficient cause from appearing before it at the date of the hearing. In the instant case, the Court directed the tribunal to exercise its jurisdiction to consider restoration of the appeal.88 The Tribunal can also pass orders for staying tax recovery proceedings pending an appeal before it. Although there is no express provision in the Indian Income Tax Act authorising the Tribunal to do so, such a power is regarded as incidental or ancillary to its appellate jurisdiction to make the exercise of powers vested in it fully effective.89 The Tribunal has extensive powers of inspection and summoning of witnesses as it has been given powers of a civil court under the Code of Civil Procedure, 1908, when trying a suit, in respect of discovery and inspection, enforcing the attendance of any witness and examining him on oath, compelling the production of books of accounts, issuing commissions, etc. In case of objection to the valuation of property, there is a provision for decision on the matter through arbitration. Under S. 255(5), subject to the provisions of the Act, the Tribunal is empowered to regulate its own procedure and the procedure of its benches in all matters

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arising out of the exercise of its powers or discharge of its functions. Accordingly, the Tribunal has framed the Income-tax (Appellate Tribunal) Rules, 1963 to regulate its procedure.90 Though the Tribunal is not a court, it, nevertheless, exercises judicial powers and is thus a quasi-judicial body. The Tribunal has to act in accordance with the principles of natural justice when the Act or the rules are silent.91 As the Supreme Court has emphasized, the Tribunal has to act judicially in the sense that it is to consider with due care all the material facts and evidence in favour of and against the assessee and record its findings on all the contentions raised by the assessee and the Commissioner in the light of evidence and the relevant law.92 The Tribunal is the final fact-finding authority. The decision of the Tribunal is final on questions of fact, but not on questions of law. A superior court has no jurisdiction to re-appreciate the material on record to find out whether the facts found by the Tribunal are correct or not.93 The facts found by the Tribunal can be challenged only on certain grounds, e.g., there is no evidence to support the same or that the finding is perverse.94 Recently, the Supreme Court has stated the position in this regard as follows :95 "It is now well settled that the Appellate Tribunal is the final fact-finding authority under the Income-tax Act and that the Court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate order. The Court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriving at the findings of fact. But even there the Court cannot disturb the findings of fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law."

There is no regular appeal to any court from the orders of the Tribunal,96 but provisions exist for making a reference, at the request of a party (assessee or the Commissioner), to a High Court on any question of law arising out of "the order of the Tribunal". The Supreme Court has ruled that "it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order."97 The jurisdiction of a High Court in a reference from the Tribunal is purely advisory in nature and it is neither appellate, nor revisional, nor supervisory. While exercising it, the High Court does not sit in appeal over the tribunal decision. The jurisdiction of the High Court is restricted to deciding the questions of law referred to it by the tribunal.98 The High Court has no jurisdiction to re-appreciate the evidence on record. The High Court takes the facts as stated in the statement of the case unless the question whether the findings of the Tribunal are vitiated for one or the other reasons recognised by law is before the Court.1 Reference may be made directly to the Supreme Court if the Tribunal is of the opinion that, on account of a conflict of opinions among the High Courts, a reference should be made to that Court.2 From the judgment of a High Court, on a reference from the Tribunal, an appeal lies to the Supreme Court, in any case in which the High Court certifies it to be a fit case for appeal to the Supreme Court.3 The Tribunal has no discretion in the matter of making a reference on a question of law to the High Court.4 It can refuse to do so only on the ground that no question of law arises.5 If the Tribunal refuses to make a reference to the High Court, the aggrieved party may apply to the High Court which may require the Tribunal to state the case to it, and the Tribunal is then bound to state the case.6 If the High Court denies to call for a reference, the aggrieved party may approach the Supreme Court under Art. 136 of the Constitution. When a reference is made, the High Court hears the question of law and renders an advisory opinion.7 Any one aggrieved by this decision may approach the Supreme Court by way of appeal.8 The Supreme Court may entertain the appeal and decide the question of law and remit its opinion to the Tribunal which then disposes of the case in accordance with the Court's opinion.9 The Supreme Court has held that the Tribunal cannot pronounce upon the constitutional validity or the vires of any provision of the Income-Tax Act as it is itself the creature of the Act. Therefore, such a question cannot arise out of the order of the Tribunal and so it cannot be referred to the High Court. Such a question can only be raised in a suit or a writ petition.10 Also, a High Court cannot call upon the Tribunal to make a reference on a question of fact.11 The reference procedure is time-consuming and inconvenient. The Direct Tax Laws Committee in its Interim Report12 was also critical of the procedure, and suggested various changes in the existing procedure. The Committee in its Final Report also recommended the creation of a Central Tax Court due to several reasons : lack of expertise on the part of the Judges in tax matters, constitution of the benches of the High Courts on an ad hoc basis, delay in disposal of cases by the High Courts, and giving of conflicting opinions on -the same point by different benches of the same High Court.13

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From time to time criticism has been levelled against the functioning of the Tribunal and doubts have been created in respect of the competency of its members. Reviewing the working of the Tribunal, the Law Commission made some adverse comments in 1958. The Commission observed that men of requisite calibre and independence were not recruited to it. Often, the judicial and independent approach necessary in a final fact-finding authority was not displayed by the Tribunal. Very often the determination of complicated questions of fact and law was done in a very perfunctory manner by the Tribunal and it did not clearly record its findings of fact or its reasons for arriving at its findings. There is considerable delay in disposing of appeals by the Tribunal. The High Courts have on several occasions adversely commented on the orders passed by the Tribunal. The Law Commission accordingly recommended that the Tribunal should be abolished and that direct appeal should be provided on questions of fact as well as of law to the High Courts. From the decisions of the A.A.C. where the amount in dispute was Rs. 7,500 and above, and in other instances, appeal should lie to the High Courts on questions of law alone.14 The Direct Taxes Administration Enquiry Committee,15 in its report, while accepting that there was scope for improvement in the methods and procedures of work of the Tribunal as well as in its composition, has, nevertheless, favoured the continuance of the Tribunal for the following reasons : Taxing statutes are complicated and technical and they require a high degree of specialized knowledge of both accountancy and law, which can be gained only by a continual and exclusive concern with them; the judiciary cannot be expected to go into the minute technical and accounting aspects involved in tax appeals. The High Courts would not be able to devote sufficient time to dispose of the large number of cases now being dealt with by the Tribunal as they are already overburdened. It is, however, important that tax appeals should be disposed of early as it is in the interest of the assessee as well as of the revenue. All these arguments are quite valid and have been responsible for the creation of the tribunal-system in other countries as well as in India. The committee made a number of recommendations to enhance the prestige and impartiality of the Tribunal, e.g., a serving High Court judge should be deputed to act as the president of the Tribunal by the President of India for a fixed tenure; serving district and sessions judges should be selected for the posts of judicial members; the accountant members should be appointed from amongst the commissioners or assistant commissioners of income tax who have a span of 10 to 15 years of service ahead of them and they should not thereafter revert to the department; that the tribunal should give reasoned and detailed orders giving full facts and findings so that a clear picture of the issues involved, the arguments advanced and the conclusions arrived at might emerge; to cope with the appellate work coming before it, the number of its benches should be increased. Not all the suggestions of the committee have yet been implemented and, by and large, status quo ante continues. The proposal for the abolition of the Tribunal was again raised in some quarters after the committee's verdict,16 on the ground that people had much greater faith and confidence in the impartiality of the High Courts and the Supreme Court than they had in the fairness and integrity of the tribunals which were appointed by the executive to adjudicate upon disputes between its taxing authorities and private persons, and which lacked proper judicial atmosphere. But many of these doubts about the functioning of the Tribunal were sought to be dispelled by a number of eminent men from the judiciary and the executive on the occasion of the silver jubilee celebrations of the Income Tax Appellate Tribunal held in New Delhi on April 23, 1966.17 It was revealed that on an average the number of appeals and applications instituted in the Tribunal is about 45,000 per year and only 10 per cent of the cases disposed of by it are referred to the High Courts. The Tribunal's judgments on points of law are usually upheld in over two-thirds of the references to the High Courts, and that during the period, 1958-1963, out of 101 judgments delivered by the Supreme Court, the Tribunal's decisions were upheld in 72 cases.18 Moreover, the fact that during the year 1963-64, the income tax department lost 88 per cent of the appeals which it preferred to the Tribunal, is enough to prove the independence and impartiality of the Tribunal.19 During the year 1981-82, the Tribunal disposed of over 45,000 cases which is a very creditable performance. While there are very good reasons for continuance of the Tribunal, some of the suggestions made by the Committee on Direct Taxes Administration need to be implemented to improve the Tribunal's image and standing amongst the taxpayers. Recently, the Law Commission has come to the conclusion that there exist no "valid, convincing and cogent reasons for retention of reference procedure." The Commission has estimated that during the year 1984-85, over 37,000 tax matters were pending in the various High Courts. The Commission has accordingly recommended retention of the I.T.A.T. but abolition of the reference procedure. There is an absence of an

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all-India perspective in the High Courts till the matter reaches the Supreme Court. The Commission has also recommended abolition of the writ jurisdiction of the High Courts in tax matters,20 and establishment of a Central Tax Court having an all India jurisdiction. This Court will hear appeals from the Income Tax Appellate Tribunal on a question of law; appeals from the Tax Court can be heard by the Supreme Court under Art. 136.21 What the Commission is suggesting is a court and not a tribunal under Art. 323B. The reason is that a court may have jurisdiction to examine the constitutionality of a statute or rules or regulations made thereunder.22 A tribunal cannot exercise such a jurisdiction. Whether a court or a tribunal, it will take the place of the High Courts, but it will not enjoy the present-day writ jurisdiction of the High Courts. The Commission favours the continued retention of the Income Tax Appellate Tribunal as the last fact finding body because, in its view, this body "has immensely justified its existence and largely vindicated the trust reposed in it. It has, therefore, to be retained with its regional jurisdiction".23 (2) Settlement Commission This Commission has been set up under Chapter XIX-A of the Income Tax Act.24 The purpose underlying the setting up of the Commission is to compound the cases of tax evasion rather than proceed by way of prosecution and conviction of the tax evaders. The Commission was set up in accordance with the recommendations made by the Wanchoo Committee.25 The Settlement Commission consists of a Chairman and two members appointed by the Central Government from amongst persons of integrity and outstanding ability, having specialized knowledge of, and experience in, problems relating to direct taxes and business accounts. The Commission functions within the Department of the Central Government dealing with direct taxes. Describing the purpose of setting up the Commission, the Karnataka High Court has observed :26 " . . . the Settlement Commission was to be constituted for settling the complicated claims of chronic tax evaders as an extraordinary measure, for giving an opportunity to such persons to make true confession and to have the matters settled once for all, and earn peace of mind. It is a forum for self surrender..."

Under S. 245C, an assessee is at liberty to apply to the Settlement Commission to have his case settled, but once he has made an application, he would not be entitled to withdraw the same. Under S. 254M, the assessee has to withdraw any appeal which he may have filed challenging the assessment made against him before being able to make an application to the Commission. Also, the I.T.O. should not have preferred an appeal against the order to which the assessee's appeal relates. The Commission can reject the application of the assessee but only after giving him an opportunity of being heard. The Commission is vested with full powers to investigate cases on its jurisdiction being invoked and to quantify the amount of tax, penalty and interest that it may eventually fix as payable by the assessee. Under S. 245H, the Commission has power to grant an immunity from prosecution for "any offence" under any Central Act. S. 245L declares all proceedings before the Commission to be judicial for purposes of Ss. 193, 196 and 228 of the IPC.27 The decision of the Commission has been declared to be final and conclusive both on questions of fact and law.28 The settlement shall be void if subsequently the Commission finds that it had been obtained by fraud or misrepresentation of facts.29 The Settlement Commission itself has power to reopen completed proceedings of assessment if eight years have not elapsed from the end of the assessment year concerned.30 The Commission has all the powers vested in any income tax authority.31 The Settlement Commission is required to follow principles of natural justice and is regarded as a tribunal for purposes of Art. 136 and thus falls under the appellate jurisdiction of the Supreme Court.32 The Commission is subject to the writ jurisdiction of the High Courts33 under Art. 226 and supervisory jurisdiction under Art. 227.34 (ii) Assessment of Customs and Excise The most important and extensive revenue generating indirect taxes are two : customs and excise.35 These two taxes provide nearly 80% of tax revenue of the Central Government. With the further industrialisation of India, the revenue receipts from these two taxes are bound to increase. The Customs Act, 1962, regulates the import of goods into, and export of goods from, India and provides for assessment of customs duties imposed under the Customs Tariff Act, 1975. The procedure for assessment of duties on imports and exports

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differs fundamentally from the procedure established for assessing direct taxes. Under the Customs Act, 1962, the Central Board of Excise and Customs is the chief customs authority and has the ultimate responsibility for the administration of the Act. Assessment of duty is made by the proper customs officer, which means an officer who has been assigned the function of assessment by the board, or the collector of customs. The Act lays down no procedure for assessment of duty except to say that the goods are to be examined and tested and that officer may require the person concerned to furnish necessary documents from which the duty may be ascertained.36 But the procedure of assessment is quasi-judicial according to several court decisions.37 Further, a person claiming refund of duty paid in pursuance of an order of assessment of a customs officer lower in rank than the assistant collector of customs may apply to the latter for refund.38 Any goods liable to confiscation under the Act may be seized by a customs officer who is competent to do so.39 The collector or a deputy collector is competent to adjudicate upon all questions of confiscation or penalty without any limit. Cases of confiscation of goods not exceeding Rs. 25,000/- in value, are disposed of by the assistant collector of customs. Cases of confiscation of goods not exceeding Rs. 2,500/- in value, may be disposed of by a gazetted officer of customs lower in rank than an assistant collector. No order of confiscation of any goods or imposition of any penalty is to be made unless the owner of the goods has been given a notice in writing informing him of the grounds on which it is proposed to confiscate goods or to impose a penalty, an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein, and a reasonable opportunity of being heard in the matter.40 An order of confiscation or penalty under the Customs Act is regarded as not a mere administrative or executive act, but really a quasi-judicial act.41 But confiscation of goods by Customs authorities does not bar prosecution of the concerned person for a criminal offence, for the customs authorities are not regarded as a "judicial tribunal". Accordingly, any action taken by them does not constitute "a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy." Confiscation of goods by the customs authorities does not constitute a "prosecution" of the concerned person; the order of confiscation does not constitute a "punishment" inflicted by a Court or judicial tribunal and, thus, Art 20(2) of the Constitution does not apply.42 Till the year 1980, the Central Board of Excise and Customs had the power of hearing appeals from the original orders passed by the collector of customs, and the Government of India, Ministry of Finance, considered revision applications against the orders of the Board. These bodies discharged these functions in a quasi-judicial manner.43 The Central Board is an integral part of the Ministry of Finance; the members of the Board are officials of the government and act in dual capacity--as administrators of the tax laws and also as the Department of Revenue of the Central Government. The revision petition was disposed of by an official in the Ministry of Finance on behalf of the Government. This kind of purely departmental adjudication did not inspire confidence in the people, and, accordingly, persistent demands were made to substitute the system by an autonomous tribunal to hear appeals. The main criticism against this arrangement was that revenue considerations inevitably supervened at each of these levels of adjudication, and the concerned parties were deprived of a completely unbiased hearing. The Taxation Enquiry Commission examined this matter and recommended the setting up of a tribunal to substitute for the Government of India. The Customs Reorganisation Committee endorsed this suggestion.44 In 1967, the Study Team on Administrative Tribunals appointed by the Administrative Reforms Commission suggested that an appellate tribunal be established for the purpose of hearing appeals in customs assessment in place of the Central Government.45 The Working Group on Customs and Central Excise Administration appointed by the Administrative Reforms Commission in 1968 noted that "there is considerable public opinion in favour of independent appellate tribunal in the area of customs adjudication. The principal consideration mentioned is that such independent machinery would provide an assurance to the public that decisions are fair and without any departmental bias, whereas at present even though the decisions are in fact by and large, quite fair, the impression of the departmental bias remains".46 The Supreme Court also criticised the unsatisfactory manner in which these bodies performed their adjudicatory task. For example, in Bharat Barrel & Drum Mfg. Co. v. Collector of Customs, 47 the Court observed :48 ". . . there was no proper investigation of the dispute by the collector of customs and the Central Board of Excise & Customs. We are also of the view that in view of the infirmities disclosed in the orders made by departmental authorities the Central Government in revision should have proceeded to consider the merits of the appeals... The

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Government should have given to the appellants adequate opportunity to prove that there had been no substantial deviation from the terms of the licence..."

In Siemens,49 the Supreme Court took the opportunity to comment adversely upon the unsatisfactory manner in which customs authorities discharged the function of assessing customs duties on imports. A consignment had been cleared by the concerned customs authorities after payment of duty. Later, the assistant-collector of customs issued a notice to the importer that the said consignment had been subjected to a lower duty and that it was assessable at a higher duty. The importer sent representation against this demand but, to no avail. He then represented to the collector but did not succeed in his contention. He finally filed a revision to the Central Government. The Government rejected the revision application in a "short but pithy" order. The importer then came in appeal to the Supreme Court under Art. 136. Interpreting items 72(3) and 73(21) of the First Schedule to the Indian Customs Tariff, the Court held that the custom's demand for a higher duty was unjustified. However, the highlight of the judgment delivered by Bhagwati, J., was the emphasis he laid on giving of reasons by quasi-judicial bodies. He pointed out that the proceedings before the various authorities--assistant collector, collector, Central Government--were quasi-judicial and it was a well-settled principle of law that a quasi-judicial authority must record reasons in support of its order. Nevertheless, in the instant case, no authority chose to give reasons in support of the order made by him. In the words of the Court :50 But, unfortunately, the Assistant Collector did not choose to give any reason in support of the order made by him. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation... It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been a little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him.

The Court emphasized that it was essential that administrative authorities and tribunal accorded fair and proper hearing to the persons sought to be affected by their orders and gave sufficiently clear and explicit reasons in support of their orders. That way, the quasi-judicial bodies will carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is a basic principle of natural justice which must inform every quasi-judicial process. It should be observed in its proper spirit and "mere pretence of compliance with it would not satisfy the requirement of law". Finally, the Court made the following significant suggestion to improve adjudicatory process in the assessment of customs duties :51 In fact, it would be desirable that in cases arising under Customs and Excise laws an independent quasi-judicial tribunal, like the Income-tax Appellate Tribunal or the Foreign Exchange Regulation Appellate Board, is set up which would finally dispose of appeals and revision applications under these laws instead of leaving the determination of such appeals and revision applications to the Government of India. An independent quasi-judicial tribunal would definitely inspire greater confidence in the public mind.

Ultimately, in 1980, provisions were made for the creation of a Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT), on the lines of the Income Tax Appellate Tribunal, to hear appeals from the lower customs (as well as excise and gold) authorities.52 This Tribunal was conceived on the same model as the Income Tax Appellate Tribunal. Many provisions in the Act were similar to those found in the Income Tax Act relating to the ITAT.53 For purposes of judicial review, the same reference procedure as operates in case of ITAT was adopted in case of Customs Tribunal as well. The Tribunal was set up on October 16, 1982. The Tribunal was faced with a heavy backlog of cases and roughly 25,000 appeals were pending before it on March 31, 1986.54 The working of CEGAT has not been very satisfactory as is revealed in the recent Supreme court case R.K. Jain v. Union of India .55 It has been thought desirable to recast the Act, particularly to remove the reference to High Court procedure which causes delay, and provide access only to the Supreme Court. This is in conformity with Art. 323B. Accordingly, the Customs and Excise Revenues Appellate Tribunal Act, 1986, has been enacted by Parliament to set up a new tribunal having a President and such number of Judicial and Technical Members as the Central Government may deem fit to appoint. The jurisdiction and powers of the Tribunal may be exercised by its Benches. Each Bench is to consist of one Judicial Member and one Technical Member. The Benches of the Tribunal are ordinarily to sit at New

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Delhi and at such other places as the Tribunal President may deem fit. For appointment as the President, the qualifications are : (i) the person is, or has been, a High Court Judge; (ii) has, for at least two years, held the office of a Judicial or a Technical Member. For appointment as a Judicial Member, a person--(i) is, or has been, or is qualified to be a High Court Judge; or (ii) has been a member of the Indian Legal Service and has held a post in Grade I of that service or any equivalent or higher post for at least five years. To be a Technical Member, a person should have been a member of the Indian Customs and Central Excise Service, Group A, for at least 30 years, and should have held during this period the post of Collector of Customs or Central Excise or any equivalent or higher post for at least ten years. The President and all members of the Tribunal are to be appointed by the President of India. Appointment of the President and members of the Tribunal is to be made in consultation with a Selection Committee consisting of--(a) a Chairman to be nominated by the Chief Justice of India; and (b) such other members as may be nominated by the Central Government. The term of office of the President and the members is three years or until he attains the age of 65 years whichever is earlier. The President or a member cannot be removed from office except by an order of the President of India on the ground of misbehaviour or incapacity after an inquiry made by a Supreme Court Judge after giving a reasonable opportunity of being heard in respect of the charges brought against him. The Tribunal President after ceasing to hold office is ineligible for further employment tinder the Central or State Government. A member is eligible to be appointed as the Tribunal President but not for any other employment under the Central or State Government. The President or a member after ceasing to hold office in the Tribunal cannot appear, act or plead before the Tribunal. The salaries and allowances of the Tribunal members are fixed by the Central Government but these cannot be varied to a member's disadvantage after his appointment. There thus seem to be adequate provisions in the Act to ensure autonomy to the Tribunal which is extremely necessary as the Tribunal settles disputes between the Revenue, on the one hand, and a tax payer on the other.56 The Tribunal is entitled to exercise all jurisdiction and powers exercisable in relation to an appeal against inter alia--(a) a decision passed by the Collector of Customs as an adjudicating authority; (b) an order passed by the Collector (Appeals) under S. Sections 128A or 129D of the Customs Act, in which a question of rate of duty or value of goods for the purpose of assessment of duty is in issue or is one of the points in issue. The Tribunal has jurisdiction in excise matters as well. The Tribunal has power to punish for its contempt like a High Court under the Contempt of Courts Act.57 Some procedural rules have been laid down in the Act for the Tribunal to follow. The Tribunal is not bound by the procedure laid down in the Civil Procedure Code but is to be "guided by the principles of natural justice". Subject to the Act and the rules made thereunder, the Tribunal can regulate its own procedure. It has been given powers of a civil court for summoning witnesses, discovery and inspection of documents, and reviewing its own decisions. Lawyers can appear before the Tribunal. In case of difference of opinion among the members on any point, they have to state the points of difference and make a reference to the President who can either hear the points himself or refer the same to one or more other members and the decision thereon is to be taken according to the opinion of the majority of all the members who have heard the matter, including those who first heard it. The Tribunal after hearing the parties may pass such order as it thinks fit on the appeal "confirming, modifying or annulling" the decision or order appealed against, or may refer the case back to the authority which passed such decision, with such directions as the Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. It can also rectify any mistake apparent from the record in any order. Judicial review over the tribunal will be restricted and, as stated above, this is a major point of departure between the proposed Tribunal and CEGAT set up in 1982. Whereas from CEGAT, it is possible to make a reference to the High Court on a point of law and then an appeal can go to the Supreme Court, the jurisdiction of the High Court will be eliminated, in case the new tribunal is set up. No court other than the Supreme Court is to have any jurisdiction over the Tribunal. After the setting up of the new Tribunal, the jurisdiction of the Customs, Excise and Gold (Control) Tribunal concerning customs matters (also excise matters) will come to an end and all cases pending before it will be transferred to the new Tribunal. But the Act of 1986 has not yet been brought into force and CEGAT continues to function as before.58 It is doubtful whether the new tribunal will ever be set up. In its 115th Report, the Law Commission has recently suggested the setting up of a central tax court for indirect taxes

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from which appeals may lie to the Supreme Court not under the statute but under Art. 136 of the Constitution.59 The Commission is not in favour of setting up the tribunal under the Act of 1986.60 (iii) Nationalization Laws : Compensation Tribunals In the past, the relevant nationalization law, apart from laying down the principles on which compensation was to be computed, established a tribunal to adjudicate upon the claims and disputes relating to the quantum of compensation under the statutory principles. The Air Corporations Act, 1953 created two statutory corporations, namely, the Air India and the Indian Airlines.61 It nationalised all air transport companies carrying on the business of passenger traffic, and vested the business as well as the assets of the nationalised units in the two corporations. The Act constituted a tribunal for the settlement of amount of compensation to be paid to the companies whose business had been taken over by the two corporations. In the first instance, the amount of compensation was determined by the corporation with the approval of the government. If the air company did not accept the compensation, it could have the matter referred to the tribunal comprising three members, of whom at least one was to be either a sitting or a retired judge of a High Court or the Supreme Court, and one was to be a person having special knowledge of matters relating to the enquiry. The tribunal had the power of a civil court under the Code of Civil Procedure in respect of administering oath, discovery and production of documents, receiving evidence on affidavits and issuing commissions for examining witnesses. Besides, the tribunal was given power to decide its own procedure. It might review its decision in case of an error found on the face of the record or a clerical error. The decision of the tribunal within its jurisdiction was to be final and not challengeable in any. court. There was no provision for appeal against the decision of the tribunal. From the various provisions relating to the composition of the tribunal and its power it seems the tribunal was an autonomous body. The Life Insurance Corporation Act, 1956 created a tribunal for adjudicating upon the question of adequacy of compensation to be given to the insurers whose business in life insurance was taken over by the Life Insurance Corporation. Under the Act, there could be one or more tribunals for the purpose, as need be. The composition of the tribunal was very similar to that of the tribunal under the Air Corporations Act, 1953. It was to be composed of three members, of whom one was to be a sitting or a retired judge of a High Court or the Supreme Court, and one to be a person having special knowledge of matters relating to the enquiry. The tribunal had powers of a civil court in respect of summoning and enforcing attendance of any person and examining him on oath, requiring evidence on affidavit and issuing commissions for examination of witnesses and documents. Further, the tribunal had the power to regulate its own procedure. It could review its own decision in case of an error on the face of the record or a clerical error. The procedure for determining the compensation was the same as in the case of the Air Corporations Act. The amount of compensation was to be determined by the corporation with the approval of the Central Government. But if this amount was not acceptable to the insurer, then he could have the dispute referred to the tribunal constituted under the Act. Once a reference was made the tribunal acquired jurisdiction to proceed with the case. The tribunals under the Air Corporations Act and the L.I.C. Act were more or less similar. The Coal Bearing Areas (Acquisition and Development) Act, 195762 was enacted to enable the Central Government to acquire lessees' rights over unworked coal bearing areas on payment of reasonable compensation to the lessees, so that these areas could be developed in the public sector to produce coal. The principles of compensation were laid down in the Act and a tribunal was established to decide disputes arising out of the application of the same in concrete situations. Under the Act, the coal bearing land or any rights in or over such land including any mining lease could be acquired by the Central Government or could be vested in a government company. S. 13 provided for compensation for the land so acquired and for extinguishing of prospecting licences and mining leases over such land. The amount of compensation was to be fixed by agreement first. If no such agreement could be reached, then the matter was to go before a tribunal constituted by the Central Government consisting of one person qualified to be a High Court judge. In any particular case, the Central Government could nominate a person having expert knowledge in mining to assist the tribunal; in such a case, the person interested could also nominate any other person for the same purpose. At the commencement of the proceedings, the concerned parties state the fair amount of compensation in their view. Thereafter, the tribunal, after hearing the dispute, was to make an award determining the amount of compensation and also the person to whom it was to be paid. An appeal against

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the award of the tribunal could be made to the High Court within 30 days of the date of the award. In the same genre may be placed the special court under the Waste Lands (Claims) Act, 1863. For investigation and speedy adjudication of the claims under the Act, the government is empowered to constitute a special court consisting of an uneven number of persons not less than three. One of the members of the court shall be the judge of the district court or the officer presiding in the principal civil court of original jurisdiction in the district. The Indian Evidence Act does not apply to the proceedings before the court. The statute provides for an oral hearing of the cases by the court and for this purpose the court can require the personal attendance of the claimant of the waste land and the objector thereof. The court has power to summon witnesses; the proceedings before the court are to be regulated so far as possible by the Civil Procedure Code. Parties are entitled to appear through their agents including lawyers, After hearing the parties, the court is to make such order in the case as it deems proper. Judicial review of the orders of the court by way of appeal to, or revision by, a regular court is excluded. However, the court may draw up a statement of the case either of its own motion or on the application of the parties if it has reasonable doubt about any question of law, or usage having the force of law, or the construction of a document affecting the merits of the case, and submit the same, along with its own opinion, to the High Court. Such a reference is obligatory if a question involves any principle of general importance, or affects the rights of a class. (iv) Labour Disputes After 1947, great expansion of adjudicatory bodies in the area of labour-management relations has taken place. In fact, the tendency all along has been to keep this area out of the normal judicial machinery. A reason for this approach may be the assumption that while the courts would take the contract as it is, such a formal approach would be inconsistent with the tribunals set up to resolve employer-employees disputes where the approach is what ought to be the contract rather than what is the contract.63 It is not unusual, therefore, to find legislative prohibitions on judicial scrutiny of determinations of the tribunals and quasi-judicial bodies in the area of labour relations.64 There are now nearly 108 labour enactments, Central and State,65 and they contain their own judicial (or quasi-judicial) and administrative authorities to implement their provisions. These authorities are given different names and are designated differently, such as commissioner, authority, court or tribunal. In practice, the functions of a number of authorities overlap each other and also no clear-cut procedures are laid down for the functioning of these authorities.66 A suggestion has been made that in the interest of speedy implementation of the legal provisions, and to ensure quick and inexpensive remedies, the quasi-judicial labour bodies under various laws should be integrated into a Labour Judicial Cadre consisting of a hierarchy of tribunals dealing with labour matters.67 However, the National Labour Commission differed from this recommendation of its Study Group. On the other hand, it suggested that to bring about a feasible degree of simplification, and uniformity in definitions, those enactments may be integrated as cover subjects having a common objective, rather than having a single code integrating all labour laws.68 A brief resume of the adjudicatory bodies under some of the labour enactments is given here. (1) ThePayment of Wages Act, 1936 The Act has been passed to regulate payment of wages to certain classes of persons employed in industry and its object is to provide for a speedy and effective remedy to the employees in respect of their claims arising out of illegal deductions or unjustified delay made in paying wages to them. The State Government is empowered to appoint any Commissioner for Workmen's Compensation or any other officer with experience as a judge of a civil court or as a stipendiary magistrate, or presiding officer of a labour court or an industrial tribunal, as an authority under the Act, for a specified area to hear and decide claims arising out of deductions or delay made in payment of wages. The authority also considers questions incidental to these matters.69 The jurisdiction of the authority to deal with such cases is exclusive as matters lying within the jurisdiction of the authority are excluded from the jurisdiction of ordinary civil courts. Proceedings before the authority begin by an application which must be made within six months from the date of the unauthorised deduction. In suitable cases, the authority can entertain an application even though presented after the expiry of the prescribed period. The parties can appear through a legal practitioner, or an official of a

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registered trade union, etc. The authority is required to give a reasonable opportunity of being heard to the applicant and the employer. The authority has the powers of a civil court in respect of taking evidence, enforcing the attendance of witnesses and compelling the production of documents, etc. Any amount directed to be paid by the authority may be recovered from the employer, as if it were a fine imposed by a magistrate. An appeal lies to the district court or the court of small causes against the order of the authority. These courts have power to refer questions of law to the High Court. (2) The Workmen's Compensation Act, 1923 The Act empowers the State Government to appoint Commissioners for Workmen's Compensation for different areas within the State. No formal qualifications for the Commissioners have been prescribed by the Act.70 The Commissioner has power to determine the liability of a person to pay compensation under the Act to an injured workman who suffers inquiry in the course of and arising out of employment. In deciding any matter before him, the Commissioner may take the assistance of one or more persons having special knowledge of any matter relevant to the issues before him. In this way, the Commissioner can secure some expert knowledge regarding the problems he has to adjudicate upon. Usually, the assistance of a medical expert is called for. The Commissioner is given all the powers of a civil court under the Civil Procedure Code, 1908 for the purpose of taking evidence on oath, enforcing the attendance of witnesses and compelling the production of documents and material objects. The proceedings before the Commissioner commence by filing an application, accompanied by the prescribed fee and stating the prescribed particulars, e.g., a statement of the circumstances under which it is being made, names and addresses of the parties, details of service history and the relief claimed. No application is to be made unless some question has arisen between the parties which they have been unable to settle by agreement. The parties are entitled to appear through a legal practitioner, an officer of an insurance company or a registered trade union or, with the permission of the Commissioner, any other authorised person, etc. The Indian Evidence Act does not apply to the proceedings before him. However, the Commissioner is required to record briefly the evidence of every witness. Subject to the rules made by the government, the Commissioner has powers to award costs at his discretion. The Commissioner may recover as arrears of land revenue any amount payable by any person under the statute. A limited right of appeal in cases involving substantial question of law, and submission of questions of law by the Commissioner, if he deems fit, to the High Court are provided by the Act. The reference provision is hard to understand in view of the appeal and also of the fact that one of the reasons for the establishment of the present procedure is expeditious disposal of a case; and a reference by the Commissioner during the pendency of the case before him is bound to delay its disposal. The proposition is well established that the principles of natural justice are not "embodied rules" and what particular principle applies to a given case depends, to a great extent, on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for the purpose.71 Accordingly, taking into consideration the provisions of the Workmen's Compensation Act, the objective behind it, the purposes intended to be achieved by it and the high authority on whom the power is conferred, the procedure adopted by the Act has been held to be "adequate and effective" from the point of view of natural justice.72 The proceedings before the Commissioner have been characterised as not being in the nature of an arbitration, but approximating closely the proceedings of a civil court, and his adjudication, a judgment.73 There is a conflict of opinion among the High Courts on the question whether the Commissioner under the Workmen's Compensation Act falls within the purview of S. 115, CPC, 1908.74 The M.P. High Court in Yeshwant Rao v. Sampat 75 has ruled that no such revision lies from the commissioner's order made under S.19(2). Under this provision, the commissioner decides a question as to the liability of a person to pay compensation or its amount or its duration. The High Court has argued that the word 'court' in S. 115, CPC, has been used in a narrow sense, meaning only a "civil" court in the normal hierarchy of courts." This section does not include tribunals established under several statutes exercising special jurisdiction. some other High Courts also support this view.76 On the other hand, some High Courts take a different view.77 For instance, in Rajiyabi,78 the Bombay High Court has ruled that the commissioner functioning under the Workmen's Compensation Act is a 'court' and his decision a 'judgment' and not an award for purposes of letters patent

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appeal to the High Court.79 Under S.30 of the Act, an appeal can be taken to the High Court from the decision of the Commissioner. The question was whether from the decision of a single High Court Judge in appeal from the Commissioner, a further letters patent appeal could be taken to the Division Bench under Cl. 15 of the Bombay High Court Letters Patent. It was argued against further appeal that the Commissioner was not a court, that his decision was an award, that the proceedings in appeal before the High Court were a mere continuation of the proceedings before the Commissioner, and, therefore, the decision of the single judge would not amount to a judgment. The High Court ruled that the proceedings before a commissioner were not in the nature of an arbitration but closely approximated the proceedings in a civil court, that his adjudication was a judgment and an appeal could therefore lie under the Letters Patent. When an appeal is taken to the High Court from a decision of the Commissioner for Workmen's Compensation, the Commissioner is not a necessary or proper party to the appeal because he has no personal right or interest in the subject-matter of the appeal and he is in no way interested or connected with the relief sought in the appeal against the respondents. The Commissioner decides the claim as any other tribunal or court. As a court cannot be a party to the cause as there is no lis between a court and a party to the proceedings, so the Commissioner does not become a party to the appeal unless some allegations are made against him in appeal which make his presence in the High Court necessary to explain the same.80 Till 1946, in England questions of compensation for industrial injury were decided by courts, but the result was unsatisfactory. Arrears mounted and decisions were delayed affecting the workmen adversely. Also, as Robson comments : "Money, time and professional skill were squandered for more than half a century in a scandalously wasteful manner in settling these claims. The fundamental reason was that, instead of a claim for compensation being determined on the grounds of public interest, it was opposed and obstructed at every stage by the adverse interest of the employer or his insurance company".81 In 1946, the function of adjudication of compensation claims was transferred from the courts to the adjudicatory bodies. In India, since as early as 1923, adjudication of such cases has been with the Commissioner and not courts. But, law's delays have crept in this scheme of things as well and the whole process of disposal of cases takes quite sometime to the detriment of the workmen claiming compensation. The number of claims has been rising over the years, and cases remain pending for quite sometime. In some States, administrative officers or junior judicial officers appointed as Commissioners discharge the duties of this office in addition to their other duties and this inevitably delays disposal of cases. (3) The Minimum Wages Act, 1948 For settling claims arising out of the payment of less than the minimum rates of wages, the appropriate government may appoint an authority under the Act. The person to be appointed as the authority may be a Commissioner for Workmen's Compensation, or any officer of the Central Government exercising functions as a labour commissioner for any region, or any officer of the State Government not below the rank of a labour commissioner, or any other officer who has some experience as a judge of a civil court or as a stipendiary magistrate. The application to the authority must be made by the workman or by a lawyer on his behalf, within six months of the date on which the minimum wage became payable, but the application may be admitted after six months when the applicant satisfies the authority that he has sufficient cause for not making the application within such period.82 The authority is to give a hearing to the employer and if it deems fit may order payment of the discrepancy between the minimum wage and the actual wage paid, together with the compensation not exceeding 10 times of the discrepancy. The authority possesses all powers of a civil court for purposes of taking evidence, and enforcing attendance of witnesses and compelling the production of documents, and it is to be a civil court for the purposes of S. 195 and Chap. XXXV of the Code of Criminal Procedure, 1898 (now Code of 1973).83 The Act makes no provision for an appeal from the decision of the authority to any higher administrative forum or the court. (4) The Employees' State Insurance Act, 1948 The Act establishes the Employees' State Insurance Corporation for administering the scheme of health insurance for the benefit of industrial workers. It also provides for establishment by the State Government of Employees' Insurance Court to decide disputes and adjudicate on claims about various matters under the statute.84 The Court is to consist of such number of judges as the State Government may think fit to appoint. Any person who is or has been a judicial officer or is a legal practitioner of five years' standing is qualified to

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be appointed as a judge of the Court. The proceedings before the Court commence by an application in the prescribed form which is to contain such particulars and is to be accompanied by such fee as may be prescribed by the rules made by the State Government in consultation with the Employees' State Insurance Corporation. A party is entitled to be represented by a legal practitioner, an officer of a registered trade union, or with the permission of the court, any other authorised person. The Indian Evidence Act does not apply to the proceedings before the Court. It is, however, required to follow the procedure as may be prescribed by rules made by the State Government. The Court has all the powers of a civil court in the matter of enforcing the attendance of witnesses, administering oath, compelling the discovery and production of documents, and recording evidence, etc. It has also power to award costs at its discretion and poor persons earning less than particular amounts of wages specified by the State Government may be permitted to institute proceedings without payment of costs or fees. The order of the Court is enforceable as a decree of a civil court. The jurisdiction of the civil courts is precluded except as follows. The Court has power to submit any question of law for the decision of the High Court in a case pending before it. Any order of the Court involving substantial question of law is also appealable to the High Court. (5) The Industrial Disputes Act It is the most important piece of labour legislation for adjudication of labour disputes. The Act makes provision for the creation of three kinds of tribunals :85 labour courts, industrial tribunals, and national industrial tribunals.86 The appropriate government (Central or State as the case may be) is authorised to constitute one or more labour courts for adjudication of industrial disputes relating to matters specified in the second schedule to the statute and industrial tribunals for adjudication of disputes specified in the second or third schedule. The Central Government is empowered to constitute one or more national tribunals for adjudication of disputes which in its opinion involve questions of national importance or affecting industrial establishments in more than one State. An employer or employee cannot directly approach any of these adjudicatory bodies for settlement of an industrial dispute. These tribunals get their jurisdiction to decide a case only when it is referred to them by the government which has a discretion in the matter. Terms of reference determine the scope of the tribunal's power and jurisdiction. When points of dispute are specified in the reference to a tribunal, it must confine itself to those points, and matters incidental thereto. A tribunal cannot decide an issue not referred to it.87 The government cannot modify or cancel a reference, but it can transfer the case to another adjudicating body.88 The governmental power to make a reference of an industrial dispute to a tribunal for adjudication has been held to be administrative in nature because the government is not supposed to go into the merits of the dispute. Its function is only to refer the dispute to the adjudicatory body. Once the government refuses to refer a dispute, it can later refer it after reconsidering the matter.89 Reference may be made not only of a dispute which has arisen, but also of one which may be apprehended. Each of these adjudicatory bodies is to consist of one person only who is known as the presiding officer. The qualification prescribed for the presiding officer is judicial experience as specified in the Act. So far as the actual practice goes as regards appointment of presiding officers, the Labour Department of each government maintains a list of names of suitable persons for appointment and these are the names generally recommended by the concerned High Court. The Act mentions two disqualifications for appointment to the posts of presiding officers--that the person concerned is not an independent person or he has attained the age of 65 years. Nothing is mentioned in the Act as regards the tenure of appointment of the presiding officers. The appropriate Government can appoint two assessors to advise a tribunal. S. 23 puts a general embargo on strike and lock-out during the period of proceedings before a labour court, tribunal or national tribunal and for a period of two months after the conclusion of the proceedings. The labour tribunals have been empowered to follow such procedure as they may think fit. The Indian Evidence Act does not apply to proceedings of these tribunals. But since they are quasi-judicial bodies, principles of natural justice are to be followed by them. An employee is entitled to be represented by an officer of the relevant trade union and an employer by the officer of the relevant association of the employers. Parties may be represented by a legal practitioner only with the consent of each other and the labour tribunal.90 The tribunals have discretion to award costs subject to any rules made under the statute. As in the

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case of other tribunals, the labour tribunals have the powers of a civil court with regard to enforcing the attendance of any person and examining him on oath; compelling the production of documents; issuing commissions for examination of witnesses, etc. When a party is prevented from appearing at the hearing due to a sufficient cause, and the tribunal makes an ex parte award, the tribunal can set aside the ex parte award and hear the matter afresh on merits. There is no express statutory provision giving jurisdiction to the tribunal to do so. But the tribunal has to be regarded as endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively to do justice between the parties. S. 11(1) says that the tribunal "shall follow such procedure as the arbitrator or other authority may think fit." These words are of widest amplitude and confer ample power upon the tribunal to devise such procedure as the justice of the case demands.91 The tribunal does not become functus officio immediately after giving its award. It continues to have jurisdiction over the matter until the expiry of 30 days after the publication of the award. Thus, if an application for setting aside an ex parte award is filed within 30 days of the publication thereof, the tribunal is competent to entertain the same. It does not matter that the actual order setting aside the award is passed after the expiry of 30 days. Setting aside an ex parte award does not amount to review of its own decision.92 An award made by the tribunal does not become automatically enforceable. At the conclusion of the proceedings, the tribunal is to submit its award to the appropriate government. Within 30 days of its receipt, the award is to be published by the government. The award becomes enforceable at the expiry of 30 days of its publication, unless the government is of the opinion that it is inexpedient on public grounds affecting national economy or social justice to give effect to the whole or part of the award and in such a case the government may make an order rejecting or modifying the award. If no such order is made, the award becomes enforceable at the expiry of 90 days. If an order has been made, then it has to be laid along with the award before the legislature as soon as possible and becomes enforceable at the expiry of 15 days of its laying. Judicial review is excluded and an award published by the government is not to be called in question in any manner whatsoever. Thus, the awards of these tribunals enjoy finality as the Act envisages no appeal from the decisions of these fora. However, these tribunals are subject to the writ jurisdiction of the High Courts under Art. 226, their supervision under Art. 227, Supreme Court's writ Jurisdiction under Art. 32 and its appellate jurisdiction under Art. 136. Thus, the High Courts and the Supreme Court have become for all practical purposes appellate fora from labour tribunals.93 The body of rules applicable to the area of labour-management, relations remains uncertain. The legislature while laying down an adjudicatory machinery and procedural norms under the Industrial Disputes Act has not codified the substantive legal principles applicable to labour-management disputes. The major task of the labour tribunals, therefore, is to locate somehow the guidelines to aid them in their decisions. The only guidelines available to them are the general constitutional Directive Principles of State Policy, and a few reports of commissions and committees relating to some aspects of labour-management relations in some industries. These tribunals enjoy vast discretion in laying down the law according to the concept of socio-economic justice94 which itself is somewhat flexible and would mean, in effect, what appears to a tribunal to be just and proper in the circumstances of the case. The labour tribunals have the power to redraw contracts of employment to subserve industrial peace. The labour tribunals thus perform a delicate task, for the labour law being intimately related to industrial growth and development deeply affects the economic prosperity and well-being of the country.95 A major drawback of the present-day system is that while a large number of labour tribunals function in the country, and lay down different norms on similar questions, no central forum has been provided under the law to hear appeals from them, and thus infuse uniformity of law in this all important area. In 1950, a Central Labour Appellate Tribunal having four benches functioning at Bombay, Calcutta, Lucknow and Madras was set up with a view to provide a central appellate authority to review the divergent and sometimes conflicting decisions of numerous industrial tribunals and to co-ordinate their activities. The tribunal was manned generally by retired High Court judges and could hear appeals, inter alia, involving substantial questions of law. This tribunal functioned only for six years and then a feeling gained ground that the tribunal took an unduly long time to dispose of the appeals, and unnecessary expenses were involved as important matters would in any case go to the Supreme Court under Art. 136 of the Constitution. Therefore, the tribunal was abolished in 1956. The tribunal did act as a corrective to decisions of industrial tribunals and its hasty abolition in 1956 removed the restraining influence over the decisions of industrial tribunals and created a

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vacuum. The vacuum has, however, been filled, tosome extent, by the Supreme Court under Art. 136.1 Though the Court could hear appeals from the central tribunal as well, yet the fact remains that it was extremely reluctant to do so. With its abolition, the Court has liberally heard appeals from the labour tribunals. A large number of appeals have come before the Court after the abolition of the Labour Appellate Tribunal,2 and it has emerged as a major policy-making and law-making organ in the area of labour law. Though the machinery of industrial adjudication has substantial achievements to its credit, yet it suffers from some handicaps, like delay and expense, which affect industrial peace and harmony. The labour courts, industrial tribunals all enjoy the power of compulsory adjudication and their awards enjoy finality as the Industrial Disputes Act does not envisage any appeal to any body from the decisions of these fora. With the pace of industrialisation, numerous labour courts and industrial courts are set up in the country. The result is that conflicting awards are made by these bodies. Recourse to the writ jurisdiction of the High Courts may bring in some uniformity at the State level but the High Courts themselves differ inter se. This situation creates difficulties for enterprises spreading over several states which, thus, becomes subject to the jurisdiction of several High Courts. To some extent, uniformity in labour law has been achieved by recourse to the Supreme Court's jurisdiction under Art. 136. The role of the Supreme Court as the ultimate arbiter in labour matters has been adversely commented upon in some quarters.3 The Law Commission expressed concern at the large number of labour appeals to the Supreme Court in so far as its natural effect is to clog the work of the Court, and more importantly, the labour matters are being thrust upon a court which has not the means or material for adequately informing itself about different aspects of the questions which arise in these appeals and, therefore, finds it difficult to do adequate justice. Lately, vioces have been raised in favour of creating the Central Appellate Labour Tribunal again. About the Central Labour Appellate Tribunal, the Supreme Court has said :4 "If it had continued by now the Labour Jurisprudence would have developed perhaps on much more satisfactory lines than what it is to-day. There is a great need to-day to revive and to bring into existence an All-India Labour Appellate Tribunal."

In 1969, the National Labour Commission suggested a complete overhaul of the industrial relations machinery so as to make it more effective. On the procedural side the objections against the labour tribunals have been that their procedure is dilatory and expensive and tends to prolong disputes. The Commission proposed a complete new machinery for settlement of labour disputes in which emphasis will gradually shift from adjudication to collective bargaining by the parties concerned.5 Recently the Law Commission in its 122nd Report has also suggested the setting up of a mechanism for bringing about uniformity in industrial relations. There is need for a body having an all India perspective and jurisdiction below the Supreme Court so that industrial strife can be minimized in the country.6 The decisions of this tribunal will be subject to appeal to the Supreme Court under Art. 136, but subject to no other court including the High Courts. This tribunal is to be set up under Arts. 323B(2)(c) and 323B(3)(d). The Law Commission has also suggested the setting up of Industrial Relations Commission, both at the Central and State levels and having both original and appellate jurisdiction. Each commission will have lawyers, trade unionists and employees as members. The jurisdiction of the High Courts will be excluded; appeals from the State Commission will lie to the Central Commission but appeals from the Central Commission will go to the Supreme Court by way of Art. 136. Labour Courts will remain, but the functions of industrial tribunals will vest in the State Commissions and those of the national industrial tribunals in the Central Commission.7 The suggestion for establishing labour commissions emanates from the feeling that the industrial tribunals are presently manned primarily by law men whereas adjudication of labour disputes requires besides lawyers other social scientists as well. (v) Motor Transport The regulation of road transport has been a major activity of the State Governments since the independence. The prevailing statute in this area is the Motor Vehicles Act, 1988 which has replaced the 1939 Act. The

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statute provides for licensing of drivers, conductors, transport vehicles, etc., and creates administrative authorities for these and various other purposes.8 Here may be examined the structure and procedures of adjudicatory bodies involved in two major areas of motor transport, viz., (i) (ii)

settlement of claims in cases of accident and licensing of transport vehicles.

(1) Claims Tribunals The Tribunal was created by Ss. 100-100E of the Motor Vehicles Act, 1939. Now, Sections 165 to 176 of the Motor Vehicles Act, 1988,9 deal with the composition, powers and procedure of the Claims Tribunals. The purpose of establishing these tribunals was to enable claimants to have a cheap and quick remedy because adjudication of these claims in a civil court was a protracted and dilatory matter. Also, the claimant would be required to pay court-fees on an ad valorem basis to pursue his claim in a court. These difficulties were sought to be avoided by introducing claims tribunals. The introduction of these tribunals envisaged no change in substantive law, only a change of forum and procedural law.10 A State Government may constitute one or more Motor Accidents Claims Tribunals for the purpose of adjudicating upon the claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. S. 168 empowers the Tribunal to award compensation "which appears to it to be just". The strength of such a tribunal is to be determined by the State Government. Where more than one person is appointed to the Tribunal, one of them must be appointed as the chairman. The Act lays down the qualifications of persons who may be appointed as the members of the Tribunal. They should be sitting or retired High Court Judges, or qualified to be so, or sitting or retired district judges. As a matter of practice, these Tribunals are generally one-member Tribunals and generally the district and sessions judges or the additional district and sessions judges are designated as the Claims Tribunals under the Act by notification. As regards the procedure, an application for compensation is to be made by the person who sustains injuries or by his legal representative or by his agent, or by the owner of the property, within six months of the occurrence of the accident, but the tribunal may extend the period up to twelve months on being satisfied that the applicant was prevented by sufficient cause from making the application in time.11 The application is to be in such form, and is to contain such particulars, as may be prescribed. The Tribunal makes an inquiry, gives an opportunity of being heard to the parties concerned (including the insurer) and makes an award determining the amount of compensation which appears to it to be just, and also specifies the person to whom it is payable. Subject to the rules framed in this connection, the tribunal has power to follow such summary procedure as it thinks fit in making the inquiry. Except to the extent to which the provisions of the Civil Procedure Code have been made applicable, the matter of procedure has been left to the discretion of the Tribunal subject to any rules framed by the State Government under S. 176. The Tribunal has all the powers of a civil court in respect of administering oath, enforcing the attendance of witnesses, compelling discovery and production of documents, etc., and is deemed to be a civil court within the meaning of S. 195 and Ch. XXVI of the Code of Criminal Procedure, 1973.12 The tribunal has power to choose one or more persons having special knowledge of any matter relevant to the enquiry to assist it in adjudicating upon a claim for compensation. Under S. 168(3), "the person who is required to pay any amount", in terms of the tribunal's award "shall, within 30 days of the date of announcing the award by the Claims Tribunal deposit the entire amount in such manner as the Claims Tribunal may direct." An appeal against the award of the Tribunal may be preferred to the High Court within 90 days from the date of the award. For sufficient cause, the High Court may extend the time limit.13 However, if the amount involved is less than Rs. 10,000, no appeal against the award can be made. No civil court has any jurisdiction in a matter which comes within the jurisdiction of the Tribunal. Thus, once a Claims Tribunal is established, the jurisdiction of civil courts to entertain a suit for damages for a motor accident is barred. The Claims Tribunal is constituted under the Motor Vehicles Act to discharge the duties which otherwise would have fallen on ordinary civil courts. Although the decision of the Claims Tribunal is termed as an award, it does not mean that it is an 'arbitration' tribunal. It is a special Tribunal functioning14 under the law. The proceedings before the Tribunal have been characterised as being in the nature of a suit. It falls within

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the scope of the word 'suit' used in S. Sections 6 of the Limitation Act.15 It would appear from the above description that the Tribunal is more or less independent of the Administration. The Tribunal has all the attributes of a court and has to decide the claim on the basis of legal evidence in accordance with law by a definitive judgment.16 As the Civil Procedure Code applies to it, a pauper can institute a case in the Tribunal under O. XXXIII, CPC.17 It has been held that the Claims Tribunal has inherent jurisdiction to enforce its award according to the provisions of CPC as applicable to execution of orders and decrees passed by a civil court.18 The Claims Tribunal has been held to be a civil court subordinate to the High Court for the purposes of S. 115, CPC and, therefore, the tribunal's decision is amenable to the High Court's revisional jurisdiction .19 (2) Licensing of Transport Vehicles : Authorities and Procedure The Motor Vehicles Act, 1988, provides that no owner of a transport vehicle shall use the vehicle in any public place save in accordance with a permit granted by a Regional Transport Authority or State Transport Authority. Each State is to constitute a State Transport Authority and Regional Transport Authorities. Each of these authorities consists of a chairman who is a person having judicial experience, and not more than four members, officials and non-officials, in case of State Authority, and two in case of a Regional Authority, as the State Government may think fit to appoint. It is however permissible for the State Government to constitute any of these Authorities with only one member who shall be an official having judicial experience. No person having a financial interest in the transport undertaking can be appointed as a member of any Authority. The State Government is empowered to issue, by notification in the official gazette, directions to these Authorities for certain purposes. Before issue of any directions, the State Government is required to publish the draft thereof, and consider any objections raised by the interests affected, after giving them an opportunity of being heard.20 An application for a permit for a transport vehicle has to be made to the Regional Transport Authority (R.T.A.). Transport vehicles, it may be noted, are of different types--private and public carriers, stage and contract carriages, goods carriage etc. It will be sufficient for the present purposes to describe briefly the administrative process in the matter of granting and revocation of a stage carriage permit. The application for such a permit must contain the particulars prescribed. The Act lays down the matters which the R.T.A. has to keep in view in granting the permit. When an application for a permit is refused, the R.T.A. is required to give the reasons in writing for the refusal, and also an opportunity of being heard to the applicant concerned. However, the Andhra Pradesh High Court has ruled recently21 that existing operators (i.e. those who already have permits) have no legal right to file representations before the R.T.A. while considering applications for grant of new permits, nor can they claim any right to be heard by the R.T.A. nor is it bound to give a hearing to them. They may send whatever representations they want, and the R.T.A. may or may not consider the same, but the operators cannot claim any legal right to do so. The permit can be suspended or cancelled by the transport authority which had granted the permit in question on the grounds specified in the Act. It is necessary to give a reasonable opportunity to furnish his explanation to the permit holder concerned before any such action is taken by the Authority. It is also necessary to give the reasons for cancellation or suspension of the licence. The Act also provides for the establishment of a State Transport Appellate Tribunal for hearing appeals from the orders of the S.T.A. and the R.T.A. The Tribunal is to consist of a whole-time judicial officer not below the rank of a District Judge, or one who is qualified to be a High Court Judge. A person who feels aggrieved by the refusal of an Authority to grant him a permit, or by an order of revocation or suspension of the permit may, within the prescribed time and in the prescribed manner, appeal to the State Transport Appellate Tribunal which shall give such person and the concerned Authority an opportunity of being heard. The decision of the Tribunal has been declared to be final.22 The Tribunal has also been given power to revise any order of the State or Regional Transport Authority. On an application to it within thirty days of the passing of an order by any such authority, when no appeal lies to the Tribunal from such an order, the Tribunal can call for the record of the case. If it appears to the Tribunal that the order is "improper or illegal", it may pass such order in relation to the case as it deems fit. Every Tribunal order is final. The Tribunal may entertain an application questioning an order even after the expiry of thirty days if the Tribunal is satisfied that the

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applicant was prevented "by good and sufficient" cause from making the application in time. The Tribunal cannot pass an order prejudicial to any person without giving him a reasonable opportunity of being heard. No civil court has any jurisdiction to entertain any question regarding grant of a permit under the Motor Vehicles Act. A civil court is not to issue any injunction in respect of any action taken or to be taken by the duly constituted authorities under the Act.23 In Hira Singh v. State Transport (Appellate) Tribunal, 24 the Allahabad High Court quashed an order of the Appellate Tribunal inter alia on the ground that the Tribunal acts as a quasi-judicial body while deciding an appeal from the regional transport authority, and, therefore, the Tribunal should apply its own independent judgment and could not dispose of the matter by accepting wholesale administrative directions issued by the Inter-State Transport Commission. This case vindicates the proposition, already referred to earlier,25 that directions should not be issued to quasi-judicial bodies so as to affect their judgment in deciding matters falling within their purview. The regional transport authorities in Punjab kept on issuing temporary permits to ply stage carriages on routes even though there was need for granting regular permits. The reason given was that the State Government had not finalised its transport policy and so regular permits could not be issued. The Supreme Court criticised the practice in Jagjit Bus Service v. State Transport Commissioner, 26 and emphasized that the transport authorities being statutory authorities must discharge the duties imposed on them by the Act without waiting for any policy to he announced by the State Government. The practice of issuing temporary permits was characterised as "irregular" and against the "language and spirit" of S. 62 of the M.V.A., 1939. "The fact that the State of Punjab is thinking of finalising a new transport policy can have no bearing on the question in issue." The Supreme Court has emphasized in Mudaliar27 that the transport tribunals function quasi-judicially and "this imports some imperatives. You must tell the man whose fundamental right you propose to negative the materials you may use in your decision. You must act on relevant considerations, properly before you, not on rumour or hearsay, ex cathedra assertions or inscrutable hunch."28 In Bishwanath Nag v. State of Bihar, 29 in exercise of power under Section 43-A of the Motor Vehicles Act, 1939, the State Government issued a direction to the regional transport authorities that a family consisting of husband, wife and their minor children will not be allowed more than one stage carriage permit. The East Bihar Regional Transport Authority refused a permit to the petitioner on the ground that he had already three permits. On appeal, the State Transport Appellate Tribunal did not agree with the ground given by the regional authority, but refused to issue permit to the petitioner on the basis of the direction of the State Government. The High Court quashed the order of the tribunal on the ground that the power to issue permit exercised by the authority being a quasi-judicial power, the State Government has no power to issue directions to control the discretion of the authority. The Motor Vehicles Act, 1939, made provisions for the constitution of an Interstate Transport Commission consisting of a Chairman and not less than two other members, for discharging of functions in connection with the licensing of interstate vehicles. The Commission is appointed by the Central Government.30 The new Act of 1988 also incorporates provisions for this purpose. (vi) Railways (1) Railway Rates Tribunal The Railway Rates Tribunal was established in 1948 under the Indian Railways Act, 1890. The Railways Act, 1989, has repealed the Act of 1890. The necessary provisions for this tribunal are now made by Ss. 33 to 48 of the Act of 1989.31 Before the establishment of this tribunal, the action of the government of India in the matter of regulation of rates and charges charged by the Railways for carriage of goods was largely influenced by the laissez faire philosophy. S. Sections 70 of the Railways Act prohibits a railway administration from making or giving any undue or unreasonable preference or advantage to, or in favour of, any particular person or any particular description of traffic in the carriage of goods. The Tribunal has power to hear complaints against the Railway Administration that it is charging unreasonable rates for carrying a commodity between two stations, or that the Railway Administration is giving any undue or unreasonable preference or advantage to any person, or any particular description of traffic in the carriage of goods, or that the railway administration is levying any other charge which is unreasonable. Thus, the Tribunal is the

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competent forum to decide a dispute whether the concession granted by the Railway Authorities in the matter of freight rates to certain mills is discriminatory or not.32 The members of the Tribunal are appointed by the Central Government, and they hold office for such period, not exceeding five years, as may be prescribed in the rules, and none of them is eligible for reappointment. The composition of the tribunal constitutes a good example of blending of legal, commercial and railway talents. Thus, the Tribunal consists of a chairman who "is, or has been, a Judge of Supreme Court or of a High Court" and of the two members, one must be a person who, "in the opinion of the Government, has special knowledge of commercial, industrial or economic conditions of the Central Government." The other member must be one who, "in the opinion of the Central Government, has special knowledege and experience of the commercial working of the railways." The terms and conditions of their appointment are to be such as may be prescribed by the Central Government. According to a study by the Indian Law Institute : 33"It is believed that the Ministry of Railways maintains standing panels for the potential appointees on the basis of merit but beyond this it is not known what process is followed in preparing these panels. The chairman and members are normally appointed for three years although the statute permits appointment up to five years. As stated before, there is an ineligibility clause in the Act which bars reappointment of the chairman and members after the expiry of their term." The Tribunal may, with the previous approval of the Central Government, appoint such officers and employees as it considers necessary for the efficient discharge of its functions. The Indian Evidence Act does not apply to the Tribunal.34 The Tribunal may, with the previous approval of the Central Government, make regulations consistent with the Act and rules generally to regulate its procedure. Such regulations may provide inter alia for award of costs by the tribunal, the scale of fees to be charged by it, etc. A party is entitled to be heard by the Tribunal in person or through an authorised representative including a legal practitioner. The Railway Administration may after one year apply to the Tribunal for revision of its order. It has ample power of investigation and to enforce the attendance of witnesses. It has the powers of a civil court under the Code of Civil Procedure, 1908, for purposes of taking evidence on oath, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for examination of witnesses and of review. Decisions are made by a majority of the members. The decisions of the Tribunal are to be executed by a civil court as if they were a decree of the court.35 No suit can be instituted in respect of any matter which the Tribunal is empowered to deal with, or decide. The Tribunal has power to pass such interim and final orders as the circumstances may require, including orders for the payment of costs. The Tribunal is to present an annual report to the Central Government as regards its proceedings. Since the Tribunal is presided over by a Judge of the Supreme Court or of a High Court, independence of the Tribunal from the Railway Administration is assured. This aspect is extremely significant as the Tribunal adjudicates upon disputes between an individual and the nationalised transport system. The Tribunal is deemed to be a civil court for the purposes of S. 195 and Ch. XXXV of the CrPC, 1973.36 Delhi Cloth & Gen. Mills v. Union of India 37 illustrates the type of problems which come before the Tribunal for adjudication. The company having its fertilizer plant in Rajasthan secured naptha, main raw material, from the Koyali Refinery of the Indian Oil Corporation. The company filed a complaint before the Railway Rates Tribunal that the Railways were charging an unreasonable rate for carrying naptha and were showing undue preference or advantage in respect of other traffic. S. Sections 28 of the Railways Act, 1890 prohibits the Railway Administration from giving any undue or unreasonable prejudice or advantage to any person, or railway administration, or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Under S. 41(1)(b), the Railways cannot charge unreasonable rate for carrying any commodity between two stations. However, the Tribunal dismissed the complaint of the company in the instant case, as it failed to substantiate its case. On appeal, the Supreme Court held the tribunal decision perfectly justified. In Union of India v. W.C. Paper Mills, 38 a company filed a complaint before the Tribunal that the rates being charged by the railways for carrying goods on a branch line were "unjust, unreasonable and discriminatory". The Tribunal substantially upheld the complaint.39 (2) Railway Claims Tribunal

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After the enactment of Arts. 323A and 323B,40 there are clear signs of proliferation of the tribunal system in India. A number of new tribunals have been created, one of which is the Railway Claims Tribunal. The Indian Railways Act, 1890,41 lays down, inter alia, the liability of the Railway Administration for loss, destruction, damage, deterioration or non-delivery of goods entrusted to it for carriage as also for the death, injury etc. to passengers in a railway accident. Before 1987, after a major train accident, for settling claims for compensation for injury or death of a passenger because of a railway accident, the Central Government used to appoint in consultation with the concerned State Government, claims commissioners on an ad hoc basis. Provisions were made for the purpose in Ss. 82A to 82J of the Railway Act, 1890. Under the rules made under the Act, only a person qualified to be a Judge of a High Court, or a sitting or retired district judge or district magistrate, could be appointed as a claims commissioner. An appeal from his decision lay to the High Court.42 Now, Parliament has enacted the Railway Claims Tribunal Act, 1987, to establish a Railway Claims Tribunal.43 The Tribunal has jurisdiction, powers and authority as were execrable by any civil court or a claims commissioner-(a)

(b)

relating to the responsibility of the railway administration as carriers under the railways in respect of claims for(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to railway for carriage; (ii) compensation payable under S. Sections 82A of the Railways Act44; in respect of claims for refund of fares, or freight paid for carriage of goods.

Lawyers can appear before the tribunal. Appeals from the tribunal lie to the High Court having jurisdiction over the place where the Bench is located. The Tribunal is composed of one Chairman, four Vice-Chairmen and a number of judicial members and technical members. A High Court Judge (sitting or retired), or a person who has been Vice-Chairman of the tribunal for two years, is competent to be appointed as the Chairman. The Vice-Chairman can belong to any of the following categories : a sitting or a retired High Court Judge; a retired member of the Indian Legal Service holding at least Grade I post in that service; a person who has held for at least five years a civil judicial post carrying a scale of pay not less than that of a Joint Secretary to the Government of India, who has held for at least five years a post under the Railway Administration carrying a scale of pay not less than that of a Joint Secretary to the Government of India; who has held for at least five years a post under the Railway Administration carrying a scale of pay not less than that of a Joint Secretary to the Government of India; who has been a technical or Judicial member for at least three years. A judicial member is a person with legal experience and comes from the following three categories : a sitting or retired High Court Judge; a member of the Indian Legal Service of at least three years' standing and holding a Grade I post; one holding a civil judicial post for at least three years carrying a scale of pay not less than that of a Joint Secretary to the Government of India. A technical member is one who has held a post in Railway Administration carrying a scale of pay not less that of a Joint Secretary, and has adequate knowledge of rules and procedure in claims and commercial matters relating to railways. The President appoints all these persons and the Chairman is appointed in consultation with the Chief Justice of India. The term of office of each is five years or till he attains the age of 65 years in case of the chairman, and 62 years in case of others, whichever is earlier. He can be removed from his office by the President on the ground of proved misbehaviour or incapacity after an inquiry by a Supreme Court Judge. The salaries and allowances payable to the Chairman, Vice-Chairman and the members of the Tribunal cannot be varied to his disadvantage after his appointment. A Bench of the Tribunal is to consist of one judicial member and one technical member. The Tribunal has power to summon witnesses and documents, to regulate its own procedure, and also to review its own decisions.45 The Supreme Court has ruled recently that when an indigent person who does not have the means to pay the prescribed fees to file his claim for compensation approaches the Tribunal, it should follow the procedure laid down in O. XXIII, CPC to entertain his claim. The Court has ruled : "When an indigent person approaches the Tribunal for compensation for the wrong done to him, the Tribunal cannot refuse to exercise jurisdiction merely because he does not have the means to pay the fee".46 Under S. 15 of the Act, jurisdiction of civil court or any other authority is barred in respect of the claims falling within the jurisdiction of the Tribunal. This Tribunal is going to be a big affair when fully operational. It is to have 19 benches in the following 17 cities : Delhi, Jaipur, Ahmedabad, Bombay, Bangalore, Madras, Ernakulam, Secunderabad, Nagpur, Bhopal, Bhubaneswar, Calcutta, Guwahati, Patna, Gorakhpur, Lucknow and Chandigarh. The underlying idea to set

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up the Tribunal is to expedite compensation claims of railway accident victims and refunds in commercial transactions. Before setting up the tribunal, nearly 60,000 suits claiming compensation from the railways were pending in civil courts across the country. Railways distribute nearly 42 crore rupees every year. Before the Act of 1987, all claims were settled by an ad hoc claims commissioner. He also dealt with commercial claims. In case of disputes over the settlement of claims, claimants approached the civil courts, where suits were delayed inordinately due to huge backlog. The Tribunal will provide a special forum to settle claims regarding goods lost in transit and other commercial transactions. A claim for short delivery of goods can be filed before this tribunal.47 The hope is that through the Tribunal a claim against the railways will be settled in six months. The Indian Railways Act provides for compensation in case of death, injury or loss of limb suffered by a passenger travelling by a train, but the Act contains no definition of "accident". This allows a loophole to the railways to escape penalties, even though there is a clause referring to the liability of the organisation in case of accidents, and the maximum compensation for death has now been raised to Rs. one lakh. Nearly over 400 million passengers travel by trains every year. It is hoped that the setting up of the Tribunal will result in speedy justice to the victims of rail accidents. The Bombay High Court has ruled recently that the Tribunal's jurisdiction extends only to such claims for compensation for loss of life or personal injury to a passenger as arise because of an accident to a train carrying passengers. Any claim for compensation for loss of life or personal injury to a passenger arising in any other manner lies outside the jurisdiction of the Tribunal and a suit for the same may be filed in a civil court.48 In the instant case, a passenger was killed by being caught between a moving train and the platform. The High Court ruled that the question of compensation in such a case would not fall within the jurisdiction of the Railway Claims Tribunal but would fall within the jurisdiction of the Civil Court. In status, the Tribunal can be regarded as being subordinate to the High Court as the appeals from the Tribunal are to be heard by the High Court. It is hoped that the Tribunal will expedite settlement of claims against the Railways and thus provide much relief to the consumers of railway services. (vii) Electricity (1) W.B. Electricity Regulatory Commission W.B. Electricity Regulatory Commission constituted under Section 17 of the Electricity Regulatory Commission Act, 1998 is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. Therefore, the Supreme Court thought that it would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. From Section 4 of the 1998 Act that the Central Electricity Regulatory Commission which has a judicial member as also a number of other members having varied qualifications is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission. The Apex Court observed that neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, the Court recommended that the appellate power against an order of the State Commission under the 1998 Act should be conferred either on the Central Electricity Regulatory Commission or on a similar body. The Court noticed that under the Telecom Regulatory Authority of India Act, 1997 in Chapter IV, a similar provisions is made for an appeal to a Special Appellate Tribunal and thereafter a further appeal to the Supreme Court on questions of law only. A similar appellate provisions may be considered to make the relief of appeal more effective. (Para 102). The Commission is bound to take into consideration the principles found in Sections 57 and 57-A and Schedule VI to the Electricity (Supply) Act, 1948, to the extent it has become applicable. While so applying these principles of the 1948 Act, including the Sixth Schedule, it is open to the Commission to weigh these principles with other requirements which it has incorporated in the form of regulations and suitably apply the same. In this process, if it chooses to place more reliance on one or more of other principles than those found in Schedule VI to the 1948 Act, then it is open to the commission to do so and in such an event it is not necessary for the Commission to again invoke Section 30 of the 1998 Act because the requirement of invoking Section 30 arises only at stage of framing of regulations, thereafter, it is for the Commission to consider the various principles which it has incorporated in its regulations and

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then apply the same, depending upon the facts of the cases with which the Commission is concerned. There is no doubt that in this process if the Commission commits any error either contrary to law or contrary to established facts in applying these principles, then of course it is open to the High Court as an appellate authority under Section 27 to interfere and rectify the same.49 (para 66) (2) U.P. State Electricity Board The State Govt. decided to absorb the employees of the wound-up Corporation/ Undertaking in other Department/Undertakings of the Govt. Pursuant to the said policy, the Govt. asked the U.P. State Electricity Board, an autonomous body, to appoint a retrenched employee of a Corporation, as an Electrician. The Board took the stand before the High Court that it being an autonomous body could not be directed to appoint/absorb the said employee whereat the High Court made certain pungent/harsh observations against the officials of the Board and in particular against its Chairman and Secretary. The Apex Court upheld the stand of Board and held that the Govt. had no authority to give directions to the Board to appoint/absorb the said retrenched employee. It was observed that making stringent observations/strictures must be avoided by the Courts save in exceptional circumstances.50 (viii) Copyright The Copyright Act, 1957, sets up two adjudicative bodies to settle problems pertaining to copyright, viz., Registrar of Copyrights, and the Copyright Board. The Registrar is primarily an administrator who is appointed by the Central Government. He is in charge of the Copyright Office. He has power to adjudicate upon several matters pertaining to copyrighs.51 Appeals from his decisions go to the Board. The Copyright Board has a Chairman and between 2 to 8 members. All of them are appointed by the Central Government. Their tenure and terms and conditions of office are to be prescribed through the rules. The Chairman is to be a person who is, or has been, a Judge of the Supreme Court or a High Court or who is qualified to be appointed as a High Court Judge. The Registrar is to act as the Secretary of the Board. The Board can regulate its own procedure subject to the rules made under the Copyright Act. The Board may function through Benches constituted by the Chairman. A bench is to consist of at least three members. Decisions are to be by majority in case of difference of opinion among the members of a bench. The Board is deemed to be a civil court for the purpose of S s. 345 and 346, CrPC, 1973. All proceedings before the Board are deemed to be judicial proceedings within the meaning of Ss. 193 and 228, IPC.52 The Board has both appellate and original adjudicatory powers. The Board hears appeals from the Registrar's decisions. No further appeal is permitted in such matters. Then, the Board itself has power to decide certain matters pertaining to copyright and appeals from such original decisions of the Board (barring decisions under S. 6) lie to the High Court. Both the Registrar and the Board have powers to summon witnesses, require discovery and production of any document, etc. (ix) Foreign Exchange Regulation Appellate Board The Foreign Exchange Regulation Act, 1973, imposes a pervasive system of control on transactions in foreign exchange. The Act establishes a Directorate of Enforcement.53 S. 50 prescribes the levy of a penalty if any person contravenes any provision of the Act. The adjudicating officer has power, if he thinks fit, to direct the confiscation of any money, security or property in respect of which the contravention has taken place. Under the Foreign Exchange Regulation Act, 1973, the initial adjudication is made by an official known as the Director of Enforcement. His function is to adjudge upon the penalty to be imposed under the Act for the violation of the provisions of the Act and the rules made thereunder. While adjudicating the Director has to give an opportunity of being heard to the concerned party which includes a right to appear in person, adduce evidence, examine and cross-examine witnesses. In Fentandez,54 an inquiry by the Director was quashed because of his failure to afford to the accused an opportunity to cross-examine those persons who had given statements against him and this rendered the inquiry unfair and invalid. The Director has power to summon witnesses to give evidence or to produce any document or any other material.

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To hear appeals from the orders of the Director, the Act makes provision for the constitution of an Appellate Board by the Central Government.55 The Board is to consist of a Chairman and a maximum number of four other members appointed by the Central Government. The Act prescribes no qualifications for appointment as members of the Board, and so the matter lies within the discretion of the government which can appoint any person whom it thinks fit for the assignment. But for the office of the Chairman, the following qualifications are prescribed : holding of a civil judicial post for at least ten years, or membership of the Central Legal Service (not below Grade I) for at least three years, or practice as an advocate for at least ten years. In actual practice, the Board consists of the Additional Secretary, Ministry of Law, as Chairman (Full-time), and two Joint Secretaries, Ministry of Finance, as members (part-time). The Board thus consists entirely of civil servants and cannot be characterised as a tribunal according to the usage of the term in this Chapter as a body which is autonomous and distinct from the concerned Administrative Department.56 It may however be noted that for the purposes of Art. 136, the Board is regarded as a tribunal.57 The decision of the Appellate Board is final except that an appeal lies to the High Court on questions of law. Contravention of the orders of the Director or the Board has been made penal. It is hightime that the composition of the Board is changed so that it may become a tribunal in the real sense of the term, as the main task of the Board is to adjudicate upon matters of infringement of the Foreign Exchange Regulation Act, and not upon any matter of government policy. (1) Enforcement Directorate The proceedings under Section 23(1)(a) of he Foreign Exchange Regulation Act, 1947 are 'adjudicatory' in nature and character and are not "criminal proceedings". The officers of the Enforcement Directorate and other administrative authorities are expressly empowered by the Act to 'adjudicate' only. Indeed they have to act 'judicially' and follow the rules of natural justice to the extent applicable but they are not 'Judges' of "Criminal Courts" trying an 'accused' for commission of an offence, as understood in the general context. They perform quasi-judicial functions and do not act as 'Courts' but only as 'administrators' and 'adjudicators'. In the proceedings before them, they do not try 'an accused' for commission of "any crime" (not merely an offence) but determine the liability of the contravenor for the breach of his 'obligations' imposed under the Act. They impose 'penalty' for the breach of "civil obligations" laid down under the Act and not impose any 'sentence' for the commission of an offence. When 'penalty' is imposed by an adjudicating officer, it is done so in "adjudicatory proceedings" and not by way of fine as a result of 'prosecution' of an 'accused' for commission of an 'offence' in a criminal Court. Hence, mens rea is not an essential ingredient under Section 23(1)(a) of FERA, 1947.58 (x) Court of Survey S s. 383 to 387 of the Merchant Shipping Act, 1958, makes provision for the constitution of a Court of Survey to hear appeals from the following actions of the surveyor authorised to inspect a ship : (i) statements in his report of his inspection with which the owner of the ship does not agree; (ii) notice given by him of any defect in a ship; (iii) refusal to give any certificate under the statute. The Court of Survey is to consist of a judge sitting with two assessors. A district judge, judge of a court of small causes, presidency magistrate, a first class magistrate, or a person considered fit to be appointed, may be appointed as the judge of the Court of Survey by the Central Government. Only persons possessing nautical, engineering or other special skill or experience are qualified to be appointed as assessors. One assessor is appointed by the government and the other by the judge. The hearing of every case is to be done in open court. Both the parties, namely, the owner and the representative of the Central Government are entitled to attend any inspection or survey of the ship. The Central Government may through rules make provisions for different matters like the procedure of the court, amount of application fees, amount of costs, etc. The court is not authorised to make a binding order but the statute merely states that the judge shall report the proceedings to the Central Government. Each assessor is required to sign the report or give reasons for his dissent.

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(xi) Economic Regulation With the emergence of the concept of a socialist pattern of society to be established in India after independence, government regulation of trade and commerce became the order of the day which led to the enactment of a large volume of regulatory legislation and conferment of large powers on the Administration. A number of quasi-judicial bodies also came into existence for the purpose of adjudicating upon matters arising in the economic area. Only a few salient examples of such bodies can be given here. (1) The Industries (Development and Regulation) Act, 1951 The Industries (Development and Regulation) Act, 1951 is a comprehensive piece of legislation giving wide powers to the Central Government for controlling the development of industries and regulating their various aspects. To take one example of adjudication under the statute, S. 10 provides for registration of industrial undertakings with the Central Government. S. 10-A empowers the Central Government to cancel the registration in some cases. For taking such an action, it is necessary for the Central Government to give an opportunity of being heard to the owner of the concerned undertaking. Besides, innumerable statutory provisions introduce licensing of some economic or commercial activities. Cancellation of a licence involves an adjudicatory function as the licensing authority has to adjudge whether the licensee has infringed any condition of the licence or has otherwise become unfit to hold the licence.59 Provisions for government take-over of an industrial undertaking in certain circumstances have already been discussed earlier.60 (2) Company Law Board The Indian Companies Act, 1956, is a mammoth piece of legislation which confers vast supervisory and regulatory powers on the Central Government with a view to making the company law and practice conform to the new socio-economic policies of the country and to protect the shareholders against fraud and misuse of powers by the directors of companies. In 1963, the statute had made provisions for setting up a Tribunal to exercise and discharge the following functions : enquiry into cases against managerial personnel involving fraud, misfeasance and other such malpractices and irregularities in company management, and also to exercise some of the powers and functions which under the Act were conferred on the courts. The Tribunal was to consist of a chairman who was a sitting or a retired High Court judge or one qualified to be appointed as such, and such other members as the government thought fit to appoint. The purpose in setting up the Tribunal was to judicialize the exercise of governmental powers to remove managerial personnel of the companies. But the Tribunal was not given a fair trial and was abolished within a short period of its being set up on the ground that it delayed matters.61 Instead, now, the Board of Company Law Administration, referred to as the Company Law Board, has been set up and given a number of adjudicatory powers. The Board may be regarded as a specialized body charged with the responsibility to act as the watchdog over corporate process. S. Sections 10E of the Companies Act authorises the Central Government to constitute the Board.62 The Board consists of so many members, not exceeding nine, as the Central Government deems fit to appoint. One of its members is appointed as the Chairman of the Board by the Central Government. The members of the Board possess such qualifications and experience as may be prescribed. The Act is thus silent as regards the qualifications of the members of the Board and has left the matter to be prescribed by rules. No rules were made for several years after the Board was established in 1988. In 1992, a writ petition was filed in the Supreme Court under Art. 32 making a grievance of the non-prescription of qualifications of the Board's members. The Court adjourned the writ petition from time to time to enable the government to finalise the rules. At last, in 1993, the Company Law Board (qualifications, Experience and other Conditions of Service of Members) Rules, 1993, were promulgated. These rules were amended in 1994. It is possible under these rules to appoint law men as judicial members of the Board.63 The Board may constitute one or more benches of its members to exercise its functions. An act of a bench is regarded as an act of the Board. The Board is to exercise such powers and functions--(1) as may be conferred on it under the Companies Act, or under any other law, and (2) the powers and functions of the Central Government as may be conferred on it by the Government.64 As most of the powers conferred on the Board are of an adjudicatory nature, power has been conferred on every bench to summon witnesses, inspect documents, examine witnesses on oath, etc. Each bench is deemed to be a civil court for the purposes of S. 195 and Chapter XXI of the CrPC, 1973 and every proceeding before the bench is deemed to

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be a judicial proceeding under Ss. 193, 228 and 196, IPC.65 The Board is required to act according to the principles of natural justice and, in its discretion,66 it can regulate its own procedure. Any person aggrieved by any decision or order of the Board may appeal to the High Court on any question of law arising out of such order. It means that no appeal lies from the Board on questions of fact and that the Board's decision is final on facts.67 The Supreme Court has ruled recently that appeal from the decision of the Board lies to the High Court which has jurisdiction in relation to the place at which the registered office of the company concerned is situated.68 The Company Law Board is not a substitute of the High Court. This becomes clear from the fact that appeals from the Board go to the High Court concerned. A High Court has power to issue writs against the Board under Art. 226 of the Constitution.69 The underlying purpose of the above-mentioned provisions is to constitute a quasi-judicial body which is free from government control and which can take decisions uninfluenced by administrative considerations. (3) The Essential Commodities Act, 1955 Under the rules and orders made in pursuance of the Essential Commodities Act, 1955, a vast administrative apparatus has come into existence to regulate production, storage, sale, movement, price etc., of essential commodities. In the case of some commodities, the process of cancellation of a producer's licence has been somewhat judicialized. For instance, under the Jute Textiles (Control) Order, 1956, the Jute Controller can cancel a producer's licence for breach of any of its conditions; the licensee has a right of being heard; the Controller's order is to be in writing and he has to give a statement of reasons to the licensee for cancelling his licence who can then appeal to the Central Government. The government has to call for full facts from the controller or the aggrieved licensee and take a final decision.70 A number of adjudicatory bodies function under the provisions of the Act or under the innumerable orders issued under the Act. (4) Monopolies and Restrictive Trade Practices Commission An important piece of legislation in the area of economic regulation is the Monopolies and Restrictive Trade Practices Act, 1969. The Act has been enacted to control monopolies, concentration of economic power, restrictive and unfair trade practices. The Act creates two authorities.71 There is the Director-General of Investigation and Registration who is appointed by the Government of India. He has several functions under the Act, viz., to investigate into complaints of monopolistic, restrictive or unfair trade practices, register restrictive trade agreements, make application to the Commission to undertake investigation into restrictive or unfair trade practices. Then there is the Monopolies and Restrictive Trade Practices Commission (MRTP Commission) which consists of a Chairman and two to eight other members, appointed by the Central Government. A person who is, or has been, or is qualified to be, a Supreme Court or a High Court Judge is appointed as the Chairman. Other members of the Commission are persons possessing knowledge or experience of dealing with problems relating to economics, law, commerce, accountancy, public affairs or administration. Thus, the Commission is not purely a legalistic body; it has several other disciplines represented in its membership. A member can hold office for a period not exceeding five years as may be specified by the Government, but is eligible for re-appointment. However, no member is to hold office for more than two terms, i.e. a total period of ten years, or after he has attained the age of 65 years, whichever is earlier. The remuneration and allowances of the Chairman or a member cannot be varied to his disadvantage after his appointment. The Act restricts the power of the government to remove a member before the expiry of his term. Amongst other grounds, such as, insolvency, conviction for an offence involving moral turpitude, or mental or physical incapacity, the two grounds on which a member can be removed are : (i) he has acquired such financial or other interest as is likely 'to affect prejudicially his functions as a member; or (ii) he has abused his position as to render his continuance in office prejudicial to the public interest. Before removing a member on any of these two grounds, the Government has to refer the matter to the Supreme Court who after holding an inquiry into the matter must report to the Government that the member ought to be removed on such grounds. After a member has ceased to hold office, he is debarred for a period of five years to hold any appointment in an undertaking which is subject to the provisions of the Act. These provisions infuse in the Commission autonomy and freedom from government control. Recently, the Commission has been given power to punish for its own contempt.72 The Commission has investigatory, advisory and adjudicatory functions. The Central Government may refer

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to the Commission any matter relating to the concentration of economic power or monopolistic trade practice for investigation and report. The power to make final orders in these matters vests with the Central Government.73 Before the Government makes a final order in the matter of concentration of economic power, it is required to give a reasonable opportunity of being heard to any one interested in the matter.74 An order made by the Government is appealable to the Supreme Court on certain grounds under S. 55 of the Act.75 The Commission can enquire into any restrictive or unfair trade practice on receiving a complaint from any trade or consumers' association, or a consumer, upon a reference made to it by the Central Government or a State Government, or upon an application of the Director-General, or suo motu.76 In respect of any restrictive/unfair trade practice, when a complaint is received from any trade or consumers' association, or a consumer, the Commission may cause a preliminary investigation to be made in the complaint by the Director-General before itself undertaking an enquiry therein. This provision has been made for the purpose of satisfying the Commission that the complaint requires to be inquired into. In case of an unfair trade practice when the Commission receives a complaint thereof from a trade, or consumers' association, the Commission is bound to refer it to the Director-General for a preliminary investigation, before embarking on an inquiry into the complaint. For the purposes of any inquiry, the Commission has powers of a civil court in respect of summoning of witnesses, discovery and production of documents etc. The Commission has powers to grant temporary injunctions when a person or undertaking is carrying on any monopolistic or any restrictive or unfair trade practice which is likely to affect prejudicially public interest or the interest of traders or consumers. The Commission has power to issue a "cease and desist" order.77 The Commission can also grant compensation where loss is caused to any government, trader or consumer as a result of any monopolistic, restrictive, or unfair trade practice carried on by any one. The powers or functions of the Commission may be discharged by Benches formed by the Chairman of the Commission from amongst its members. The decisions of the Commission are made by the majority opinion. As regards prevention of concentration of economic power, as stated above, the Commission has no power to undertake a suo motu enquiry; it becomes active only when a reference is made to it by the Government, and the power to make final orders in this area vests with the Government. In case of a monopolistic trade practice, the Commission can initiate a suo motu enquiry without any reference being made by the government, but the Commission is to send its report to the Central Government which alone can make a final order. The Commission holds its hearings in public unless the Commission decides otherwise on account of the confidential nature of the matter. An order made by the Commission in respect of a restrictive or unfair trade practice is appealable to the Supreme Court under certain circumstances under S. 55 of the Act.78 Under S. 13(2) the Commission is authorised to amend or revoke an order made by it. Restrictive and unfair trade practices are the most important areas of operation for the Commission to-day. The Commission takes cognisance of such practices when indulged in by the public sector enterprises AS well.79 One example of the MRTP Commission's action in the area of restrictive trade practices may be mentioned here. Noida (an undertaking of the U.P. Government) announced a scheme to give flats to the economically weaker sections of the society at any approximate price within two years of the issue of the registration letters. It was complained to the Commission that Noida indulged in several irregularities in implementing the scheme, e.g. it delayed by a year and a half issuing the letters of registration; it charged a sum of over nine thousand rupees as "premium land compounding" though such a levy was no where mentioned in the scheme announced by it; flats were made available at an enhanced price, much more than what was mentioned in the original scheme. Noida had already recovered the full price of the flat within two years stipulated for the construction thereof. The Commission felt that the trade practice of compelling the customers to make additional payment due to delay in construction of flats amounted to manipulation of the conditions of service in such a manner as to impose unjustified costs on the consumer which amounted to a restrictive trade practice within Ss. 2(o) and 10(a)(i) of the MR TP Act. Accordingly, the Commission issued a notice of inquiry against Noida. (5) Board for Industrial and Financial Reconstruction In 1985, Parliament enacted the Sick Industrial Companies (Special Provisions) Act, 1985, with a view to detect sickness in a company and to take timely "preventive, ameliorative, remedial and other measures." The Act applies to the scheduled industries80 other than the industry relating to ships and other vessels

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drawn by power. A sick company is defined as an industrial company (registered for not less than 7 years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth and has also suffered cash losses in such financial year and the financial year immediately preceding such financial year. The Act establishes a Board to be known as the "Board for Industrial and Financial Reconstruction" (BIFR) consisting of a Chairman and between two and fourteen other members, all appointed by the Central Government. These are persons qualified to be High Court Judges or those having special knowledge of, and professional experience of not less than 15 years in science, technology, economic, banking, industry, law, labour matters, industrial and finance, industrial management, industrial reconstruction administration, investment accountancy, marketing or any other matter which may be useful to the Board. The Government may also constitute an Appellate Authority for Industrial and Financial Reconstruction having a Chairman who is or has been a Supreme Court Judge or who is or has been a High Court Judge for at least five years. The Authority is to consist of not more than 3 other members. These are to be persons who are or have been High Court Judges or who are or have been officers not below the rank of a Secretary to the Government of India or who are or have been members of BIFR for not less than 3 years. The term of office of the Chairman and other members of these two bodies is to be fixed by the Central Government, but it cannot exceed five years. However, they are eligible for re-appointment. No person is to hold office after attaining the age of 65 years. The Government can remove a member from office before the expiry of his term on the following grounds : (a) insolvency; (b) conviction of an offence involving moral turpitude; (c) physical or mental incapacity; (d) acquisition of financial or other interest as is likely to affect prejudicially his functions as a member; (e) abuse of his position as to render his continuance in office prejudicial to public interest. However, on grounds (d) or (e), before removing a member, a reference has to be made to the Supreme Court. He will be removed only when the Court reports that he ought to be removed. This introduces some independence in the functioning of the tribunal. The Board of Directors of a sick company is required to refer the matter to BIFR. Others who can also make such a reference are : Central Government, Reserve Bank, State Government, or a public financial institution or a State level Institution or scheduled bank. The Board has to make inquiry to determine whether a company has become sick. If the Board is satisfied that a company has become sick, the Board is to decide whether it is practicable for it to make its net worth positive. Otherwise, the Board directs any operating agency to prepare a scheme for the company which may provide for any one or more of the following measures : (a) (b) (c) (d) (e)

the reconstruction, revival or rehabilitation of the sick industrial company; the proper management of the sick industrial company by change in, or take-over of, the management of the sick industrial company; the amalgamation of the sick company with any other industrial company; the sale or lease of a part or whole of any industrial undertaking of the sick industrial company; such other preventive, ameliorative and remedial measures as may be appropriate.

The scheme can provide for any change in the Board of Directors and several other measures. A company is regarded as a potentially sick industrial company if its accumulated losses at the end of any financial year has resulted in erosion of 50% or more of its peak net worth during the immediately preceding financial years, the company reports the fact to BIFR. The Board then can proceed to make a scheme for the company. An appeal lies from an order of the BIFR to the appellate authority which can, after hearing the appellant, make changes in the order appealed against. The BIFR as well as the appellate authority can function in benches. Both these bodies have power to regulate their own procedure. Subject to this, they follow the principles of natural justice in holding the enquiry into the sickness of the company or in disposing the appeal. Both have powers to summon witnesses and documents. The Act confers drastic powers on BIFR but this has been done to make a sick company healthy or from preventing sickness. BIFR is supposed to have done useful work towards rehabilitation of sick industrial companies.

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(xii) Rent Control The shortage of housing during the Second World War resulted in restricting the powers of landlords to evict tenants and their freedom to fix rent for their premises. Since this shortage has been persisting, the control is still continuing and various statutes have been enacted by the States in India. The Delhi Rent Control Act, 1958 is one such example. The statute empowers the Central Government to appoint rent controllers to decide disputes between tenants and landlords, such as, fixation of standard rent and eviction of tenants. Only a person who has held a judicial office in India for 5 years or has been a legal practitioner for 7 years is entitled to be appointed as a rent controller. Before making any order prejudicially affecting any person, the controller is required to give him a reasonable opportunity of being heard. In proceedings before him, he is to follow "as far as may be" the practice and procedure of a court of small causes, including the recording of evidence (which means that the provisions of the Civil Procedure Code are to be followed as far as possible). Lawyers are entitled to appear before him, subject to any rules made under the Act. He is empowered to award such costs to any party as he considers reasonable. He has the powers of a civil court under the CPC when trying a suit in respect of summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of documents, etc. An order of a rent controller is appealable to the Rent Control Tribunal81 of one person to be appointed by the Central Government from amongst persons who are or have been district judges, or who have held a judicial office in India for at least ten years. An order of the tribunal involving substantial question of law is appealable to the High Court. An order by the controller, or an order passed on appeal, is executable by the controller as a decree of a civil court and for this purpose the controller has all the powers of a civil court. The I.L.I. Study on Administrative Tribunals states as regards these bodies : "Though, under the Act, power to appoint various authorities is vested in the Central Government, yet, in practice the procedure is for the government to write to the High Court to suggest names for appointment. Persons suggested by the High Court are invariably accepted by the government. If, in the opinion of the government, any of the authorities is not satisfactorily discharging its duties, the High Court is again approached for suggesting new persons. Thus, in practice, appointments and transfers of the various rent control authorities are in the hands of the High Court."82 Because of the acute housing shortage, landlord-tenant litigation abounds in India to meet the situation, the Supreme Court has suggested the creation of a national rent tribunal on an all India basis with quicker procedure so that such disputes can be resolved quickly and the Supreme Court and the High Courts are relieved of the heavy burden of rent litigation.83 (xiii) Regulation of Professions Parliament has enacted a number of statutes to regulate several professions and to provide for an adjudicative machinery for enforcing discipline and regulating professional conduct among the practitioners of the concerned profession. In England these are called domestic tribunals. There are many such statutes in India, e.g., the Advocates Act, 1961; the Chartered Accountants Act, 1949; the Cost and Works Accountants Act, 1959; the Architects Act, 1972; the Pharmacy Act, 1948; the Medical Council Act, 1956; the Indian Medicine Central Council Act, 1970; the Dentists Act, 1948; and the Press Council Act, 1978. By way of illustration, a few details may be mentioned here with regard to some of these bodies. (1) Press Council The Press Council Act creates a Press Council. The purpose underlying the creation of this body is to preserve the freedom of the press and to maintain and improve standards of newspapers. The Council has only the power to admonish and censure guilty persons. The Government of India is to establish the Press Council of India. The Council consists of a Chairman and 28 members. The Chairman is selected by a Committee consisting of the Chairman of Rajya Sabha, the Speaker of Lok Sabha, and a person elected by the members of the Council. Of the members, six are editors of newspapers, seven working journalists, six represent the newspaper owners, one is from among those who manage the news agencies, three persons having special knowledge of education, science, law, literature and culture, of whom one each is nominated

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by the University Grants Commission, Bar Council of India and the Sahitya Academy; three members of Lok Sabha nominated by the Speaker, and two members of Rajya Sabha nominated by the Chairman. All these members mentioned above are selected in accordance with prescribed rules and the government has no power to select any one of them. The body is thus genuinely independent of the government control. If the Press Council is satisfied that a newspaper or news agency has offended against the standards of journalistic ethics or an editor or a journalist has committed any professional misconduct, after holding an inquiry and giving an opportunity to the concerned person may, after recording reasons, warn, admonish or censure the newspaper, the news agency, the editor or the journalist. The Council has powers of a civil court for purposes of summoning witnesses, discovery of documents etc. (2) Bar Council The Advocates Act, 1961 creates a State Bar Council at the State level and a Bar Council of India at the Centre.84 A State Bar Council is empowered to enforce discipline in the legal profession. But as the Bar Council is a large body, provision has been made for appointment of a disciplinary committee which initially holds the enquiry relating to an allegation of misconduct. The procedure prescribed is that, either on application or suo motu, if the State Bar Council 'has reason to believe' that an advocate has committed a misconduct, it refers the case to the disciplinary committee. The requirement 'has reason to believe' is a barrier against frivolous enquiries. The State Bar Council refers a complaint against an advocate to its disciplinary committee only when it is satisfied that there is a prima facie case against the advocate. An important point to note is that no complaint can be made directly to the Disciplinary Committee, nor can the Disciplinary Committee directly enter upon an inquiry into the alleged misconduct of an advocate. Any complant against an advocate is entertained first by the State Bar Council and then it may refer the same to its Disciplinary Committee if it has reason to believe that the advocate is guilty of misconduct. Thus, it is not obligatory on the State Bar Council to refer each and every complaint to its Disciplinary Committee. The Bar Council is to be satisfied that there is a prima facie case for investigation against an advocate. The Bar Council can throw out a complaint if it is frivolous. In coming to a decision whether to refer or not to refer a complaint, the Bar Council has to duly apply its mind to the material before it. The orders of State Bar Council are revisable by the Council of India.85 In placing a matter before the disciplinary committee, the Bar Council does not act as a prosecutor in a criminal case. The Disciplinary Committee makes the enquiry and may summarily reject the case if it finds no prima facie case of misconduct; or if the committee finds a prima facie case, it may fix up a date for hearing and give a notice to the advocate concerned and the Advocate-General of the State. After giving an opportunity to the advocate concerned to represent his case, the committee may dismiss the complaint, or reprimand the advocate or suspend his name from the rolls of the State Bar Council. As the Supreme Court has pointed out in In Re An Advocate,86 the Act does not prescribe the procedure to be followed at the hearing by the Disciplinary Committee. This procedure is outlined in Ch. VII of the Bar Council of India Rules. The Court has ruled that these proceedings are of ' quasi-criminal' character. The Disciplinary Committee has to follow principles of natural justice. If it fails to do so, its decision to punish an advocate may be quashed. The Disciplinary Committee has one year to dispose of the complaint. If the case is not disposed of within the prescribed period, it is transferred to the Bar Council of India.87 Within 60 days of the order passed by the disciplinary committee of the State Bar Council, an appeal can be preferred to the Bar Council of India. The disciplinary committee of the Bar Council of India is to hear the appeal and 'pass such order as it deems fit.' The Supreme Court has ruled that this committee enjoys appellate jurisdiction of the widest amplitude.88 The words 'pass such order as it deems fit' are words of very wide import. However, the order passed must be germane to the Act. A further appeal lies to the Supreme Court against the orders of the disciplinary committee of the Bar Council of India within 60 days of the passing of the order.89 The State Bar Council can file an appeal in the Supreme Court against a decision of the Disciplinary Committee of the Bar Council of India.90 In the instant case, a decision by the State Bar Council Disciplinary Committee holding an advocate guilty of misconduct was reversed by the Central Bar Council on appeal. The State Bar Council sought to appeal to the Supreme Court against this verdict. Under S. 38, any person "aggrieved" by an order of the Central Disciplinary Committee can appeal to the Supreme Court. The Court ruled that the State Bar Council could appeal as it could be regarded as a "person aggrieved" in the circumstances of the case as it was interested in ensuring proper professional standards and etiquette among the advocates.

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The appellate powers of the Supreme Court extend to both questions of law and fact. Under S. 38, the Supreme Court has jurisdiction to pass in such an appeal any order it deems fit.91 However, the Court has ruled that, as a general rule, it would not interfere in an appeal with concurrent findings of fact of the Disciplinary Committees of the State Bar Council and the Bar Council of India unless the finding is based on no evidence or it proceeds on mere conjectures and surmises.92 The Bar Council of India has power to take action itself in the case of those advocates whose names are not entered on any state roll. The disciplinary committee of the Bar Council of India may also withdraw for inquiry before itself any pending proceedings before the State Bar Council and dispose of the case itself. The disciplinary committee of a Bar Council has the power of a civil court for summoning and enforcing attendance of a person and examining him on oath, compelling discovery and production of documents, receiving evidence on affidavit, requisitioning any public record, issuing commissions, etc. Further, the Act provides that all proceedings of the disciplinary committee of a Bar Council are deemed to be judicial proceedings within the meaning of S s. 193 and 228 of the Indian Penal Code and the disciplinary committee is deemed to be a civil court within the meaning of S s. 482 and 485 of the Code of Criminal Procedure (Sections 346 and 349 of the new Code). Besides, the disciplinary committee may send to any civil court, any summons or process, and the civil court would act as if it were its own summons. The committee, suo motu or otherwise, has a right to review its own decision but "no such order of review" of the disciplinary committee of a State Bar Council has effect unless approved by the Bar Council of India.93 A Disciplinary Committee of the Bar Council has power to summon witnesses and enforce their attendance as prescribed by O. 16, CPC. (3) Institute of Chartered Accountants of India Under the Chartered Accountants Act, 1949, the Institute of Charered Accountants of India is constituted as an incorporated body. It has a Council and officers to manage its own affairs. Its functions, inter alia, include enforcing professional discipline and maintenance of the status and standard of professional qualifications. The Council consists of 24 elected members and 6 members nominated by the Central Government. The Council elects the President and the Vice-President. The Council has power to constitute, among many other committees, a Disciplinary Committee consisting of the President, Vice-President and three persons, of whom two must be elected by the Council and one must be a person nominated by the Central Government. On report of misconduct against a member of the Institute, the Council may refer the case to the Disciplinary Committee which holds enquiry and reports to the Council. If the Council finds no misconduct then it may dismiss the case. In case it finds any misconduct enumerated in Schedule I appended to the Act, it must give an opportunity to be heard to the person against whom the order is being passed. Thereafter, it can remove the name of the member from the rolls, or reprimand him.94 However, in case of removing the name of the member beyond a period of 5 years, the Council can only forward the case to the High Court with its recommendation; the Council cannot make orders by itself in such a matter. Further, in a case where misconduct, other than that enumerated in Schedule I, is involved, it has to forward the case to the High Court. On a reference being made, the High Court is to fix a date for hearing, and afford to the Council, the Central Government, and the person against whom the charge has been made, an opportunity of being heard. It may pass an order directing that proceedings be filed, or it may dismiss the complaint, reprimand the member, remove his name from the roll temporarily or permanently, or may refer the case back to the Council for enquiry. The Council and the Disciplinary Committee have been given the power of a civil court under the Code of Civil Procedure in respect of summoning and enforcing attendance of any person or examining him on oath, compelling discovery and production of documents, etc. Appeals against the orders of the Council imposing penalties referred to in S. 21(4) of the Act lie to the High Court within 30 days of the passing of the order. The High Court may on its own motion modify, remit, set aside, confirm, reduce or enhance the penalty contained in the order of the Council. But it is provided that in case the High Court modifies or sets aside the order or enhances the penalty, the Council or the individual must be given an opportunity to represent its or his case. (4) Council of Architecture The Architects Act, 1972 creates a Council of Architecture. The Council may remove the name of an architect from the register of architects, or take any other disciplinary action against him, on account of professional misconduct after holding an inquiry as prescribed by the rules and after giving a hearing to the architect.

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(5) Medical Council The Medical Council Act, 1956, creates the Medical Council of India. The Council is to remove the name of a medical practitioner from the Indian Medical Register if "the name of any person enrolled on a State Medical Register is removed therefrom in pursuance of any power conferred by or under any law relating to registration of medical practitioners for the time being in force in any State". An appeal lies to the Central Government which is to give the decision after consulting the Council. The Indian Medicine Central Council Act, 1970, creates the Central Council of Indian Medicine which discharges similar functions with respect to practitioners of Indian Medicine as the Medical Council performs with respect to the other medical practitioners. (6) Dental Councils The Dentists Act, 1948, creates the Dental Council of India and State Dental Councils. A State Dental Council may remove the name of a dentist from the register of dentists on the ground of misconduct, etc., after giving him a reasonable opportunity of being heard and after such inquiry as it deems fit. An appeal lies to the State Government and the order of the State Government upon such appeal "shall be final". (7) AIIMS The All-India Institute of Medical Sciences Act 25 of 1956 vide its Section 3 provides for the establishment and incorporation of an Institute to the called the All-India, Institute of Medical Sciences, the composition of which finds place in Section 4 which provides for inclusion of members from various fields including medical, scientific and non-medical & non-scientific of whom some are to be ex-offcios, some Central Govt. nominees and some are to be elected by the Houses of Parliament from among their members. The Section 4(e) provides for nomination by the Central Govt. five persons of whom one is to be a non-medical scientist representing the Indian Science Congress Association. The President of the Institute is to be nominated by the Central Govt. from among the members of the Institute (Section 7). The Institute shall have a Governing Body whose Chairman shall be the President of the Institute. To control the working and functioning of the Institute so as to meet the purposes of the Act, Section 28 empowers the Central Govt. to make rules in consultation with the Institute and Section 29 entitled the Institute to make regulations with previous approval of the Central Govt. The Central Govt., exercising its powers under Section 4(e), nominated the Minister of Health and Family Welfare as a member of the Institute and then in exercise its powers under Section 7 the Central Govt. nominated the said Minister as the President of the Institute. As to the term of office of the Members nominated under Section 4(e), here the said Minister, it was contended that he, being not an ex-offcios member, would not cease to be the member and as such the President/Chairman when he ceases to be the Minister. The Supreme Court disagreed to it and held that as he ceases to be the Minister, he would cease to be a Member and consequently the President/Chairman and in his place his successor would be entitled to be nominated by the Central Govt. for the residue period.95 (xiv) Commodity Boards A kind of self-regulatory mechanism in the case of specific commodities has also been created by several statutes. Examples of such statutes are the Coffee Act, 1942; the Tea Act, 1953; the Rubber Act, 1947; the Coir Industry Act, 1953; the Cardamom Act, 1965; the Seeds Act, 1966; and the Tobacco Act, 1975.96 Regulation of these commodities in their various facets involves adjudication by the respective statutory board which includes as its members representatives of the producers and the trades concerned. The several commodity boards regulate production, price, sale, import and export, storage, etc., of the respective commodities. Some of these regulations involve licensing. It will suffice here to give details of regulation of one commodity, namely, coffee by the Coffee Act, 1942. The statute creates a Coffee Board consisting of a chairman appointed by the Central Government, three members of Parliament elected by the House of People and Rajya Sabha, and a maximum of 29 members appointed by the Central Government representing the governments of the principal coffee-growing States, coffee-growing industry, coffee-trade

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establishments, curing establishments, interests of labour and consumers, and such other interests as, in the opinion of the Central Government, ought to be represented. Some of the functions of the board are : granting of export licences for the export of coffee, allotment to each registered estate an internal sale quota for a year, issue of licences for sale of uncured coffee, licensing of curing establishments, etc. The board is to function under the control of the Central Government which may cancel, suspend or modify as it thinks fit any action taken by the board. Any person aggrieved by an order of the board refusing a licence to or cancelling a licence of curing establishment may, within sixty days of the order, appeal to the Central Government. (xv) Central Administrative Tribunal (CAT) For a few years after the incorporation of Art. 323A into the Constitution, no action was taken to set up any tribunal as envisaged by that constitutional provision. In the meantime, a large number of service matters kept on coming before the High Courts through writ petitions under Art. 226, and these cases occupied a good deal of judicial time. In 1980, in K.K. Dutta v. Union of India, 97 the Supreme Court suggested the setting up of tribunals to decide disputes relating to service matters between the government and its employees. At last, in 1985, in pursuance of Art. 323A, Parliament enacted the Administrative Tribunals Act providing for the setting up of Tribunals for adjudication of disputes pertaining to service matters between the Central or any State Government and its employees. Tribunals can also be set up for adjudication of disputes between any local or other authority within the territory of India or under the control of the Government of India or any other Corporation owned or controlled by Government and its employees. The Act has been amended twice since its enactment, once in 1986 and again in 1987, to carry out certain modifications in the Act as suggested by the Supreme Court in its judgment in Sampath Kumar,98 with a view to make the Act constitutionally viable.99 The Central Government is authorised, by notification, to establish a Central Administrative Tribunal (CAT) to deal exclusively with service disputes arising between the Central Government and its servants. On request by a State, the Central Government may also establish such a tribunal for that State (SAT). The Central Government may establish a Joint Administrative Tribunal (JAT) for two States if they so desire. It may be noted that CAT, SAT, JAT do not constitute a hierarchy of tribunals and no appeal lies from SAT or JAT to CAT. SAT or JAT will have jurisdiction over State Services. CAT has jurisdiction in service matters pertaining to any All India Service or to any civil service or civil post under the Centre, or to a post connected with defence or in defence services to which a civilian is appointed. Service matters in any authority, corporation or society owned or controlled by the Government of India can also be placed under the Tribunal. The Tribunal will not however have jurisdiction over the following : (i) (ii) (iii)

any member of the armed forces; any servant of a High Court or the Supreme Court; Secretarial staff of any House of Parliament or a State Legislature or a Union Territory Legislature.

CAT consists of a Chairman, a number of Vice-Chairmen and other members of two categories--Judicial and Administrative. A bench of the Tribunal is to consist of two members, one Judicial and one Administrative. The benches ordinarily sit at New Delhi (which is known as the principal bench) and at Allahabad, New Bombay, Bangalore, Chandigarh, Cuttack, Calcutta, Madras, Ernakulam, Jodhpur, Guwahati, Hyderabad, Patna, Ahmedabad and Jabalpur. In Sampath Kumar, the Supreme Court suggested that a permanent bench of the Tribunal be established at every place where there is the seat of a High Court. If, however, there is not enough work for the tribunal at any such place, then arrangements may be made to have a circuit bench there.1 Qualifications for appointment as a Judicial member of the Tribunal are : (i) (ii)

a person has been, or is qualified to be, a High Court Judge; or has been a member of the Indian Legal Service and has held a post in Grade I of that Service

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for at least three years. To be appointed as an Administrative Member, a person (i) (ii)

must have, for. at least two years, held the post of an additional secretary to the Central Government, or any other post under the Central or a State Government carrying a scale of pay not less than that of an additional secretary to the Central Government; or he must have held, for at least 3 years, the post of a joint secretary to the Central Government, or any other post under the Central or a State Government carrying a scale of pay not less than that of the joint secretary to the Central Government.

A person is not qualified to be appointed as the Chairman unless he is or has been a High Court Judge. A Vice-Chairman after two years can also be appointed as the Chairman. For appointment as the Vice-Chairman, a person has to be(i) (ii) (iii) (iv)

one who is or has been, or is qualified to be a High Court Judge; has, for at least two years, held the post of a Secretary to the Central Government, or any other post under the Central or a State Government having salary equivalent to the Secretary to the Central Government; or has been an Additional Secretary to the Government of India or has held equivalent post salary-wise under the Central or State Government for at least five years. A member of the Tribunal for at least three years can also be appointed as a Vice-Chairman.

Consultation with the Chief Justice of India has been made mandatory while appointing a member, or the Chairman, or a Vice-Chairman. All appointments to CAT are to be made by the President. In case of a State Tribunal, appointments are made by the President in consultation with the Governor of the concerned State. The term of office is five years but the incumbent is eligible for re-appointment and the age of retirement for the Chairman and Vice-Chairman is 65 years, while for a member it is 62 years. Adequate provisions have been made for ensuring the independence of the Tribunal members. The Chairman, Vice-Chairman or a member is not to be removed from office except by an order made by the President on the ground of proved misbehaviour or incapacity after an inquiry made by a Supreme Court Judge after giving a hearing to the person concerned. The salary and allowances or any other terms of office cannot be varied to the disadvantage of the incumbent. It may be of interest to point out that while the majority opinion in Sampath Kumar2 laid emphasis on the setting up of a high powered selection committee for selecting the Chairman, Vice-Chairman and members of the Tribunal, Bhagwati, C.J's opinion had evisaged either a selection committee or consultation with the Chief Justice of India as an alternative method for the purpose.3 On an application of the Attorney General, the Court reviewing its decision in Sampath Kumar4 finally ruled that to make appointments to the Tribunal, the appropriate course would be to have a high powered committee headed by a Supreme Court Judge nominated by the Chief Justice of India. This suggestion has not yet been incorporated in the Act. The Tribunal must follow natural justice in its procedure. In Baidyanath Mahapatra v. State of Orissa, 5 the tribunal decision was held vitiated because of the breach of the rule against bias. G, the Tribunal Chairman, was formerly the ex-chief Secretary of the Orissa Government. As such, he was a member of the review committee which recommended B's premature retirement from government service. He challenged the government order before the Tribunal and G, as chairman thereof, participated in the Tribunal proceedings and dismissed B's case. This was a serious breach of the rule against bias. The Supreme Court insisted : "The members of the Tribunal must follow rules of natural justice in administering justice like Judges. They should not sit in judgment on their own decisions." A person can bring a service matter before the Tribunal by making an application. An applicant can take the assistance of a legal practitioner to present his case before the Tribunal. The Tribunal is to decide the matter by majority. No other court is to have jurisdiction in any service matter except the Supreme Court under Art. 136. The Tribunal enjoys the powers of a civil court under the CPC, while trying a suit in respect of inter alia the following matters : summoning of witnesses, enforcing their attendance and examining them on oath; requiring discovery and production of documents etc..

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According to S. 20, the Tribunal ordinarily is not to admit an application unless the applicant has exhausted all remedies available to him under the Service Rules as to redressal of grievances. The rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some rules provide even a second appeal or a revision. S. 20 gives effect to the Disciplinary Rules and the exhaustion of remedies available thereunder as a condition precedent to maintaining claims under the Act. Thus, a government servant may not be able to approach the Tribunal for many years because he must first cross a number of hurdles of administrative hierarchy. It may take years for the government servant to exhaust the "remedies". Bureaucrats are not used to taking decisions quickly. But, Section 21 limits the right of a government servant to submit an application to the Tribunal within one year of the passing of the final order by the competent authority or within six months after the date of filing of the appeal where no final order has been passed by the appellate authority. This provision is a retrograde step because the High Courts do not rigorously follow any time limit in writ petitions and in suitable cases could admit such petitions even after some delay.6 This becomes clear from the judgment of the Supreme Court in G.P. Doval v. Chief Secretary, Government of U.P., 7 wherein the Court heard the petitioner 12 years after the cause of action had arisen in his favour. The Tribunal will not be able to do so. It seems necessary to introduce some flexibility in this respect. Now, in S.S Rathore v. State of Madhya Pradesh, 8 the Supreme Court has clarified that "in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made . . ." This means that the cause of action first arises not from the date of the original adverse order but on the date when the remedies available to the public servant under the relevant service rules as to redressal are disposed of. However, when the remedy by way of making appeal or representation to a higher authority is availed of, but no order is made, then a period of six months from the date of preferring the representation is to be taken as the date when the cause of action arises. Under S. 21(3), the Tribunal can condone the delay if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within the specified period.

A very significant provision is S. 14 of the Act which confers on the Tribunal "all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court) in relation to service matters of persons employed in the service of the Central Government or in All India Service". The High Court cannot thus issue a writ under Art 226 in respect of a service matter falling under the jurisdiction of CAT.9 S. 28 provides that after the Tribunal is established, no court except the Supreme Court or a labour tribunal shall be entitled to exercise any jurisdiction in relation to recruitment or matters concerning such recruitment or such service matters. S. 27 makes an order of the Tribunal finally disposing of an application as final. S. 29 of the Act provides that as soon as the Tribunal is established, all service matters pending before any court or other authority (except appeals before a High Court or Supreme Court) will stand transferred to the Tribunal. The Tribunal will only be subject to the jurisdiction of the Supreme Court : (i) under Art. 32; (ii) under Art. 136.10 The writ jurisdiction of the High Courts under Art. 226 in service matters is now taken away.11 The Tribunal has been given power and authority in respect of its contempt as a High Court. Prior to the establishment of the Tribunal, the High Courts had the power to issue interim orders staying the operation of the impugned order appealed against when the Court felt satisfied that the circumstances existed for issue of such orders to save the petitioner from pecuniary or other loss. But Section 24 of the Act obliges the Tribunal to pass "no interim order (whether by way of injunction or stay or in any other manner) on or in any proceedings relating to, an application, unless : "(a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made;" and "(b) an opportunity is given to such party to be heard in the matter." It adds in a proviso that the "Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied ... that it is necessary to do so for preventing any loss being caused to the applicant which cannot be adequately compensated in money, but such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of 14 days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order." Thus, the government servant shall have to continue to suffer the pains of any illegal order as long as it is not set aside by the Tribunal after a protracted hearing which may take sometime, and that too only after

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he has exhausted all the remedies available. In such cases, justice delayed will not only mean justice denied, but no tribunal will be able to compensate an aggrieved person for his and his family's financial and mental agony. The Tribunal is only subject to the control of the Supreme Court under Arts. 32 and 136. Art. 32 can be invoked only when there is a question of a fundamental right involved. In other cases, an appeal by special leave of the Supreme Court can lie from the Tribunal to the Supreme Court. It is not very often that the Court permits a special leave appeal.12 Also, invoking this jurisdiction of the Supreme Court is a very costly affair. A High Court is nearer to the people than the Supreme Court. Therefore, for all practical purposes, the decisions of the Tribunal will remain by and large unchallenged although in theory these decisions can be challenged in the Supreme Court. The Judicial review of a Tribunal decision will in practice be rather a rare matter.13 In J.B. Chopra v. Union of India, 14 the Supreme Court has held that the Administrative Tribunal can declare the departmental recruitment rules unconstitutional for violating Arts. 14 and 16. The reason advanced for this judicial view is that the Tribunal is a substitute for the High Court and, therefore, it can do whatever a High Court can do. The implication of this statement may be that the Tribunal may even declare an Act of Parliament unconstitutional if it deals with service matters and comes in conflict with Arts. 14 and 16. In Parma Nand,15 the Supreme Court has ruled that CAT has no power to reduce the quantum of punishment imposed on an employee by the disciplinary authority on the ground that the same was disproportionate to the employee's proved misbehaviour. The Court has argued that the High Court could not have done so on a writ petition and so CAT also cannot do so as CAT's powers are synonymous with High Court's power. The Tribunal can exercise only such powers as the civil court or the High Court could exercise by way of judicial review. The Tribunal's power is neither more nor less because it is just a substitute for these courts. But as we shall see later, it is now an evolving ground to challenge a discretionary decision that it imposes a disproportionately high punishment on the concerned person. The Supreme Court has already applied this ground in a few cases.16 When a government servant is dismissed after a departmental inquiry, CAT cannot reappreciate evidence recorded at the inquiry and reach a different finding than that reached by the disciplinary authority. The tribunal has no jurisdiction to go into the truth of the charges except where these are based on no evidence, i.e. where these are perverse. The tribunal can also go into the question of vagueness of the charges. This is because the tribunal has jurisdiction akin to that of the High Court under Art. 226. CAT has power of judicial review which means that it can only examine the procedural correctness of the decision-making process.17 In Union of India v. Abbas, 18 the Supreme Court has ruled that CAT can exercise jurisdiction equivalent to the writ jurisdiction of the High Courts in service matters. In this case, CAT quashed a transfer order made by the competent authority. On appeal, the Supreme Court quashed the Tribunal order saying that the Administrative Tribunal is not an appellate authority over the decisions of competent authority. Tribunal's jurisdiction is subject to the constraints and norms to which the High Courts' writ jurisdiction is subject.19 A discretionary decision of a competent authority in a service matter cannot be questioned in the tribunal on merits; it can be challenged on such grounds as Mala fides, violation of statutory provisions etc.20 The Orissa Government suspended an employee pending enquiry as he was accused of grave charges of misconduct. SAT set aside the suspension order. On appeal, the Supreme Court set aside the tribunal order saying that "since serious allegations of misconduct" had been made against the respondent, "the tribunal was quite unjustified in interfering with the order of suspension of the respondent pending inquiry." The Court's view was that the tribunal proceeded in haste in passing the order.21 CAT stayed disciplinary proceedings against an I.T.O. initiated against him on the ground of misconduct and misbehaviour in making certain assessments so as to confer benefit on the assessees. The Tribunal gave no reasons for its order. Quashing the Tribunal Order, the Supreme Court pointed out that if the disciplinary proceedings in such serious matters were to be stayed so lightly as the Tribunal had done in the instant case, no one would ever be brought to book.22 These cases are restrictive of CAT's jurisdiction. CAT cannot go into the merits of a discretionary decision taken by the concerned authority adversely affecting a government servant. This view is based on an implication viz., that the tribunal is a substitute for a High Court, rather than on an express provision in the parent statute. A bench of CAT comprises of both law men and administrators and is thus better equipped than a High Court ever was (as it consisted only of law men) to probe into the exercise of discretion by the

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concerned authorities in service matters. But the equivalence of CAT to the High Court is not for all purposes. The Supreme Court has ruled in M.B. Majumdar v. Union of India, 23 that the ruling in Sampath Kumar means that the Central Administrative Tribunal is equivalent to a High Court as a forum for adjudication of service disputes; it does not mean that the Chairman and a judicial member of the Tribunal can be equated to the Chief Justice and a Judge of the High Court in the matter of pay and other conditions of service. A High Court Judge retires at the age of 62 years while the Chairman and Vice-Chairman of CAT retire at 65. "This disparity itself indicates that the Chairman, Vice-Chairman and Members of the Tribunal are not equated with the Chief Justice and Judges of the High Court for all purposes..." The object underlying the Act is laudable, viz., to provide a specialized forum for adjudication of service matters and to relieve the High Courts of some load of work and to quicken the disposal of service matters. The Act also makes provision for setting up such tribunals by the State as well. Some States have done so; some have not done so. The Supreme Court has suggested to the State of Uttar Pradesh to set up a tribunal under this Act to decide service disputes between itself and its employees so that the High Court is not burdened with service litigation and there may be uniformity in the matter of adjudication of service matters.24 The members of the Administrative Tribunal cannot be considered to be Judges and their statement cannot be treated to be a decree; it may be construed to be only an order for the purpose of decision arrived at by the Tribunal under the Administrative Tribunal Act, 1985.25 (xvi) Consumer Protection These are the days of consumer protection. Some provisions for the purpose have been made in the Monopolies and Restrictive Trade Practices Act (MR TP Act).26 In addition, Parliament has also enacted the Consumer Protection Act, 1986, to provide for the better protection of the interests of the consumers. The Act has been characterised as making a new beginning and as "a step forward in establishing egalitarian consumerism."27 The Act applies to all goods and services. The provisions of this Act are "in addition to" and "not in derogation of" the provisions of any other law. Thus, the Act does not supersede any other remedy available to a consumer under any other law. Also, a consumer forum can exercise jurisdiction on a matter on which any other court or tribunal may have concurrent jurisdiction. The Central Government is given power to establish the Central Consumer Protection Council under the chairmanship of the Minister incharge of the Consumer affairs in the Central Government. Other members of the Council are to be officials and non-officials representing such interests as may be prescribed. The Council is to promote and protect the rights of the consumers, such as : (i) (ii) (iii) (iv) (v) (vi)

the right to be protected against the marketing of goods and services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be, so as to protect the consumer against unfair trade practices; the right to be assured, wherever possible, access to a variety of goods and services at competitive prices; the right to be heard and to be, assured that consumers' interests will receive due consideration at appropriate forums; the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers; and the right to consumer education.

The State Government may also establish similar Council in the State. The Act provides for establishment of adjudicatory bodies to adjudicate upon consumer grievances at three levels : district, state, national. The State Government is to establish in each district one or more Consumer Disputes Redressal Forum (known

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as the "District Forum") in each district of the State. The Forum is to consist of a person who is, or has been, or is qualified to be, a district judge as its President, and two other members of whom one shall be a woman, having knoledge or experience of such disciplines as economics, law, commerce, accountancy, industry, public affairs or administration. All members of a district forum are appointed by the State Government on the recommendation of a selection committee. The members hold office for a term of five years, or up to the age of 65 years, whichever is earlier, and they are not eligible for re-appointment. The Forum can entertain complaints where the value of the goods or services and the compensation, if any, claimed is less than rupees five lakhs. The procedure as to how such a complaint is to be dealt with is laid down in the Act. The forum has to hear the concerned parties before deciding the complaint. An objectionable provision is S.13(3) according to which if the prescribed procedure is followed by the district forum, then its proceedings cannot be called in question in any court on the ground that the principles of natural justice have not been followed. The State Government is also to establish the State Consumer Disputes Redressal Commission. This Commission is to consist of(i) (ii)

a person who is or has been a Judge of a High Court, as President, to be appointed after consultation with the Chief Justice of the High Court; two other members having experience in economics, law, commerce, accountancy, industry, public affairs or administration, to be appointed on the recommendation of a Selection Committee. One of these members is to be a woman.

A member (including the President) of the State Commission holds office for five years or upto the age of 67 years, whichever is earlier, and cannot be re-appointed. The State Commission is to hear appeals from District Forums and is itself to entertain complaints where the value of the goods or services and compensation is between 5 lakh and 20 lakh rupees. The State Commission has power to call for the records and pass appropriate orders in any consumer dispute, pending before or decided by a district forum, where it has exercised a jurisdiction not vested in it, or has not exercised a jurisdiction vested in it, or has acted illegally or with material irregularity in exercising its jurisdiction. From a decision of the State forum given in exercise of its original jurisdiction, an appeal lies to the National Consumer Disputes Redressal Commission which is to consist of a person who is or has been a Supreme Court Judge appointed by the Central Government after consultation with the Chief Justice of India, as president, and four other members having experience in economics, law, commerce, accountancy, industry; public affairs or administration, one of whom has to be a woman. They are appointed on the recommendation of a selection committee. A member of the National Commission holds office for 5 years or upto the age of 70 years, whichever is earlier and cannot be re-appointed. Under Rule 13 of the Consumer Protection Rules, 1987, power to remove the President or any member of the National Commission vests in the Central Government. The grounds on which this power can be exercised are : (a) insolvency; (b) conviction for an offence involving moral turpitude; (c) physical or mental incapacity; (d) acquisition of such financial or other interest as is likely to affect prejudicially his functions; (e) abuse of his position so as to render his continuance in office prejudicial to the public interest. Before removing on the grounds(d) or (e), it is necessary for the government to hold an inquiry. The National Commission hears appeals from the State Commission. The National Commission itself adjudicates upon complaints where the value of the goods, services and compensation claimed is over twenty lakh rupees. From an original decision of the National Forum in such a matter, an appeal lies to the Supreme Court. The National Commission has been given the overriding power to call for the records and pass appropriate orders in any consumer dispute which is pending before, or has been decided by, any State Commission where it appears to the National Commission that the State Commission has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. The National Commission follows such procedure as may be prescribed by the Central Government. An order of any of these bodies is made enforceable as a decree of a court. Some powers of a civil court under the Code of Civil Procedure Code have been given to each of these fora, e.g. : (1) summoning witnesses and examining them on oath; (2) discovery and production of any document; (3) receiving

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evidence on affidavits etc. A proceeding before any of these fora is declared to be a judicial proceeding within the meaning of Ss 193 and 228, IPC. A forum is also declared to be civil court for the purposes of S. 195, and Chapter XXVI of the CrPC.28 A consumer forum can entertain complaints from a consumer that(i) (ii) (iii) (iv) (v)

an unfair trade practice or restrictive trade practice has been adopted by a trade; goods bought by him or agreed to be bought by him suffer from defects; the services hired or availed of or agreed to be hired or availed of by him suffer from some deficiency; a trader has over-charged for goods; goods hazardous to life and safety are being sold.

The term unfair trade practice has been defined in S. 2(1)(r) of the Act. This definition is the same as is found in S. Sections 36A of the MR TP Act. A restrictive trade practice has been defined in S.2(1)(nn) of the Act. This definition is narrower than the definition adopted in the MR TP Act. A consumer is defined as one who buys any goods for consideration excluding a person who obtains the goods for resale or any commercial purpose. Thus, consumer is one who purchases goods for private use or consumption. Under S.14, a consumer forum is entitled to give the following reliefs to the complainant : it can direct the opposite party to remove the defects in the goods in question; to replace the goods with new goods of similar description which is free from any defect; to return to the complainant the price of the goods; to remove the defects or deficiencies in the services in question; to discontinue the unfair or restrictive trade practice; not to offer hazardous foods for sale; to withdraw the hazardous goods from being offered for sale and to provide adequate costs to the parties. The forum can also award compensation to the consumer for any loss or injury suffered by him because of the negligence of the opposite party. In case of non-compliance of an order made by a consumer forum, the party concerned may be punished by the forum with imprisonment upto three years and or with fine upto ten thousand rupees. A consumer forum is not entitled to issue an interim injunction or give any interim relief.29 A forum can give only such reliefs as are mentioned above. No power has been conferred on the Commission to issue an injunction. Also, O. XXXIX, CPC, has not been made applicable to the proceedings before the National Commission.30 Questions of jurisdiction of consumer fora arise from time to time. A recent Supreme Court decision on this question is Morgan Stanley Mutual Fund v. Kartick Das .31 A company invited investors to apply for its shares. The Calcutta District Consumer Disputes Redressal Forum issued an interim injunction seeking to restrain the company from floating the public issue pending a final decision on its validity. An appeal was taken from this decision to the Supreme Court which quashed the decision of the forum on two grounds : (1) A prospective investor in a company is not a consumer as defined in S. 2(1)(d) of the CP Act. At the stage of the application for allotment of shares, shares cannot be treated as goods. Therefore, the matter of issue of shares lay outside the jurisdiction of the forum. (2) The Consumer Forum has no power under S. 14 to grant any interim relief. A forum can make only a final order and cannot issue an interim injunction. The Calcutta High Court has ruled that a district forum has no jurisdiction to take cognisance of a complaint against construction of public convenience by the Calcutta Development Authority at Netaji Park. Such a complaint is not envisaged, nor does the complainant fall within the term 'consumer' as defined, by the Consumer Protection Act.32 In the area of restrictive/unfair trade practices, redressal can now be given both by the MRTP Commission as well as the consumer forum. A consumer forum can order discontinuance of any unfair or restrictive trade practice. This is analogous to the power of the MRTP Commission to pass a "cease and desist" order in respect of an unfair or restrictive trade practice. One of the important aspects of jurisdiction of consumer forums is that relating to deficiency in service. This

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jurisdiction is not limited to the services rendered by private parties but extends also to services rendered by the state, public sector undertakings and trading organisations which provide public service to consumers on payment of consideration. For example, insurance business is run as a monopoly in India. The Consumer forums have entertained cases against the Life Insurance Corporation and the General Insurance Corporation for repudiating claims under insurance policies. If repudiation of claims is found to be arbitrary, oppressive and malicious, damages may also be awarded to the person concerned. Accordingly, cases of deficiency of service have been entertained against, inter alia : telephone department, electricity boards, postal department. Railway Administration, Indian Airlines, State Bank of India. This is a great blessing to the consumers for these services being run as monopolies by public sector undertakings did not always treat the consumer fairly and there was no way out except filing a costly and dilatory civil suit against the concerned undertaking. One can now have a comparatively quick and less expensive remedy in the consumer forum for deficiency in service. An interesting case in this area may be taken note of here at some length. Lucknow Development Authority v. M.K. Gupta 33 is a Supreme Court case which has seminal significance not only in the area of consumer protection but also in the area of public sector enterprises and, generally, in Administrative Law as a whole. To ease acute housing shortage in Lucknow, the Lucknow Development Authority, a statutory body, undertook development of land and construction of houses for different groups of people. The authority invited applications for purchase of houses constructed by it. A flat was allotted to the respondent in the middle income group category. Even though he made full payment for the flat, it was not handed over to him for quite some time on the ground that construction was not complete. He brought the matter to the consumer forum which directed the authority to pay him interest at 12% per annum from the date he made full payment for the flat and also to hand over possession of the flat as soon as it was ready. The authority went in appeal to the National Commission which ruled that the authority should pay to the respondent a sum of over Rs. 44000/- towards the cost of completing the construction of the flat and also pay Rs. 10,000/- as compensation for harassment, mental torture and agony caused to the respondent by the action of the authority. The authority went in appeal to the Supreme Court. The Court sustained the Commission's order. Several basic questions arose before the Court, e.g. Is the government, or a statutory authority, amenable to the Consumer Protection Act? Can compensation be awarded to the complainant for any harassment caused to him by an authority's action? Who should be ultimately responsible to pay the compensation--the authority itself or the particular officials who were responsible for causing harassment to the person concerned? The authority in the instant case had contested the jurisdiction of the consumer forums to award compensation against statutory authorities. Demolishing this contention, the Court ruled that a government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. On this point, the Court observed, "The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility". The Court also ruled that undertaking by any authority to construct buildings or allot houses or building sites to citizens either as amenity or as benefit amounts to rendering of service and falls within the definition of 'service' in S. 2 (0) of the Act. The Court ruled further : "Public Authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the Commission. .." The Court ruled that the consumer forums are empowered to not only award value of the goods or services but also to compensate a consumer for the injustice suffered by him. The Court thus upheld award of compensation against the authority for harassment, mental torture and agony caused to a consumer by its actions. But the most significant part of the Court's ruling is the proposition that in case harassment is caused by the "mala fide or oppressive or capricious acts etc." of a public servant then it is he who should be held responsible for such behaviour. This means that while initially the authority shall pay compensation to the concerned person, the authority shall fix responsibility on its officials and make them pay the amount of compensation paid by the authority. This decision will go a long way to enable the consumers to enforce their rights against not only the housing boards and development authorities but other public authorities and public sector enterprises supplying goods and providing various services to the consumers for consideration, e.g., telephone service, supply of electricity, banking, insurance etc. Legally speaking, High Courts retain their power under Art. 226 of the Constitution to issue writs to a

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consumer forum. However, some High Courts have shown extreme reluctance to issue a writ to a consumer forum even when the question pertained to the jurisdiction of the forum to entertain a dispute. These High Courts have argued that the intention of Parliament is to provide a speedy and expeditious remedy in consumer disputes and for this purpose a self-cointained quasi-judicial machinery has been created. Issuing a writ will delay matters unnecessarily and thus defeat the intention of Parliament. The consumer fora are presided over by judicial personnel and an appeal lies from one forum to another and ultimately an appeal lies to the Supreme Court from the decisions of the national forum. These fora are competent to decide questions of their own jurisdiction. Therefore, normally, a High Court should not interfere with these fora through writ jurisdiction. There may however be rare cases where a High Court may think it proper to intervene.34 On the other hand, in Calcutta Metropolitan Development Authority v. U.O.I., 35 the Calcutta High Court issued a writ prohibiting the consumer forum from taking cognisance of a matter which, in the opinion of the Court, lay outside its jurisdiction.36 A consumer forum will also be subject to the supervisory jurisdiction of the concerned High Court under Art. 227 of the Constitution.37 The National Commission has ruled that a consumer forum is not a 'judicial authority' for purposes of S. Sections 34, Arbitration Act. The Commission has observed as follows in this connection :38 "In order to be a 'judicial authority' it is necessary that at least some part of the judicial power of the state should be transferred to and vested in the said authority. Under the Constitution of India the judicial power of the state has been invested in the regular hierarchy of Civil and Criminal Courts of the land and also in certain special courts specifically established for the purpose under special enactments... We are unable to agree with the view expressed by the State Commission that these forums have the 'trappings of a court'. As we see it, the endeavour of Parliament has been to ensure that these forums function in a totally informal manner free from shackles and 'trappings of courts. The proceedings before the Forums are not governed by Evidence Act or Civil Procedure Code (except for certain provisions enumerated in Section 13(4)."

However, a consumer forum may not be a 'judicial authority' for S. Sections 34, Arbitration Act, nevertheless, it certainly is a ' quasi-judicial' body. The very fact that appeals go to the Supreme Court under Art. 136 from the National Consumer Disputes Redressal Commission proves conclusively that it is a tribunal and that the principles of natural justice apply thereto. As an adjudicatory body, a consumer forum has several advantages over a civil court. One, the consumer forum follows a simplified procedure which avoids technicalities of civil procedure as followed by a civil court. Consequently, disposal of cases by the forum is expeditious as compared to a civil court. Two, no court fees are chargeable for filling a case in the consumer forum and, on the whole, proceedings in the forum are much cheaper than typical civil litigation. Three, a forum does not consist of only lawyers; it has members from other disciplines as well. Therefore, a forum can decide a dispute by applying a much broader perspective than merely that of a technical legal approach. After the enactment of the Consumer Protection Act, 1986, the State Governments dragged their feet over its implementation. Till 1991, some of these governments did not bother to fulfil one of the mandatory requirements of the Act. viz., setting up a consumer redressal commission in each district. It was only after Common Cause took the matter to the Supreme Court through a public interest litigation that the Supreme Court directed the States to do the needful at an early date.39 One of the chief purposes of enacting the Consumer Protection Act was to provide quick and cheap redressal to the consumers. Accordingly, Rule 14(4) of the Consumer Protection Rules says that "as far as possible", the National Commission 'shall' decide a complaint within a period of three months from the date of the notice received by the other party. This is to ensure that justice is not unduly delayed. Similarly, Rule 15(8) ordains that the National Commission shall decide the appeal, as far as possible, within 90 days from the date of first hearing. Recently, the Lok Sabbha Committee on Subordinate Legislation has rejected a suggestion that the time-limit to decide a complaint be increased to 180 days. The Committee has insisted that the National Commission should decide a complaint within 90 days barring those exceptional cases where an expert opinion is required for testing or analysis of commodities. In such a case, the period may be

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extended to 180 days. One of the reasons for delay in deciding cases is the grant of adjournments. The Committee has suggested that rule 15(8) be suitably amended to minimise adjournments. Another reason for delay is that many a time, there may not be quorum at a district forum. The Committee has accordingly suggested that the relevant rules be amended so that if a forum member absents himself for three consecutive meetings of the forum except for reasons beyond his control, he would cease to be a member of the forum.40

1 See, M.P. JAIN, Indian Constitutional Law, Chapters 4 and 8 (1987). 2 For a further study of this topic, reference may be made to the following materials : FARMER, Tribunals and Government (1974); HARRY STREET, Justice in the Welfare State (1975); JACKSON, The Machinery of Justice in England (1977); HENDRY, The Tasks of Tribunals: Some Thoughts, (1982) Civil Justice Qly., 253; WILLIAMS, The Tribunal System--Its Future Control and Supervision, (1990) Civil Justice Qly., 27; SAYER & WEBB, FRANKS Revisited : A Model of the Ideal Tribunal, (1990) Civil Justice Qlv. 36; WADE, Adm. Tribunals and Adm. Justice, (1981) 55 ALJ 374; WRAITH & HUTCHINSON, Administrative Tribunals (1973); S.N. JAIN, Administrative Tribunals in India, (1977); Report of the Franks Committee (1957); Report of the Bland Committee (Australia, 1973), Reports of the Council on Tribunals (U.K.). 3 Supra, Chapter IV; also, Chapter I. 4 Report of the Franks Committee, 9. Also see under heading Franks Committee, infra this chapter; for extracts from this report, see, JAIN, Cases Chapter XII, Sec. B. 5 Constitutional Law, 699 (1965). 6 See, under sub-heading '(XIV) Central Administrative Tribunal (CAT), under heading : 'Some select Adjudicatory Bodies, infra, this chapter. Also see the composition of the Income Tax Appellate Tribunal, See under heading : 'Income Tax Appellate Tribunal', infra, this chapter; the Railway Rates Tribunal, under (iv) Railway, under heading : 'Some select Adjudicatory Bodies', infra this chapter; and the tribunals established under the Consumer Protection Act, Under '(XV) Consumer Protection,' under heading : 'Some select Adjudicatory Bodies', infra this chapter. 7 AIR 1963 SC 1319 [LNIND 1962 SC 181] [LNIND 1962 SC 181] [LNIND 1962 SC 181]: 1963 (2) SCR 277. The Court observed : "It is primarily for the Import Control authorities to determine the head or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e. if the construction was perverse then it was a case in which the Court was competent to interfere." Also see, infra, Vol. II, "Patent Error of Law" under Judicial Control. 8 AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]: (1976) 2 SCC 241. 9 For discussion on this tribunal, see, under sub-heading : 'Income Tax Appellate Tribunal' under heading 'Some select Adjudicatory Bodies', infra this chapter. 10 infra, this Chapter. 11 See, Panel Narshi Thakershi v. Pradumansinghji Arjunsinghji, AIR 1970 SC 1273 : (1971) 3 SCC 844. In this case, HEDGE, J., made the following biting comment: "This case illustrates the consequence of entrusting judicial work to those who had no judicial training and background. A simple question whether the family of the respondent was divided or undivided has been pending for about 20 years." 12 See, supra, Chapters IX and X. 13 Supra, Chapter IX and infra, Chapter XV. 14 Supra, Chapter X and infra, Chapter XIV. In this Chapter, the term 'natural justice' also includes 'fairness' unless the context indicates otherwise. 15 Supra, Chapter IX; also see, infra, Chapter XV. 16 Supra, Chapter IV. 17 See, supra, Chapter X; also, infra, Chapter XIV. 18 Supra, Chapter X; also infra, Chapter XIV. 19 See, supra, Chapter X. 20 Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1 [LNIND 2004 SC 1556] [LNIND 2004 SC 1556] [LNIND 2004 SC 1556],

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41 (para 106) : AIR 2004 SC 2836 [LNIND 2004 SC 1556] [LNIND 2004 SC 1556] [LNIND 2004 SC 1556]. 21 Reserve Bank of India v. C.L. Toora, (2004) 4 SCC 657 [LNIND 2004 SC 435] [LNIND 2004 SC 435] [LNIND 2004 SC 435], 660 (para 6) : AIR 2004 SC 2076 [LNIND 2004 SC 435] [LNIND 2004 SC 435] [LNIND 2004 SC 435]. 22 The scope of the review power depends on the statutory language in which it is couched: see, Mirza Muzamdar Hussain v. D. Bhaskara Raddy, AIR 1988 AP 13; Surinder Singh v. Central Govt., AIR 1986 SC 2166 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352], 2170 : (1986) 4 SCC 667 [LNIND 1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352]. 23 infra, e.g. Central Administrative Tribunal, Railway Claims Tribunal. 24 infra, e.g. Income Tax Appellate Tribunal. 25 infra, Vol. II, under Judicial Control : Privative clauses. 26 infra, Vol. II, under Judicial Control. 27 infra, this Chapter. 28 See, the Monopolies and Restrictive Trade Practices Act, infra. Appellate powers are exercised by the Central Government under the Indian Companies Act in the matter of refusal of registration of shares by a company; infra. 29 Supra, Chapter X, under Institutional Decisions. 30 Supra, Chapter X, under heading : 'Institutional Decisions'. 31 See, infra, Chapter XXI; also, supra, Chapter X. 32 See under heading : 'Institutional Decisions', supra, Chapter X. 33 See below. 34 For some examples thereof see, Chapter XI, supra, under 'Policy Bias'. 35 On this point, see, infra, Vol. II, under Judicial Control. 36 See, the Central Administrative Tribunal, infra, this chapter. 37 See, the Customs & Excise Revenues Tribunal, infra, this chapter. 38 See, the State Transport Appellate Tribunal, infra, this chapter. 39 See, the Monopolies and Restrictive Trade Practices Commission, infra, this chapter. 40 See, infra, Vol. II, under Judicial Control. 41 JACKSON, Machinery of Justice in England, 351 (1967). 42 See, 'Policy Bias', Chapter XI, supra. 43 Report of the Justice--All Souls Review Committee, Administrative Justice, 212 (1988). 44 Report of Committee on Administrative Tribunal and Enquiries, 9 (1957). Also see, supra Chapter XI. under 'Policy Bias'. 45 Thus, the Constitution of India gives a tenure until the age of 65 to the Supreme Court Judges, and up to 62 to the High Court Judges. They can only be removed from office for proved misbehaviour or incapacity in accordance with the special procedure prescribed in Arts. 124 and 217 of the Constitution. The Constitutional provisions (Arts. 233-237) with regard to the lower judiciary are, however, not as articulate as those which deal with the Supreme Court and the High Courts, but they do give some security to the lower judiciary. Without going into the details, it may be stated here that district judges are to be appointed by the Governor of a State either in consultation with or on the recommendation of the High Court. Appointment of other members of the judicial service of the State is to be made by the Governor in accordance with the rules made in consultation with the High Court and the State Public Service Commission. Posting and promotion of the district judges are to be made by the Governor in consultation with the High Court. Apart from this, the High Court has exclusive "control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge." However, since the separation of magistracy from the executive had not taken place in some States at the time of the Constitution making, the Constitution did not place magistrates under the control of the High Courts, but left it to the Governor of a State to extend to them the provisions of Arts. 33 to 236. For details, see M.P. JAIN, Indian Constitutional Law, Chapters 4 & 8 (1987) : M.P. JAIN, Outlines of Indian Legal History, 299-315, 348-62 (1989); BASU, Shorter Constitution of India, 690-700 (1989). 46 See, next Chapter.

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47 See, S.N. JAIN, Administrative Tribunals in India, Chapter III (ILI, 1977). 48 Ashoka Marketing v. Punjab National Bank, AIR 1991 SC 855 [LNIND 1990 SC 407] [LNIND 1990 SC 407] [LNIND 1990 SC 407]: (1990) 4 SCC 406; Accounting & Secretarial Services v. U.O.I., AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66], 107; also, S.P. Sampat Kumar v. U.O.I., AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124. 49 See, supra. Chapter VIII; S.N. JAIN, Administrative Directions and Quasi-Judicial Bodies, 1965 Pub Law, 217. 50 AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1958 SCJ 728 : (1958) 9 STC 428. 51 See, Siemens Engg. & Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981; Dharamchand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427; Blaze & Central (P.) Ltd. v. U.O.I., AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]; Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh, AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; JAIN, Cases Chapter IX, Sec. J. 52 Supra, Chapter XI. 53 See, supra, Chapter XI, 'Policy Bias'. 54 Supra, Chapter XI; also, Council on Tribunals, First Report, 1 (1960); ROBSON, Justice and Administrative Law Reconsidered, (1979) Current Legal Problems, 107. 55 See under '(xiv) Central Administrative Tribunal', under heading : 'Some select Adjudicatory Bodies', infra, this Chapter. 56 Shivji Nathubhai v. U.O.I., AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13]: 1960 SCJ 579; also see, infra, Dharam Chand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427; Chowgule & Co. v. U.O.I., AIR 1971 SC 2021 : (1971) 3 SCC 162. 57 See, for example, Dharamchand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427; Siemens Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. 58 Franks Committee, Report, 9; see, infra, this chapter, under Franks Committee. 59 Franks Committee, Report, 89. 60 On this point, see, Chapter XIV, infra. 61 Supra, Chapter X, under heading : 'Reasoned Decision'. 62 Supra; Chapter XI, under 'Policy Bias'. 63 See below. 64 See, in this connection, the observations of AHMADI and PUNCHHI, JJ. of the Supreme Court in R.K. Jain v. U.O.I., 65 ELT 320, on the working of the Customs, Excise and Gold Control Appellate Tribunal; also, JAIN, Cases, Chapter XII, Sec. Y. 65 See, supra, Chapter II; also below. 66 Supra, Chapter II. 67 Franks Committee Report, 6. 68 Franks Committee Report, 6. 69 Franks Committee Report, 6, 10. 70 See, supra, Chapter XI, under Policy Bias. 71 infra, this Chapter and Chapter XIV. Also see, supra, Chapter XI, under Policy Bias and Chapter VIII, under Directions. Also see, JAIN, Cases Chapter VII, Sec. C., and Chapter XIII, Secs. J and K. 72 Supra, Chapter II. 73 infra, this chapter. 74 For relevant extracts from the report of the Committee, see, M.P. JAIN, Cases Chapter XII, Sec. B. 75 Franks Committee, Report, 9, 30. 76 Franks Committee Report, 9, 30.

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77 FOULKES, Adm. Law, 127 (1986). 78 FOULKES, Adm. Law, 127 (1986), 10. 79 FOULKES, Adm. Law, 127 (1986), 12. 80 FOULKES, Adm. Law, 127 (1986), 12. 81 FOULKES, Adm. Law, 127 (1986), 13. 82 For relevant extracts from the Franks Committee Report, see, JAIN, Cases Chapter XII, Sec. B. 83 See WADE, Towards Administrative Justice, 82 (1963). 84 The raison d'etre of appointing such a body, in the words of the Franks Committee, was : "Having examined the system and found the basis of it generally right, but having also suggested a great many reforms in matters of detail, the Committee felt the need of some permanent institution to carry on the work which they had started. Otherwise, we should probably continue with the same cycle of events : a strong administrative bias behind these procedures; a gradual accumulation of public discontent; a special committee of inquiry about once every 25 years, to add to the collection on the shelf." Also see, WADE, Towards Administrative Justice, 81 (1962). 85 Franks Committee, Report, 5, 30 and 31. 86 For relevant extracts from the Act, see, JAIN, Cases Chapter XII, Sec. B. 87 For a discussion on OMBUDSMAN, see, infra, Vol. II. 88 GARNER, The Council on Tribunals, 1965 Public Law 321, 335. 89 Annual Report (1985-86), para 2.5. Also see, JAIN, Changing Face of Adm. Law in India & Abroad, 52-53. 90 See the Special Report entitled The Functions of the Council on Tribunals (1980) on the working of the Council on Tribunals and proposals for expansion of its functions. Also, GARNER, The Council on Tribunals, (1965) Pub Law 321; SCHWARTZ & WADE, Legal Control of Adm. Action, 174-180; FOULKES, Adm. Law, 145-50 (1986). 91 Legal Control of Government, 175. Also, WADE, Towards Administrative Justice, 80-95. 92 Franks Committee, Report, paras, 120-126. Also see, infra, under Judicial Control. 1 Justice, Administration under Law (1971). 2 Supra, Chapter II. Also see, M.P. JAIN, Reform of New Zealand Adm. Law, (1983) 25 JILI 297. 3 See SHARPE, J.M., The Administrative Appeals Tribunal and Policy Review (1986). 4 M.P. JAIN, Reform of Administrative Law in Australia, XV J.I.L.I. 185, 203, (1973); M.P. JAIN, Changing Face of Administrative Law in India and Abroad, 64-79 (1982); also see, supra, Chapter II. 5 M.P. JAIN, Reform of Administrative Law in Australia, XV JILI 185, 203, (1973). 6 The Administrative Appeals Tribunal Act, 1975, Ss. 47-58. 7 See, Annual Reports of the Administrative Reivew Council; supra, Chapter II. 8 M.P. JAIN, Changing Face of Administrative Law in India and Abroad, 68-69 (1982). For a description of the functions of the Australian body, see, PEARCE, Commonwealth Administrative Law, 211-14 (1986). 9 Law Comm., XIV Report, 693. For relevant extracts from this report, see, JAIN, Cases Chapter XII, Sec. D. 10 See, infra, this Chapter. 11 See, infra, this Chapter. 12 Siemens Engineering Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. 13 For the text of these Articles, see, JAIN, Cases Chapter XII, Sec. E. 14 For this jurisdiction of the Supreme Court, see, infra, Vol. II, under Judicial Control. 15 "Appropriate Legislature"

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means Parliament or the State Legislature which may be competent to legislate with respect to the concerned matter in accordance with the scheme of distribution of powers under the Constitution. For the scheme of distribution of powers between the Centre and the States: see, M.P. JAIN, Indian Constitutional Law, 241-293 (1987).

16 AIR 1989 SC 1185 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154]: (1989) 2 SCC 177 : 1989 (2) LLJ 57 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154]; JAIN, Cases Chapter XII, Sec. W. 17 S.P. Sampath Kumar v. U.O.I., AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124 : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]; JAIN, Cases Chapter XII, Sec. W. 18 For text of the Act, see, JAIN, Cases Chapter XII, Section W. 19 The Administrative Tribunals (Amendment) Act, 1986, Act 19 of 1986. For Supreme Court' Art. 32 Jurisdiction, see, infra, Vol. II, under Judicial Control. 20 AIR 1980 SC 2056 [LNIND 1980 SC 584] [LNIND 1980 SC 584] [LNIND 1980 SC 584]: (1980) 4 SCC 38; JAIN, Cases Chapter XII. 21 , Minerva Mills Ltd v. U.O.I. AIR 1980 SC 1789 [LNIND 1980 SC 257] [LNIND 1980 SC 257] [LNIND 1980 SC 257]: (1980) 3 SCC 625; see, JAIN, Indian Constitutional Law, 889-890 (1987). 22 S.P. Sampath Kumar v. U.O.I., AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124, 386 at 389 : (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500] : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]. 23 S.P. Sampath Kumar v. U.O.I., AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]at 389 : (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500] : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21], 390. 24 S.P. Sampath Kumar v. U.O.I., AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500], 392 : (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500] : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]. 25 , Sampath Kumar v. Union of India (1987) (2) Supp SCC 734 : JT 1987 (2) SC 626 . In Swaran Singh Lamba v. Union of India, (1994) 4 SCC 152, the question whether appointments made to SAT in Madhya Pradesh without following the procedure of selection by a high power selection committee were valid or not was referred by a three Judge Bench of the Supreme Court to a Constitution Bench for decision. Also see, infra. 26 See, infra, this Chapter. 27 Kesoram Industries Ltd. v. Coal India Ltd., AIR 1993 Cal 78 [LNIND 1992 CAL 331] [LNIND 1992 CAL 331] [LNIND 1992 CAL 331]; JAIN, Cases Chapter XII, Sec. X. 28 For the scheme of Central-State Distribution of Powers, see, JAIN, Indian Constitutional Law, Chapter 10. 29 AIR 1988 Pat 273; JAIN, Cases Chapter XII, Sec. X. 30 See, infra, next Chapter. 31 M.C. Mehta v. U.O.I., AIR 1987 SC 1086 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC 539]: (1987) 1 SCC 395. 32 For relevant extracts from the Report of the Law Commission, see, M.P. JAIN, Cases Chapter XII, Sec. F. 33 AIR 1987 SC 2117 [LNIND 1987 SC 628] [LNIND 1987 SC 628] [LNIND 1987 SC 628]: (1987) 4 SCC 238. 34 The Krishna District Co-op. Society Ltd., Vijaywada v. N.V. Puranchandra Rao, AIR 1987 SC 1960 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536]: (1987) 4 SCC 99 : 1987 (2) LLJ 365 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536]. 35 Law Comm., Forum for National Uniformity in Labour Adjudication, 122nd Report (1987). For extracts from this report, see, JAIN, Cases Chapter XII, Sec. T. 36 Law Comm., Decentralisation of Administration of Justice: Disputes Involving Centres of Higher Education, 123rd Report (1988). 37 For statutory materials and important cases on assessment of income-tax, see, JAIN, Cases Chapter XII, Sec. R.

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38 Act 54 of 1963. 39 S. 119(1) of the Income Tax Act. On directions issued by the Board, see, supra, Chapter VIII. 40 See, the Report of the Direct Taxes Administration Enquiry Committee, (1959). 41 See, Sections 139 to 144 of the Act for procedure of assessment. 42 S. 139(1), (1A). 43 S. 2(7A). 44 S. 143(1)(a). 45 S. 143(2). 46 S. 143(3). 47 S. 144. 48 State of Kerala v. Velukutty, (1966) 60 ITR 239 (SC) : (1966) 17 STC 465; Brij Bhushanlal v. CIT, AIR 1979 SC 209 [LNIND 1978 SC 287] [LNIND 1978 SC 287] [LNIND 1978 SC 287]: (1979) 3 SCC 14 . Also see, CIT v. Ein Shin, (1947) 15 ITR 290. 49 Supra, Chapter IX, 275. Dhakeshwari Cotton Mills Ltd. v. Commr., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: (1954) 26 ITR 775; Mahadayal Premchandra v. Commercial Tax Officer AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1958 SCJ 728. 50 Ss. 147-149 of the ITA. 51 I.T.O. v. Lakhmani Mewal Das, AIR 1976 SC 1753 [LNIND 1976 SC 143] [LNIND 1976 SC 143] [LNIND 1976 SC 143]: (1976) 3 SCC 757; ALA Firm v. CIT, (1991) 189 ITR 285 [LNIND 1991 SC 116] [LNIND 1991 SC 116] [LNIND 1991 SC 116] : (1991) 2 SCC 558 [LNIND 1991 SC 116] [LNIND 1991 SC 116] [LNIND 1991 SC 116]; Phool Chand Bajrang Lal v. I.T.O., AIR 1993 SC 239 : (1993) 4 SCC 77. 52 See, infra, next Chapter, under heading : 'Statute May Exclude Bias', AIR 1975 Raj 74; JAIN, Cases Chapter XIII, Sec. J. 53 See the Report of the Income-tax Investigation Commission, 138-41 (1949); Report of the Taxation Enquiry Commission, Vol. II, 219-20 (1953-55); Report of the Direct Taxes Administration Enquiry Committee, 203-04 (1959); and Report of the Direct Taxes Enquiry Committee, 135 (1971). 54 Report of the Income-Tax Investigation Commission, (1949), 141. Report of the Direct Taxes Administration Committee, 204 (1959). 55 S. 246(1). Before 1987, he was known as the appellate assistant commissioner. 56 S. 246(2). 57 S. 249(1) & (2). 58 S. 249(3). 59 S. 250(5). 60 S. 250(1) & (2). 61 S. 250(4). 62 S. 250(6). 63 S. 251(1)(a). 64 S. 251(1)(b). 65 S. 251(1)(c). 66 Jute Corpn. of India v. CIT, AIR 1991 SC 241 [LNIND 1990 SC 486] [LNIND 1990 SC 486] [LNIND 1990 SC 486]: 1991 Supp (2) SCC 744. Also see, JAIN, Cases Chapter XII, Sec. R. 67 S. 119(1)(b). 68 S. 263(1).

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69 S. 263(1). For a detailed discussion on this provision, see, CHATURVEDI & PITHISARIA, Income Tax Law, Vol. 5, 5540-5576 (IV Ed.) 70 S. 253(1)(c). 71 Dwarka Nath v. I.T.O., AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107]: 1965 (3) SCR 536. 72 See, The Wealth Tax Act, Ss. 2(ca), 2(f), 2(s), and 2(b). 73 S s. 252 to 255 of Income-Tax Act, 1961. See, CHATURVEDI & PITHISARIA, Income Tax Law, Vol., 5, (IV Ed.), 5255-5370. Also See, JAIN, Cases, Sec. R, for these statutory provisions. 74 S. 252(1). 75 S. 252(2). 76 S. 252(2A). 77 S. 252(3). 78 S. 255(1) & (2). 79 S. 255(3). 80 S. 252(4). 81 S. 255(4). 82 Emphasizing upon the need to publish the decisions of the Tribunal, the Direct Tax Laws Committee (Interim Report, 43 (1977)) observed : At present, the important decisions of the tribunal are published by private bodies but there is no authentic publication of such orders. Publication of important orders would go a long way in achieving certain judicial harmony among all the benches in the country and will also enable the taxpayers to secure easily the official views of the final fact finding under the Act. We recommend that the tribunal permits a reliable agency to publish an authentic and full text of its orders which the tribunal regards to be of general importance." 83 S. 253(2). 84 S. 254(1). M.S. Joseph Michael & Bros. v. Income-Tax Appellate Tribunal, (1992) 65 Taxman 195. 85 See, under heading : 'Some Norms Applicable to Adjudicatory Bodies', 'Evidence', Chapter XIV. AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 SCR 499. 86 CIT v. ITAT, (1979) 120 ITR 231 [LNIND 1979 KER 81] [LNIND 1979 KER 81] [LNIND 1979 KER 81]. 87 I.T.O. v. Fagoomal Lakshmichand, (1979) 118 ITR 766 [LNIND 1978 MAD 162] [LNIND 1978 MAD 162] [LNIND 1978 MAD 162]; CIT. v. Income-tax Appellate Tribunal (1979) 120 ITR 231 [LNIND 1979 KER 81] [LNIND 1979 KER 81] [LNIND 1979 KER 81]; JAIN, Cases Chapter XII, Sec. R. 88 I.T.O. v. Murlidhar, AIR 1974 Cal 272 [LNIND 1973 CAL 170] [LNIND 1973 CAL 170] [LNIND 1973 CAL 170]. 89 I.T.O. v. M.K. Mohammed Kunhi, AIR 1969 SC 430 [LNIND 1968 SC 273] [LNIND 1968 SC 273] [LNIND 1968 SC 273]: 1969 (2) SCR 65; JAIN, Cases Chapter XII, Sec. R; CIT v. Bansi Dhar & Sons, AIR 1986 SC 421 [LNIND 1985 SC 364] [LNIND 1985 SC 364] [LNIND 1985 SC 364]: (1986) 1 SCC 523 : (1986) 157 ITR 665 [LNIND 1985 SC 364] [LNIND 1985 SC 364] [LNIND 1985 SC 364]. 90 S. 131. 91 Smart (P.) Ltd. v. I.TA.T., (1990) 49 Taxman 43 [LNIND 1990 DEL 50] [LNIND 1990 DEL 50] [LNIND 1990 DEL 50] (Delhi). 92 Nawaganj Sugar Mills v. CIT., Delhi, AIR 1972 SC 1684 : (1971) 3 SCC 676. Also, C.I.T., Bombay v. Walchand & Co., AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 65 ITR 381; JAIN, Cases Chapter XII, Sec. R. 93 C.I.T. v. Indian Woollen Textiles Mills, AIR 1964 SC 735 [LNIND 1963 SC 257] [LNIND 1963 SC 257] [LNIND 1963 SC 257]: (1964) 51 ITR 91; India Cements v. C.I.T., AIR 1966 SC 1053 [LNIND 1965 SC 356] [LNIND 1965 SC 356] [LNIND 1965 SC 356]: (1966) 60 ITR 52; C.I.T. v. Meenakshi Mills, AIR 1967 SC 819 [LNIND 1966 SC 266] [LNIND 1966 SC 266] [LNIND 1966 SC 266]: 1967 (1) SCR 934; C.I.T. v. Walchand & Co., AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 3 SCR 214 : (1967) 65 ITR 381 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]; Karam Chand Thapar v. C.I.T., AIR 1971 SC 1590 : (1972) 4 SCC 124; C.I.T., Assam v. H.S. Chakravarty, AIR 1975 SC 15 : (1972) 4 SCC 576; J.K. Synthetics v. C.I.T., AIR 1981 SC 1547 : (1981) 3 SCC 154; C.I.T., Calcutta v. Biju Patnaik,, AIR 1986 SC 1428 [LNIND 1986 SC 188] [LNIND 1986 SC 188] [LNIND 1986 SC 188]: (1986) 3 SCC 310.

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94 C.I.T. v. Walchand & Co., AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 3 SCR 214 : (1967) 65 ITR 381 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]. Also see, infra, Vol. II, under Judicial Control. 95 Patnaik & Co. v. C.I.T., AIR 1986 SC 1483 [LNIND 1986 SC 218] [LNIND 1986 SC 218] [LNIND 1986 SC 218], 1485 : (1986) 4 SCC 16 [LNIND 1986 SC 218] [LNIND 1986 SC 218] [LNIND 1986 SC 218]; see, JAIN, Cases Chapter XII, Sec. R. Also, C.I.T. v. Biju Patnaik, AIR 1986 SC 1428 [LNIND 1986 SC 188] [LNIND 1986 SC 188] [LNIND 1986 SC 188]at p 1429 : (1986) 3 SCC 310 [LNIND 1986 SC 188] [LNIND 1986 SC 188] [LNIND 1986 SC 188]. JAIN, Cases Chapter XII, Sec. R. 96 However, under Art. 136 of the Constitiution, an appeal can be taken to the Supreme Court by its special leave. For discussion on Art. 136, see, infra, Vol. II, under Judicial Control. 97 CIT v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633 [LNIND 1961 SC 159] [LNIND 1961 SC 159] [LNIND 1961 SC 159]: (1961) 42 ITR 589; JAIN, Cases Chapter XII, Sec. R. 98 CIT v. Bansi Dhar & Sons, AIR 1986 SC 421 [LNIND 1985 SC 364] [LNIND 1985 SC 364] [LNIND 1985 SC 364]: (1986) 1 SCC 523 : (1986) 157 ITR 665 [LNIND 1985 SC 364] [LNIND 1985 SC 364] [LNIND 1985 SC 364]. 1 Ltd. v. C.I.T., West Bengal, AIR 1972 SC 2315 [LNIND 1971 SC 419] [LNIND 1971 SC 419] [LNIND 1971 SC 419]: (1971) 3 SCC 568. 2 Ss. 256 & 257. For these provisions, see, JAIN, Cases, Vol. XII, Sec. R. 3 S. 261. For further discussion on the reference procedure, see, infra, Vol. II, under Statutory Judicial Remedies. Also see, CHATUIVEDI & PITHISARIA, Income Tax Law, Vol. 5, 5370-5448 (IV Ed.). 4 C.I.T. v. Chandar Bhan, AIR 1966 SC 1490 [LNIND 1966 SC 1] [LNIND 1966 SC 1] [LNIND 1966 SC 1]: (1966) 60 ITR 188. 5 Nawaganj Sugar Mills v. C.I.T., Delhi, AIR 1972 SC 1684 : (1971) 3 SCC 676 .Also, C.I.T., Bombay v. Walchand & Co., AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]: (1967) 3 SCR 214. 6 S. 256(2). 7 S. 260(1). 8 S. 261. 9 S. 260. 10 Venkataraman & Co. Ltd. v. State of Madras, AIR 1966 SC 1089 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND 1965 SC 262]: 1966 (2) SCR 229; Senthilnathan v. State of Madras, (1968) 67 ITR 102, 105. Also, Mysore Breweries v. C.I.T, 1966 ITR 723, 730. 11 J.K. Synthetics v. C.I.T., AIR 1981 SC 1547 : (1981) 3 SCC 154. 12 Report (Choksi Committee), Report, 44 (1977). 13 Report, 174-75 (1978). 14 Law Commission of India, Report on Income Tax Act, 1922 (Twelfth Report) 48 (1958). 15 Report at 81-86 (1958-59). 16 P.B. GAJENDRAGADKAR, Speech made at the Conference of Members of the Income Tax Appellate Tribunal held at Bombay, on March 28, 1964, published in (1964) 1 ITJ 117. 17 See the Souvenir published by the Tribunal on this occasion, and the speeches delivered at the celebration in (1966) 1 ITJ 93. 18 C.R. PATTABHI RAMAN, Minister in the Ministry of Law, Speech delivered at the Silver Jubilee Celebrations, (1966) 1 ITJ 93. 19 SAMPATH IYENGAR, speech delivered at the Silver Jubilee Celebrations, (1966) 1 ITJ 93, at 103. 20 For discussion on the Writ Jurisdiction of the High Courts, see, infra, under Judicial Control. 21 Law Comm., 115th Report (1986). For relevant extracts from the Report, see, M.P. JAIN, Cases Chapter XII, Sec. F. 22 Law Comm., 115th Report, para 2.37. 23 Law Commr., 115th Report (1986), para 2.29. 24 For comments on Ss 245A-245M, I.T. Act, see, CHATURVEDI & PITHISARIA, Income Tax Law, Vol. 5 (IV Ed.), at

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5053-5120 (IV Ed.). For the statutory provisions see, JAIN, Cases Chapter XII, Sec. R. For discussion on the question of jurisdiction of the Settlement Comm., see, Rasik Ramji Kamani v. S.K. Tripathi, (1993) 203 ITR 851; CIT v. Express Newspapers Ltd., AIR 1994 SC 1389 : (1994) 2 SCC 374 : 1994 (I) Scale 39; JAIN, Cases Chapter XII, Sec. R. 25 For relevant extracts from this report, see, JAIN, Cases Chapter XII, Sec. R. 26 Krishnan v. Settlement Commission, 1989 Tax LR 1152; JAIN, Cases, Chapter XII, Sec. R. 27 Ss. 193 and 196, IPC, provide for punishment for intentionally giving false evidence in a judicial proceeding. For discussion on these provisions see, infra. 28 The Supreme Court has explained the purport of these provisions in : I.T. Commr., Calcutta v. B.N. Bhattacharjee, AIR 1979 SC 1724 : (1979) 4 SCC 121; also, infra, JAIN, Cases, Chapter XII, See. R; R.B. Shreeram Durga Prasad v. Settlement Commission, AIR 1989 SC 1038 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710]: (1989) (1) SCC 628, 630; JAIN, Cases, Chapter VIII, Sec. F (xxi), 608. On the working of the Commission, see, Rasik Ramji Kamani v. S.K. Tripathi (1993) 203 ITR 851; JAIN, Cases Chapter XII, Sec. R. 29 S. 245 D (6). 30 S. 245 E. 31 S. 245 F. 32 See the cases I.T.C., Calcutta v. B.N. Bhattacharjee, AIR 1979 SC 1724 : (1980) 3 SCC 54; R.B. Shreeram Durga Prasad v. Settlement Commission, (1989) (1) SCC 630 : (1989) 1 SCC 264 [LNIND 1988 SC 564] [LNIND 1988 SC 564] [LNIND 1988 SC 564]; Rasik Ramji Kamani v. S.K. Tripathi, (1993) 203 ITR 851. Also, Jyotendra Singh Ji v. S.I. Tripathi, (1993) 68 Taxman 59; JAIN, Cases Chapter XII, Sec R. 33 N. Krishnan v. Settlement Commission, 1989 Tax LR 1152. 34 Swadeshi Industries v. Income Tax Settlement Comm., (1993) 69 Taxman 21; JAIN, Cases Chapter XII, Sec. R. For discussion on Arts. 136, 226 and 227, see, infra, Vol. II, under Judicial Control. 35 For assessment of excise and customs duties, see, Travancare Rayons, JAIN, Cases, Chapter IX, 747; Siemens Engg. and Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981 .JAIN, Cases Chapter IX, 749. 36 S. 17. 37 Siemens Engg. and Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981; Ram Durga Pd. v. U.O.I., (1962) PLR 541 ;cf. Glaxo Laboratories v. Venkateswaran, AIR 1959 Bom 372 [LNIND 1958 BOM 120] [LNIND 1958 BOM 120] [LNIND 1958 BOM 120]. 38 S. 27. 39 S. 122. 40 S. 124. 41 Sewpujanrai Indrasanrai Ltd. v. Collector of Customs, AIR 1958 SC 845 [LNIND 1958 SC 71] [LNIND 1958 SC 71] [LNIND 1958 SC 71]: 1958 Crlj 1255 : 1959 SCR 821 [LNIND 1958 SC 71] [LNIND 1958 SC 71] [LNIND 1958 SC 71]; Indo-China S. Navigation Co. v. Jasjit Singh, AIR 1964 SC 1140 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25]: 1964 (2) Crlj 234 : (1964) 34 Comp Cas 435. 42 Maqbool Hussain v. Bombay, AIR 1953 SC 325 [LNIND 1953 SC 51] [LNIND 1953 SC 51] [LNIND 1953 SC 51]: 1953 Crlj 1432 : 1953 SCR 730 [LNIND 1953 SC 51] [LNIND 1953 SC 51] [LNIND 1953 SC 51]; Leo Roy Frey v. Supdt., District Jail, Amritsar, AIR 1958 SC 119 [LNIND 1957 SC 115] [LNIND 1957 SC 115] [LNIND 1957 SC 115]: 1958 Crlj 260 : 1958 SCR 822 [LNIND 1957 SC 115] [LNIND 1957 SC 115] [LNIND 1957 SC 115]; JAIN, Cases Chapter XII, Sec. S. For commentary on Art. 20(2) of the Constitution, see, JAIN, Indian Constitutional Law, 565-568 (1987). 43 Both these bodies--the Government of India and the Central Board--were held to be tribunals by the Supreme Court for the purposes of Art. 136: Indo-China S. Navigation Co. v. Jasjit Singh, AIR 1964 SC 1140 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25]: (1964) 6 SCR 594 : 1964 (2) Crlj 234 : (1964) 34 Comp Cas 435 at 1146-48 ;also see, infra, Vol. II under Judicial Control. 44 See the Report of the Customs Reorganisation Committee, 81 (1958). 45 A.R.C. Study Team on Administrative Tribunals (1967); Report, I, 42-51. 46 A.R.C. Working Group on Customs and Central Excise Administration, 33-34 (1968). On departmental bias, see, supra, Chapter XI.

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47 AIR 1971 SC 704 : (1971) 3 SCC 170. 48 Bharat Barrel & Drum Mfg. v. Collector of Customs, AIR 1971 SC 704 at 707 : (1971) 3 SCC 170. 49 Siemens Engineering Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981. For extracts from the case, see, JAIN, Cases Chapter IX, 749. 50 AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]at 1789: (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]. 51 AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]at 1790: (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]. Chapter X; JAIN, Cases Chapter IX, Sec. G., 749. 52 Ss. 129, 129A, 129B and 129C of the Customs Act. For a detailed discussion on composition, powers and jurisdiction of this Tribunal, see, S.N. JAIN, The Customs and Appellate Tribunal, XXVIII IJPA 264 (1982). Also see, JAIN, Cases Chapter XII, Sec. S., for the text of these statutory provisions. 53 On ITAT, see, Under heading : 'Income Tax Appellate Tribunal' supra, this chapter. 54 Law Comm., 115th Report, para 3.8. 55 AIR 1993 SC 1769 [LNIND 1993 SC 466] [LNIND 1993 SC 466] [LNIND 1993 SC 466]: (1993) 4 SCC 119 : 1993 (3) SLR 376, JAIN, Cases Chapter XIII, Sec. Y. For the various defects in the tribunal as pointed out by the Supreme Court, see, infra, Chapter XIV. 56 On the question of tribunal autonomy, see, under heading, 'Tribunal' supra this chapter. 57 See, infra, Chapter XIV; JAIN, Cases Chapter XIII, Sec. O. 58 To have an idea of the working of CEGAT, AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]: (1991) 70 Comp Cas 214,reference may be made to U.O.I. v. Paras Laminates (P.) Ltd., AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]: (1990) 4 SCC 453 : (1991) 70 Comp Cas 214; JAIN, Cases Chapter XII, Sec. S; R.K. Jain v. U.O.I., AIR 1993 SC 1769 [LNIND 1993 SC 466] [LNIND 1993 SC 466] [LNIND 1993 SC 466]: (1993) 4 SCC 119 : 1993 (3) SLR 376; Navin Chemicals Mfg. & Trading Co. Ltd. v. Collector of Customs, (1993) 3 Scale 776; JAIN, Cases Chapter XII, Section S. (1993) 4 SCC 320 : JT 1993 (5) SC 362. 59 For extracts from this report, see, JAIN, Cases Chapter XII, Sec. F. 60 The present position in the area of assessment of customs and excise is very unsatisfactory. The Public Accounts Committee in its report did. August 25, 1993, points out that till the end of 1992, about 12705 cases of Central excise and customs were pending in various courts. Of these, 1355 cases have been pending for over ten years and 4495 cases have been pending for a period of between 5 to 10 years. The total amount of revenue involved in litigation was of the order of Rs. 2078 crores in 1989-90 and 2043 crores in 1990-91. 61 infra, Vol. II under Public Sector Enterprises. 62 See, State of West Bengal v. U.O.I., AIR 1963 SC 1241 [LNIND 1962 SC 438] [LNIND 1962 SC 438] [LNIND 1962 SC 438]: 1964 (1) SCR 371, for a controversy regarding the constitutional validity of the Act: JAIN, Indian Constitutional Law, 262, 264, 331, 332. 63 Law Comm., 123rd. Report, 2(1987). 64 For example, S. 17(2) of the Industrial Disputes Act, 1947 says that awards of the labour tribunals are to be final and not to be called in question by any court in any manner whatsoever. Also see, infra, this chapter. On this point, see, further, Vol. II, under Judicial Control: Privative Clauses. 65 National Commission on Labour, Interim Report of the Study Group on Labour Legislation, 18 (1968). 66 National Commission on Labour, Interim Report of the Study Group on Labour Legislation, (1968) at 43. 67 National Commission on Labour, Interim Report of the Study Group on Labour Legislation, (1968) at 27, 43. 68 Report at 318 (1969). 69 A.V. D'Costa v. B.C. Patel, AIR 1955 SC 412 [LNIND 1955 SC 20] [LNIND 1955 SC 20] [LNIND 1955 SC 20]: 1955 SCJ 363; Shri Ambica Mills v. S.B. Bhatt, AIR 1961 SC 970 [LNIND 1960 SC 334] [LNIND 1960 SC 334] [LNIND 1960 SC 334]: 1961 (1) LLJ 1 : 1961 (1) SCJ 643 [LNIND 1960 SC 334] [LNIND 1960 SC 334] [LNIND 1960 SC 334]. 70 For discussion on these authorities, see : Registrar, High Court, Bombay v. S.K. Irani, AIR 1963 Bom 254 [LNIND 1962 BOM 79] [LNIND 1962 BOM 79] [LNIND 1962 BOM 79]. 71 Supra, Chapter X.

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72 C.B. Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042 [LNIND 1969 SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368]: (1970) 1 SCC 43. 73 Rajiyabi v. M.M. & Co., AIR 1970 Bom 278 [LNIND 1969 BOM 31] [LNIND 1969 BOM 31] [LNIND 1969 BOM 31]. 74 See, infra, Vol. II, under Statutory Judicial Control. 75 AIR 1979 MP 121. 76 The authority under the Payment of Wages Act, 1936, has been held not to be subordinate to the High Court within the meaning of S. 115, CPC. See, Sawatram Ramprasad Mills v. Vishnu Pandurang, AIR 1950 Nag 14; H.C.D. Mathur v. E.I.Rly., AIR 1950 All 80 [LNIND 1949 ALL 109] [LNIND 1949 ALL 109] [LNIND 1949 ALL 109]. See further on this point, infra, Vol. II, under Statutory Judicial Control. 77 Shaikh Amir v. Jarder Beg, 1779 MPLJ (notes) 68; Abdul Rashid v. Hanuman Oil & Rice Mill, AIR 1951 Ass 88; Mohanlal v. Fine Knitting Mills Co., AIR 1960 Bom 387 [LNIND 1959 BOM 118] [LNIND 1959 BOM 118] [LNIND 1959 BOM 118]. 78 Rajiyabi v. MM. & Co., AIR 1970 Bom 278 [LNIND 1969 BOM 31] [LNIND 1969 BOM 31] [LNIND 1969 BOM 31]. 79 Also see, infra, Vol. II, under Statutory Judicial Control. 80 General Manager v. Chickabora, (1992) 1 LLJ 717. 81 Robson, Justice and Administrative Law, 211 (3rd ed.); MALLIK, Workmen' Compensation Act and Some Problems of Procedure, 3 JILI 131, 146 (1961). 82 See, infra, Chapter XIV under Contempt of Adjudicatory Bodies; JAIN, Cases Chapter XIII, Sec. O. 83 See Sarpanch, Lonad Grampanchayat v. Ramgiri Gosavi, AIR 1968 SC 222 [LNIND 1967 SC 160] [LNIND 1967 SC 160] [LNIND 1967 SC 160]: 1968 SCJ 789. 84 Sections 74 to 83 of the Act deal with adjudication of disputes and claims. See Fuchs and Jagannadham, Claims Determination and Hearing Procedure under theEmployees' State Insurance Act, 4 JILI 1 (1962). 85 On the lines of the industrial tribunal under the Industrial Disputes Act, 1947, S. Sections 150 of the Merchant Shipping Act, 1958 empowers the Central Government to constitute a tribunal for adjudication of disputes between seamen and their employers. 86 Sections 7 to 21 of the Act deal with the composition and procedure of these bodies. For these provisions, see, JAIN, Cases Chapter XII, Sec. T. 87 S. Sections 10 of the Industrial Disputes Act; see, infra, Chapters XIV and XIX. State of Madras v. C.P. Sarathy, AIR 1953 SC 53 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84]: 1953 (1) LLJ 174 : 1953 SCR 334 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84]; A.S. Production Agencies v. Industrial Tribunal, AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]: (1979) 1 SCC 1; Hochtief Gammon v. Industrial Tribunal, AIR 1964 SC 1746 [LNIND 1964 SC 118] [LNIND 1964 SC 118] [LNIND 1964 SC 118]: 1964 (2) LLJ 460 : 1964 (7) SCR 596 [LNIND 1964 SC 118] [LNIND 1964 SC 118] [LNIND 1964 SC 118] ; JAIN, Cases Chapter XII, Sec. T. Also see cases given in JAIN, Cases Chapter XII, Sec. T and Chapter XIII, Sec. K. 88 Delhi Cloth & Gen. Mills Co. Ltd. v. Their Workmen, AIR 1967 SC 469 [LNIND 1966 SC 261] [LNIND 1966 SC 261] [LNIND 1966 SC 261]: 1967 (1) SCR 882 : (1967) 1 LLJ 423 [LNIND 1966 SC 261] [LNIND 1966 SC 261] [LNIND 1966 SC 261] ; Western India Match Co. Ltd. v. Western India Match Co. Workers' Union, AIR 1970 SC 1205 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]: (1970) 1 SCC 225 : 1970 (2) LLJ 256 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]. Also see, next Chapter. 89 Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484]: 1980 Supp SCC 420 : 1981 (1) LLJ 327 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484]; JAIN, Cases Chapter XIII, Sec. T. 90 S. 36(4) of the Industrial Disputes Act. On this point see, supra, Chapter X. 91 Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal, AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484]: 1980 Supp SCC 420. 92 See, infra, Chapter XIV, 621. 93 For these provisions, see, infra, Vol. II, under Judicial Control. 94 The concept of socio-economic justice has been accepted by the judiciary as the guiding norm for deciding labour disputes, see, Crown Aluminiun: Works v. Their Workmen, AIR 1958 SC 30 [LNIND 1957 SC 106] [LNIND 1957 SC 106] [LNIND 1957 SC 106]. Also, K.N. Joglekar v. B.L. Railway, AIR 1955 Bom 294 [LNIND 1955 BOM 5] [LNIND 1955 BOM 5] [LNIND 1955 BOM 5].

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95 For a discussion on the nature of industrial tribunal, see, Bharat Bank v. Employees of Bharat Bank, AIR 1950 SC 188 [LNIND 1950 SC 4] [LNIND 1950 SC 4] [LNIND 1950 SC 4]: 1950 LLJ 921 : 1950 SCR 459, also, infra, Vol. II, under Art. 136. Also see, JAIN, Cases Chapter XII, Sec. T. 1 For Art. 136 see, infra, Vol. II, under Judicial Control. 2 See, Soloman E. Robinson, Supreme Court and S. Sections 33 of the Industrial Disputes Act, 3 JILI, 161 (1961). See, The Krishna District Co-op. Society Ltd. Vijaywada v. N.V. Puranchandra Rao, AIR 1987 SC 1960 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536]: (1987) 4 SCC 99 : 1987 (2) LLJ 365 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536],for suggestion by the Supreme Court to create such a Tribunal again. 3 Law Commission of India, Reform of Judicial Administration (Fourteenth Report), Vol. 1, pp. 50-51 (1968). 4 The Krishna Dist. Coop. Mfg. Society Ltd. v. Rao, AIR 1987 SC 1960 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536], 1967 : (1987) 4 SCC 99 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536] : (1987) 2 LLJ 365 [LNIND 1987 SC 536] [LNIND 1987 SC 536] [LNIND 1987 SC 536]. 5 Report at 319-336. 6 For relevant extracts from this report, see, JAIN, Cases Chapter XII, Sec. T. 7 For relevant extracts from this report, see JAIN, Cases Chapter XII, Section T. 8 See LEVIN, Hearing Procedures of Three Indian Administrative Agencies, 4 JILI 205 (1962). 9 For the statutory provisions, see, JAIN, Cases Chapter XII, Sec. O. 10 New India Insurance Co. v. Smt. Shanti Misra, AIR 1976 SC 237 : (1975) 2 SCC 840 : (1977) 47 Comp Cas 453; Minu Mehta v. Balkrishna, AIR 1977 SC 1248 [LNIND 1977 SC 63] [LNIND 1977 SC 63] [LNIND 1977 SC 63]: (1977) 2 SCC 441 : (1977) 47 Comp Cas 736. 11 Vinod Gurudas Raicar v. National Insurance Co. Ltd., AIR 1991 SC 2156 [LNIND 1991 SC 435] [LNIND 1991 SC 435] [LNIND 1991 SC 435]: (1991) 4 SCC 333 : (1992) 75 Comp Cas 611. 12 See, infra, Chapter XIV, 584, 585, for these provisions. Also, JAIN, Cases Chapter XIII, Sec. O. 13 In a special leave appeal from the high Court, the Supreme Court quashed a decision of the Claims Tribunal on the ground that it examined the evidence in a perverse manner: Haji Zainullah Khan v. Nagar Mahapalika, (1994) 5 SCC 667 : (1995) 82 Comp Cas 186. 14 Delhi Municipality v. Kuldin, AIR 1970 Del. 31. 15 Shila Wand v. Kishore Chand, AIR 1977 P&H 369; Pritpal Singh v. New Suraj Transport Co. (P.) Ltd., AIR 1974 Punj 39. 16 Following are some of the cases in which various aspects of the working of the Claims Tribunals have been discussed by the High Courts and the Supreme Court: New India Assurance Co. v. Shanti Misra, AIR 1970 All 408; M. Ayyapan v. Moktar Singh, AIR 1970 Mys 67; Municipal Corp. of Delhi v. Subhagwati, AIR 1966 SC 1750 [LNIND 1966 SC 62] [LNIND 1966 SC 62] [LNIND 1966 SC 62]: 1966 (3) SCR 649; Shardaben v. Pandya, AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120]; Kamla Devi v. Kishanchand, AIR 1970 MP 168 [LNIND 1969 MP 96] [LNIND 1969 MP 96] [LNIND 1969 MP 96]; Muncipal Committee, Jullundur City v. Romesh Saggi, AIR 1970 Punj 137; Delhi Municipality v. Kuldin, AIR 1970 Del 31; State of Haryana v. Darshana Devi, AIR 1979 SC 855 [LNIND 1979 SC 114] [LNIND 1979 SC 114] [LNIND 1979 SC 114]: (1979) 2 SCC 236 ; JAIN, Cases Chapter XII, Sec. O; Shamsher Khan v. M.P. Electricity Board, (1987) 11 Ind. Jud. Reports (MP) 422; Sarmaniya Bai v. M.P. Rajya Parivahan Nigam, AIR 1990 MP 306 [LNIND 1990 MP 297] [LNIND 1990 MP 297] [LNIND 1990 MP 297]; JAIN, Cases Chapter XII, Sec. O. 17 State of Haryana v. Smt. Darshana Devi, AIR 1979 SC 855 [LNIND 1979 SC 114] [LNIND 1979 SC 114] [LNIND 1979 SC 114]: (1979) 2 SCC 236. 18 Sarmaniya Bai v. M.P. Rajya Parivahan Nigam, AIR 1990 MP 306 [LNIND 1990 MP 297] [LNIND 1990 MP 297] [LNIND 1990 MP 297]. 19 See, infra, Chapter XIV. Also see, Anirudh Prasad Ambasta v. State of Bihar, AIR 1990 Pat 49. Dushyant Kumar v. Rajasthan State Road Transport Corp., AIR 1990 Raj 152; Darshan Singh v. Ghewarchand, AIR 1993 Raj 126; cf. Barkat Singh v. Hans Raj Pandit, AIR 1985 P&H 263. 20 For relevent provisions of the Act, see, JAIN, Cases Chapter XII, Sec. O. 21 Secretary, R.T.A., Guntur v. F. Rama Rao, AIR 1991 AP 11 [LNIND 1990 AP 199] [LNIND 1990 AP 199] [LNIND 1990 AP 199]; JAIN, Cases. Chapter XII, Sec. O. 22 See, infra, Vol. II, under Judicial Control, on the implications of the "Privative Clauses".

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23 See the Report of the Committee on Transport Policy and Co-ordination, 82 (1966): also. A.R.C. Report of the Study Team on Adm. Tribunals, Vol. II. 43-44 (1968). 24 AIR 1972 All 480. 25 Supra, Chapter VIII, 225. 26 AIR 1987 SC 2272 [LNIND 1987 SC 519] [LNIND 1987 SC 519] [LNIND 1987 SC 519]: (1987) 4 SCC 131; JAIN. Cases, Chapter XII, Sec. O. 27 D. Nataraja Mudaliar v. S.T.A. Madras, AIR 1979 SC 114 [LNIND 1978 SC 225] [LNIND 1978 SC 225] [LNIND 1978 SC 225]: (1978) 4 SCC 290; also see, infra. 28 D. Nataraja Mudaliar v. S.T.A. Madras, AIR 1979 SC 114 [LNIND 1978 SC 225] [LNIND 1978 SC 225] [LNIND 1978 SC 225]at 116 : (1978) 4 SCC 290 [LNIND 1978 SC 225] [LNIND 1978 SC 225] [LNIND 1978 SC 225] at 116. 29 AIR 1986 Pat 59. 30 See, JAIN, Indian Constitutional Law, 424 (1987). 31 For these statutory provisions, see, JAIN, Cases Chapter XII, Sec. M. 32 Ranbir Singh v. Chief Commercial Supdt., AIR 1961 Punj 268. 33 S.N. JAIN, Administratilve Tribunals in India, 12 (ILI, 1977). 34 See, infra, Chapter XIV. 577, in this point. 35 See, infra, Vol. II. under 'Judicial Control'--Privative Clauses, on this point. 36 See under sub-heading : 'Perjury', of heading 'Evidence', Chapter XIV. 37 AIR 1987 SC 2414 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987 SC 683], 2418 : (1988) 1 SCC 86 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987 SC 683]. Also see, infra, Chapter XXII, under Promissory Estoppel. 38 AIR 1971 SC 349 [LNIND 1970 SC 418] [LNIND 1970 SC 418] [LNIND 1970 SC 418]: (1970) 3 SCC 606. 39 For a further discussion of the functions and working of the Tribunal, and the types of problems with which it deals, see, U.O.I. v. Indian Sugar Mills Association, AIR 1968 SC 22 [LNIND 1967 SC 85] [LNIND 1967 SC 85] [LNIND 1967 SC 85]: 1967 (3) SCR 219; Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30]: 1958 SCJ 720; JAIN, Cases Chapter XII, Sec. M; Upper Doab Sugar Mills Ltd. v. S.S.L. Rly., AIR 1963 SC 217 [LNIND 1962 SC 185] [LNIND 1962 SC 185] [LNIND 1962 SC 185]: 1963 (2) SCR 333; JAIN, Cases, JAIN, Cases Chapter XII, Sec. M; U.O.I. v. M.P. Sugar Mills, AIR 1969 SC 630 [LNIND 1968 SC 382] [LNIND 1968 SC 382] [LNIND 1968 SC 382]: (1969) 1 SCC 320. 40 See, supra, this Chapter, under heading : Arts. 323A & 323B of the Indian Constitution. 41 This Act has now been replaced by the Railways Act, 1989 (24 of 1989). For text of the Act, see, JAIN, Cases Chapter XII, Section M. 42 For details of the system as it functioned then, see, U.O.I. v. Ad-hoc Claims Commissioner, AIR 1977 Cal 393 [LNIND 1977 CAL 53] [LNIND 1977 CAL 53] [LNIND 1977 CAL 53]. In this case, the commissioner determined compensation in a manner not authorised or warranted by the relevant law. The High Court quashed the determination. 43 For these statutory provisions, see, JAIN, Cases Chapter XII, Sec. N. 44 This section corresponds to S. 124 of the new Railways Act, 1989. 45 See, infra, Chapter XIV. Also, JAIN, Cases Chapter XIII, Sec. L. 46 A.A. Haja Muniuddin v. Indian Railways, AIR 1993 SC 361 [LNIND 1992 SC 840] [LNIND 1992 SC 840] [LNIND 1992 SC 840]: (1992) 4 SCC 736 JAIN, Cases Chapter XII, Sec. N. 47 Central Coalfields Ltd. v. U.O.I., AIR 1993 Pat. 150. 48 Ratnakar Tanbaji Itankar v. U.O.I., AIR 1994 Bom 132 [LNIND 1993 BOM 673] [LNIND 1993 BOM 673] [LNIND 1993 BOM 673]. Also. U.O.I. v. Sunil Kummr Ghosh, AIR 1984 SC 1737 [LNIND 1984 SC 219] [LNIND 1984 SC 219] [LNIND 1984 SC 219]: (1984) 4 SCC 246. 49 W.B. Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632], 763-64, 747-48 (paras 102) and 66) : AIR 2002 SC 3588 [LNIND 2002 SC 632] [LNIND 2002 SC 632] [LNIND 2002 SC 632].

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50 U.P. State Electricity Board v. Ram Autar, (1996) 8 SCC 506 [LNIND 1996 SC 697] [LNIND 1996 SC 697] [LNIND 1996 SC 697], 508 (para 7). 51 For example, under S. Sections 53 of the Copyright Act, the Registrar can, after making such enquiries as he deems fit, order confiscation of goods imported from abroad infringing a copyright. Such an order of the Registrar has been held to be of a quasi-judicial character: see, Gramophone Co. of India v. Birendra Bahader Pandey, AIR 1984 SC 667 [LNIND 1984 SC 51] [LNIND 1984 SC 51] [LNIND 1984 SC 51], 680 : (1984) 2 SCC 534 [LNIND 1984 SC 51] [LNIND 1984 SC 51] [LNIND 1984 SC 51]. A notification under S. 11 has been held to be of a quasi-legislative nature. 52 For these provisions see, infra, Chapter XIV, under heading : 'Contempt of Adjudicatory Bodies'; also, JAIN, Cases Chapter XIII, Sec. O. 53 For these provisions see, JAIN, Cases Chapter XII, Sec. J. For procedure for investigation of breaches of foreign exchange regulations, see, K.T.M.S. Mohd. v. U.O.I., AIR 1992 SC 1831 [LNIND 1992 SC 362] [LNIND 1992 SC 362] [LNIND 1992 SC 362]: 1992 Crlj 2781 : (1992) 3 SCC 178 [LNIND 1992 SC 362] [LNIND 1992 SC 362] [LNIND 1992 SC 362]. 54 Director, E.D. FER Act v. Alfred James Fernandez, AIR 1987 Ker 179 [LNIND 1986 KER 398] [LNIND 1986 KER 398] [LNIND 1986 KER 398]. 55 Director, E.D., FER Act v. Alfred James Fernandez, AIR 1987 Ker 179 [LNIND 1986 KER 398] [LNIND 1986 KER 398] [LNIND 1986 KER 398]; JAIN, Cases Chapter XII, Sec. J. 56 See, supra, under heading : 'Tribunals', this chapter. 57 Shanti Pershad v. Director of Enforcement, AIR 1962 SC 1764 [LNIND 1962 SC 183] [LNIND 1962 SC 183] [LNIND 1962 SC 183]: 1963 (2) SCR 297 : (1963) Comp Cas 231. See, infra, Vol. II, under Judicial Control for further discussion on Art. 136. 58 Director of Enforcement v. M.C.T.M. Corporation Pvt. Ltd., (1996) 2 SCC 471, 477 (para 7) : AIR 1996 SC 1100. 59 See, supra, Chapter IX, under Natural Justice. 60 See, supra, Chapter IX, and Chapter X, under heading : 'Disclosure of the Hearing/Inquiry Officer' Report'. 61 For details, see Indian Law Institute, Government Regulation of Private Enterprise, 182-230 (1971) ILI, Some Problems of Monopoly and Company Law, 125-235 (1972). 62 For relevant statutory provisions see, JAIN, Cases Chapter XII, Sec. I. 63 Satish Chandra v. U.O.I., AIR 1995 SC 138 : (1994) 5 SCC 495. 64 For a catalogue of powers exercisable by the Board, see, A. Ramaiya, The Companies Act, 89-91 (1988). 65 For explanation of the purport of these provisions see, infra, Chapter XIV and JAIN, Cases Chapter XIII, Sec. O. 66 On Discretionary Powers, see, infra, Chapters XVII, XVIII & XIX. On Natural Justice, see, supra, Chapters IX and X. 67 See, infra, Vol. II. under 'Judicial Control' on this point. 68 Stridewell Leathers (P.) Ltd. v. Bhankeipur Simbhaoli, AIR 1994 SC 158 : (1994) 1 SCC 34 : 1993 (4) Scale 7; JAIN, Cases Chapter XII, Sec. I. 69 Satish Chandra v. U.O.I., AIR 1995 SC 138 : (1994) 5 SCC 495. 70 For further details and the commodities in which the licence cancellation proceedings have been judicialized, see, Indian Law Institute, Administrative Process under the Essential Commodities Act (1964). See extracts from this study in JAIN, Cases Chapter I. 71 For relevant provisions of the Act, see JAIN, Cases Chapter XII, Sec. H. 72 On this point, see, Chapter XIV, under heading : 'Contempt of Adjudicatory Bodies', infra. Also see, JAIN, Cases Chapter XIII, Sec. O. 73 See provisions in Chapters III and IV of the Act. 74 S. 29 of the M.R.T.P. Act, 1969. See, Bombay Oil Industries Ltd. v. Union of India, AIR 1984 SC 160 [LNIND 1983 SC 334] [LNIND 1983 SC 334] [LNIND 1983 SC 334]: (1984) 55 Comp Cas 356; JAIN. Cases, Chapter XII, Sec. Y; Oramco Chemicals Pvt. Ltd. v. Gwalior Rayon Silk Mfg. (Wg.) Co. Ltd., AIR 1987 SC 1564 : (1987) 2 SCC 620; JAIN, Cases Chapter IX, Sec. G, 751. 75 M.R.T.P. Act, Section 55. See, Mahindra & Mahindra Ltd. v. Union of India, AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]at p. 805 : (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59].

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76 The Commission can derive knowledge or information in any manner and from any source, e.g., an anonymous letter, a regular complaint, etc. See, Ballarpur Industries Ltd. v. D.G.I & R., MRTP Comm., AIR 1989 Del 330; JAIN, Cases Chapter XII, Sec. H. 77 The order can be issued under S. 36D(i). For an example of such an order, See, Orbit Electronics (India) (P.) Ltd., In re MRTPC, (1993) 68 Taxman 87; JAIN, Cases Chapter XII, Sec. H. The Commission granted such an order directing the respondent to discontinue the practice of supplying defective machines to the consumers in future: See, JAIN, Cases Chapter XII. Sec. H. 78 Under S. Sections 55, MR TP Act, an appeal can be preferred to the Supreme Court on any of the grounds as specified in S. 100, C.P.C. For a discussion on the scope of S. 55 as well as of S. 13(2), see, Mahindra & Mahindra Ltd. v. U.O.I., AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59], 805 : (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]; JAIN, Case-book, Chapter XII, Sec. Y. 79 For a few examples of such practices taken cognisance of by the Commission, refer to JAIN, Cases Chapter XII, Sec. H. 80 The industries are listed in the First Schedule to the Industries (Development and Regulation) Act, 1951. For relevant provisions of this Act, see, JAIN, Cases, Vol. XII, Sec. L. 81 From an order of eviction of a tenant on the ground of landlord's bona fide necessity, there is no appeal to the Tribunal. Under S. 25B(8) of the Delhi Rent Control Act, 1958, a revision lies to the High Court from such an order. This power of the High Court is broader than that under S. 115, CPC. Where an application is made to the High Court on revision, the Controller may exercise the power of review according to O. XLVII. CPC. 82 S.N. JAIN, Administrative Tribunals, in India (1977). 83 See, Prabhakaran Nair v. State of Tamil Nadu, AIR 1987 SC 2117 [LNIND 1987 SC 628] [LNIND 1987 SC 628] [LNIND 1987 SC 628]: (1987) 4 SCC 238. 84 For relevant provisions of the Act, see, JAIN, Cases Chapter XII, Sec. G. 85 Adi Pherozshah Gandhi v. H.M. Seervai, Adv. Gen., Maharashtra, AIR 1971 SC 385 [LNIND 1970 SC 332] [LNIND 1970 SC 332] [LNIND 1970 SC 332]: (1970) 2 SCC 484; Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242 [LNIND 1975 SC 378] [LNIND 1975 SC 378] [LNIND 1975 SC 378]: (1976) 2 SCC 291; Nandalal Khodidas Barot v. Bar Council of Gujarat, AIR 1981 SC 477 : 1980 Supp SCC 318; Maghraj Calla v. Khajodi Mal, AIR 1994 Raj 11. 86 AIR 1989 SC 245 : JT 1988 (4) SC 376; See JAIN, Cases Chapter XII, Sec. G. 87 Ss. 36B and 36B(1) of the Advocates Act. Also see, Karnataka State Bar Council v. Sri H. Subramanya Jois, AIR 1993 Kant 7 [LNIND 1992 KANT 113] [LNIND 1992 KANT 113] [LNIND 1992 KANT 113]; JAIN. Cases, Chapter XII, Sec G. 88 On the scope of the appellate power of the disciplinary committee of the Bar Council, see, Narendra Singh v. Chhotey Singh, AIR 1983 SC 990, 992 : (1983) 4 SCC 131; JAIN, Cases Chapter XII, Sec. G. 89 Sec. 38. 90 Bar Council, Maharashtra v. M.V. Dabholkar, AIR 1975 SC 2092 [LNIND 1975 SC 272] [LNIND 1975 SC 272] [LNIND 1975 SC 272]: (1975) 2 SCC 702. 91 O.N. Mohindroo v. District Judge, Delhi, AIR 1971 SC 107 [LNIND 1970 SC 343] [LNIND 1970 SC 343] [LNIND 1970 SC 343]: (1971) 3 SCC 5; JAIN, Cases Chapter XII, Sec G. 92 P.D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110 [LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319]: (1984) 2 SCC 556. 93 For scope of the review power, see, B.L. Samdaria v. Harak Chand JAIN, AIR 1990 SC 2213. 94 See, Institute of Chartered Accountants v. L.K. Ratna, AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]at p. 72 : (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]; also, JAIN, Cases Chapter IX, Sec. H. 786. 95 B. Shankaranand v. Common Cause, (1996) 8 SCC 674, 677 (paras 5 and 6). 96 Also the Coconut Development Board Act, 1979, provides for the creation of a board to promote and develop the coconut industry. 97 AIR 1980 SC 2056 [LNIND 1980 SC 584] [LNIND 1980 SC 584] [LNIND 1980 SC 584]: (1980) 4 SCC 38, see below. 98 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124 : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]; JAIN, Cases Chapter XII, Sec. W.

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99 For the provisions of the Act of 1985 and the Amendment Acts, see, JAIN, Cases Chapter XII, Sec. W. 1 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124 : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]. 2 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124 : (1987) 1 LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]. 3 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124 : 1987 (1) LLJ 128 [LNIND 1988 MP 21] [LNIND 1988 MP 21] [LNIND 1988 MP 21]. 4 JT 1987 (2) SC 626 : 1987 Supp SCC 734; JAIN, Cases Chapter XII, Sec. W. 5 AIR 1989 SC 2218 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398]: (1989) 4 SCC 664 : 1989 (4) SLR 220 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398] .For rule against bias, see, supra. Chapter XI. 6 On this point see, infra, Vol. II, under Judicial Control: Writs. 7 AIR 1984 SC 1527 [LNIND 1984 SC 175] [LNIND 1984 SC 175] [LNIND 1984 SC 175]: (1984) 4 SCC 329 : 1984 (2) SLR 555. The provisional seniority list was drawn up on March 22, 1971, and the petitions to challenge the same were filed in 1983. The Supreme Court rejected the argument that the petitioners were guilty of laches. The respondents had not finalised the seniority list for more than 12 years. The petitioners went on making representations after representations without yielding any response or reply. The petitioners belonged to the lower echelons of service and it was not difficult to visualize that they would find it extremely difficult to rush to the Court. 8 AIR 1990 SC 10 [LNIND 1989 SC 436] [LNIND 1989 SC 436] [LNIND 1989 SC 436]: (1989) 4 SCC 582 : 1989 (7) SLR 449. 9 U.O.I. v. Deep Chand Pandey, AIR 1993 SC 382 : (1992) 4 SCC 432 : 1992 (5) SLR 341; JAIN, Cases Chapter XII, Sec. W. 10 For discussion of these constitutional provisions, see, infra, Vol. II, under Judicial Control. 11 On Art. 226, see, infra, Vol. 11. under Judicial Control. 12 The Supreme Court observed in Council of Scientific & Industrial Research v. K.G.S. Bhatt, AIR 1989 SC 1972 [LNIND 1989 SC 420] [LNIND 1989 SC 420] [LNIND 1989 SC 420],1975 : (1989) 4 SCC 635 [LNIND 1989 SC 420] [LNIND 1989 SC 420] [LNIND 1989 SC 420] : 1990 (1) LLJ 246 [LNIND 1989 SC 420] [LNIND 1989 SC 420] [LNIND 1989 SC 420]; JAIN, Cases. Sec. W. "The Tribunal may fall into some legal errors but if substantial injustice has been rendered to a person, this Court will not interfere with such a decision.... even if legal flaws might be electronically detected in the order of the Tribunal..., this Court will not interfere unless there is manifest injustice or substantial question of public importance." Also see, Rashpal Malhotra v. Satya Rajput, AIR 1987 SC 2235 [LNIND 1987 SC 643] [LNIND 1987 SC 643] [LNIND 1987 SC 643]: (1987) 4 SCC 391; also, infra, Vol. II, under Judicial Control. 13 For a critique of the Act, see, K.I. VIBHUTE, Administrative Tribunals and the High Courts : A Plea for Judicial Review, (1987) 29 JILL, 524. Also see, infra, Vol. II, under Judicial Control. 14 AIR 1987 SC 357 [LNIND 1986 SC 528] [LNIND 1986 SC 528] [LNIND 1986 SC 528]: (1987) 1 SCC 422 : 1987 (1) LLJ 255 [LNIND 1986 SC 528] [LNIND 1986 SC 528] [LNIND 1986 SC 528]; JAIN, Cases Chapter XII, Sec. W 15 U.O.I. v. Parma Nand, AIR 1989 SC 1185 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154]: (1989) 2 SCC 177 : 1989 (2) LLJ 57 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154]; JAIN, Cases Chapter XII, Sec. W. 16 See, infra, Chapter XIX, under Proportionality. For further comments on this matter, see, ALICE JACOB, Bar on Tribunal' Discretion to examine the adequacy of Punishment in Disciplinary Cases, 31 JILI, 250; S.N. SINGH, Adm Law in (1989) 2 ASIL, 377-381. 17 Govt. of Tamil Nadu v. A. Rajapandian, AIR 1995 SC 561 [LNIND 1994 SC 1572] [LNIND 1994 SC 1572] [LNIND 1994 SC 1572]: (1995) 1 SCC 216, 217 : 1995 (1) LLJ 953. For discussion on the High Court's power of Judicial Review under Art. 226, see, infra, Vol. II, under Judicial Control. 18 AIR 1993 SC 2444 [LNIND 1993 SC 399] [LNIND 1993 SC 399] [LNIND 1993 SC 399]: (1993) 4 SCC 357 : 1993 (2) LLJ 626 [LNIND 1993 SC 399] [LNIND 1993 SC 399] [LNIND 1993 SC 399]; JAIN, Cases Chapter XII, Sec. W. 19 Also see, U.O.I. v. Upendra Singh, (1994) 3 SCC 357 [LNIND 1994 SC 238] [LNIND 1994 SC 238] [LNIND 1994 SC 238] at 361 : 1994 (1) LLJ 808 : JT 1994 (1) SC 658 [LNIND 1994 SC 238] [LNIND 1994 SC 238] [LNIND 1994 SC 238]. 20 On discretionary decisions, see, infra, Chapters XVII-XIX. 21 State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 : (1994) 4 SCC 126 : 1995 (1) LLJ 568. 22 U.O.I. v. A.N. Saxena, AIR 1992 SC 1233 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284]: 1993 (2) LLJ 747 : (1992) 3 SCC 124 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284].

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23 AIR 1990 SC 2263 [LNIND 1990 SC 444] [LNIND 1990 SC 444] [LNIND 1990 SC 444]: (1990) 4 SCC 501 : 1990 (5) SLR 1; JAIN, Cases, Sec. W. 24 Krishna Sahai v. U.P.; AIR 1990 SC 1137 [LNIND 1990 SC 886] [LNIND 1990 SC 886] [LNIND 1990 SC 886]: (1990) 2 SCC 673 : 1990 (2) LLJ 384 [LNIND 1990 SC 186] [LNIND 1990 SC 186] [LNIND 1990 SC 186]; Rejendra Singh Yadav v. U.P., (1990)2 SCC 763 [LNIND 1990 SC 187] [LNIND 1990 SC 187] [LNIND 1990 SC 187] : JT 1990 (2) SC 438 [LNIND 1990 SC 187] [LNIND 1990 SC 187] [LNIND 1990 SC 187]: 1990 (4) SLR 188; JAIN, Cases Chapter XII, Sec. W. 25 State of T.N. v. S. Thangaval, (1997) 2 SCC 349 [LNIND 1996 SC 2021] [LNIND 1996 SC 2021] [LNIND 1996 SC 2021], 351 (para 6) : AIR 1997 SC 2283 [LNIND 1996 SC 2021] [LNIND 1996 SC 2021] [LNIND 1996 SC 2021]. 26 The MR TP Act was amended in 1984. Ss. 36A to 36E were added to the Act to deal with unfair trade practices. This aspect has already neen discussed, see, supra under Economic Regulation. 27 R.N. NAYAK, Consumer Protection Law, XXII Annual Survey of Indian Law, 741 (1986); S.N. SINGH, Consumer Protection Legislation : A Critique, (1987) 29 JILI 380. For relevant provisions of the Consumer Protection Act,see, JAIN, Cases Chapter XII, Sec. K. 28 See, infra, under heading : 'Contempt of Adjudicatory Bodies.' Chapter XIV, and also JAIN, Cases Chapter XIII, Sec. O. 29 National Diary Development Board v. Consumer Protection Council, 1991(2) CPR 118. 30 S.P. Thirumala Rao v. M.D. Karnataka SRT, 1991 (1) CPJ 641. 31 (1994) 4 SCC 225 [LNIND 1994 SC 546] [LNIND 1994 SC 546] [LNIND 1994 SC 546], 228 : (1994) 81 Comp Cas 318. 32 Calcutta Metropolitan Development Authority v. U.O.I., AIR 1993 Cal 5; JAIN, Cases Chapter XII, Sec. K. 33 1993 (4) Scale 370; AIR 1994 SC 787 [LNIND 1993 SC 946] [LNIND 1993 SC 946] [LNIND 1993 SC 946]: (1994) 1 SCC 243 : (1994) 80 Comp Cas 714; JAIN, Cases Chapter XII, Sec. W. 34 See Tulasi Enterprises v. A.P. State Consumer Comm., Hyderabad, AIR 1993 AP 326; Ansal Properties and Industries (P.) Ltd. v. Shri Chandra Bhan Kohli, (1991) 1 CPJ 679; A.V. Georgekutty v. State of Kerala, AIR 1994 Ker 19 [LNIND 1993 KER 106] [LNIND 1993 KER 106] [LNIND 1993 KER 106]. 35 AIR 1993 Cal 5 : (1992) 3 SCC 124 : 1993 (2) LLJ 747 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284]. 36 For discussion on Art. 226, see. infra, Vol. II, under Judicial Control. 37 For the jurisdiction of the High Courts under Art. 227, see, infra, Vol. II, under Judicial Control. 38 N.K. Modi v. Fair Air Engineers Pvt. Ltd., (1993)1 CPJ 5 (NC). 39 Common Cause, A Registered Society v. U.O.I, AIR 1993 SC 1403 : JT 1993 (1) SC 67; JAIN, Cases Chapter XII, Sec. K. For discussion of the provisions of the Consumer Protection Act,see D.N. SARAF, Some Facets of Consumer Justice Through Consumer Disputes Redressal Agencies, (1992) 34 JILI, 28. On public interest Litigation, see, infra, Vol. II, under Judicial Control. 40 See, the Financial Times, dtd. 29 Aug. 94.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XIV ADMINISTRATIVE ADJUDICATION (II)

CHAPTER XIV ADMINISTRATIVE ADJUDICATION (II) 1. SOME NORMS APPLICABLE TO ADJUDICATORY BODIES All adjudicatory bodies are bound to abide by the principles of natural justice when the parent Act under which a body is functioning and the rules made thereunder are silent as regards the procedure to be followed by the concerned body.1 Besides, there are a number of other norms applicable to these bodies which have

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been developed by the courts over a period of time. These norms are mentioned here. 2. EVIDENCE Questions often arise regarding the probity and quality of evidence on which an adjudicatory body can base its conclusions of fact. A proposition has become well established by now, viz.that the Indian Evidence Act, 1872, does not, as such, formally apply to adjudicatory bodies.2 Therefore an adjudicatory body is not bound to follow strictly the rules of evidence as contained in the Evidence Act.3 The reason is that to require these bodies to comply with all the rules of evidence applicable to court proceedings would defeat some of the important reasons for giving to such bodies, rather than to the ordinary courts, responsibility for settling certain types of disputes. One of these reasons is the desire for expeditious and inexpensive decision-making by bodies whose procedures are sufficiently informal and non-technical. The Supreme Court has emphasized upon this point several times. For example, in Dhakeshwari Cotton Mills Ltd. v. CIT,4 the Court stated that the Income-tax officer "is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a court of law." Union of India v. Varma5 referred to an enquiry into the misconduct of a public servant : he complained that he was not allowed to cross-examine witnesses. It however turned out that the evidence was recorded in his presence and that he was allowed to put questions. No doubt, the procedure prescribed in the Evidence Act--first requiring chief examination of the witness and then to allow the delinquent to cross-examine him--was not followed, but the enquiry officer took upon himself from the very start to cross-examine witnesses. It was argued that this method would violate the well recognised rules of procedure. The Supreme Court however ruled that the procedure was valid although evidence was not taken in the mode prescribed in the Evidence Act. The Court said that the Evidence Act as such has no application to enquiries conducted by quasi-judicial bodies. In a disciplinary enquiry, rules of natural justice have to be followed. If this is done, then the enquiry "is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed."6 The Court went on to say :7 "The law requires that such tribunals should observe rules of natural justice in the conduct of the inquiry and if they do so, their decision is 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."

The Supreme Court has stated that in proceedings for confiscation of goods under S. 167(8) of the Sea Customs Act, 1878, the function of weighing evidence, or considering its sufficiency, is the business of the collector or the appellate authority which is the final tribunal of facts. There may not be any direct evidence, but only circumstantial evidence, of illicit importation of goods before the collector. Even if the circumstantial evidence is not adequate to establish the smuggled character of the goods, the court would not interfere. So long as the collector's appreciation of the circumstantial evidence before him was not illegal, perverse or devoid of common sense, or contrary to the rules of natural justice, the findings need not be disturbed. The department would have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour as regards the existence of the facts sought to be proved. The findings would however be bad if there is no evidence to support the same.8 But, while strict rules of evidence may not be applicable to quasi-judicial bodies, and they do enjoy a good deal of flexibility in the matter, this does not mean that such a body is free to rely on any evidence irrespective of its probity and quality. Questions may thus be raised about the probity and quality of the evidence on which an adjudicatory body bases its findings of fact. The Supreme Court has clarified this point in B.E. Supply Co. v. The Workmen9 in the context of industrial adjudication. The Court has insisted that the application of the principles of natural justice does not imply that what is not evidence can be acted upon by a quasi-judicial body. It does not mean that where issues are seriously contested and have to be established and proved, the requirements relating to proof can be dispensed with. On the other hand, what it means is that "no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they

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are sought to be used." The Court has stated further that when a document is produced in a court or a tribunal, the question which naturally arises is, is it a genuine document, what are its contents and are the statements contained therein true? For example, a balance-sheet of profit and loss accounts does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry, the writer must be produced or his affidavit in, respect thereof be filed and an opportunity afforded to the opposite party who challenges the fact. This is both in accordance with the principles of natural justice and the procedure under Order XIX, CPC, and the Evidence Act both of which incorporate these general principles. The Court has stated in this regard : "Even if all technicalities of the Evidence Act are not strictly applicable except in so far as S. Sections 11 of the Industrial Disputes Act, 1947, and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection it is incumbent on the tribunal to give inspection in so far as that is relevant to the enquiry".

Some of the policies and principles underlying the Indian Evidence Act may be imported into the area of administrative adjudication on the basis of fairness, as is clear from the above extract, but, by and large, the proceedings of an adjudicatory body have to be informal. All materials which are logically probative to a prudent mind are admissible in evidence before such a body.10 Thus, hearsay evidence of high probative value can be received by adjudicatory bodies. Lord DENNING said in Miller11 that there is no reason why a tribunal cannot admit hearsay where it can fairly be regarded as admissible. "Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law." Earlier in India the Supreme Court showed some resistance to a tribunal relying solely on hearsay evidence, As the Court observed in Jagannath,12 a tribunal even though not bound by formal rules of procedure and evidence, "it cannot rely on evidence which is purely hearsay, because to do so in an inquiry of this nature would be contrary to rules of equity and natural justice." To the same effect were its observations in B.E. Supply noted above.13 But now the courts' attitude has become somewhat more flexible on this point. In Ram Chander14 the question was whether in a disciplinary enquiry reliance could be placed on hearsay evidence. The Punjab and Haryana High Court refused to read the Supreme Court's observations in Jagannath as totally excluding hearsay evidence in domestic enquiries. The court explained that what the Supreme Court was emphasizing upon was the general unreliability of hearsay evidence. If such evidence was "logically probative" it could be relied upon by an enquiry officer. The probative value of such evidence would depend on the circumstances of the case. The High Court, thus, ruled :15 "While there is no bar against the reception of hearsay evidence by domestic tribunals, the extent to which such evidence may be received and used must depend on the facts and circumstances of the case and the principles of natural justice."

Now the Supreme Court has itself clarified the position on this point. In State of Haryana v. Rattan Singh,16 the question was whether in a disciplinary enquiry, reliance can be placed on hearsay evidence. Answering in the affirmative, the Court pointed out that "in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply." All materials which are logically probative for a prudent mind are permissible. There is no ALLERGY to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and tribunals should be careful in evaluating such evidence and should not glibly swallow what is strictly speaking not relevant under the Evidence Act. The Court emphasized that sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. The test to apply is : was there some evidence or was there no evidence--not in the sense of technical rules governing regular court proceedings, but in a fair commonsense way as men of understanding and wordly wisdom will accept? Absence of any evidence in this sense in support of a finding is certainly a matter for a court to look into as it amounts to "an error of law apparent on the record."17 In the instant case, the Haryana Roadways--a State Transport undertaking--dismissed an employee from service after holding an inquiry. The Supreme Court found that there was some evidence having relevance to the charge levelled against the respondent and, therefore, the Court refused to hold the order invalid on that

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ground. However, like any other evidence,18 hearsay evidence has to be disclosed to the concerned party so that he may contradict the same if he can.19 In Kishinchand,20 the Supreme Court quashed the findings of the Income Tax Appellate Tribunal against the assessee as these were based on hearsay and not on any material evidence, and the evidence was not disclosed to the assessee and so he could not contradict the same. No reliance could thus be placed on such evidence. Although the proceedings under the Income-tax law are not governed by strict rules of evidence, yet, before the income-tax authorities could rely upon any evidence, they are bound to produce the same before the assessee who could then seek to controvert it. It has been emphasized again and again that adjudicatory bodies cannot base their conclusions on pure conjectures and surmises21 without there being any legal evidence to support it. An order based on pure assumptions and conjectures and on no evidence whatsoever is invalid and the order will be quashed on this ground alone.22 Recently, the Supreme Court has stated : "There is no manner of doubt that in any proceedings, judicial or quasi-judicial, there is requirement of proof and such requirement cannot be substituted by surmise and conjecture."23 In Dhakeshwari,24 the Supreme Court emphasized that the ITO while making the assessment, was not entitled to make a pure guess and act on suspicion and make an assessment without reference to any evidence or material at all. There must be something more than bare suspicion to support the assessment. In several cases, the Supreme Court has set aside the income-tax assessment order on the ground that it was based on bare suspicion, conjectures and surmises.25 Assessment of tax to the "best judgment" has to rest on some relevant and dependable data; it is liable to be set aside if it is based merely on imagination or on data which smacks of arbitrariness.26 In Shinde v. State of Mysore,27 the Supreme Court refused to hold that an enquiry would be vitiated by the inquiry officer relying on some statements made earlier by some witnesses but from which they later resiled. The Court emphasized that "departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required."28 Nevertheless, the evidence relied upon should be of some probative value and this is a flexible standard depending on the facts and circumstances of each case. The courts do not ordinarily probe into the sufficiency of evidence accepted for proving a finding of fact, but if the finding is based on mere conjectures and surmises and on no other evidence, then the courts can interfere and quash the finding. In Tribhuban,29 the Supreme Court quashed an order passed by the Chief Settlement Commissioner in exercise of his revisional power under S. 5(b) of the Displaced Persons (Claims) Supplementary Act, 1954, on the ground that the Commissioner had "at more places than one based his conclusions on pure conjectures and surmises without there being any legal evidence on the record to support them." In Parry,30 the Supreme Court ruled that when some of the findings by a tribunal which influenced its decision were beyond its competence, and the rest were either speculative or contrary to evidence on record, then the same were liable to be set aside by the High Court on a writ petition for certiorari. But, if on the other hand, there is some legal evidence before the adjudicatory body, even though some of it may be irrelevant, the court would not interfere if the finding can be sustained on the rest of the evidence.31 But if the entire evidence is worthless it is equal to having no evidence warranting judicial intervention.32 In the U.S.A., the "residuum rule" is followed in relation to hearsay evidence.33 While an administrative adjudicatory body is not limited by the Evidence Act, and it may, in its discretion, accept any evidence which is offered, "still in the end there must be a residuum of legal evidence to support the claim before an award is made."34 The "residuum rule" envisages that hearsay evidence in itself is not sufficient to support. a finding of fact. There should also be, in addition to hearsay, some evidence which may be regarded valid in a court of law. As has been explained in Young v. Board of Pharmacy.35 "Under the 'legal residuum' rule it is generally considered that a finding is not substantially supported absent the presence of at least a residuum of evidence competent under the exclusionary rules. As an example, there is no substantial support for a finding if there is no evidence in support except hearsay." This is a sound rule, for, in administrative adjudication, a person's livelihood or property may be at stake. In England as well, the Queen' Bench Division has recently imposed certain restrictions on the admissibility of hearsay evidence in "quasi-criminal" proceedings. In such cases, natural justice may indicate that if hearsay evidence has been initially admitted, witnesses should be called in person and made available for crossexamination. But if the accused wishes to dispute the hearsay evidence, and there are insuperable or grave difficulties in arranging for the attendance of the witnesses, it would be proper to refuse to admit such evidence.36 Another condition mentioned in Hull

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on acceptance of hearsay evidence is that it sould be used to supplement, not in lieu of, the first hand evidence. But no such standard is applied in India. What is required here is that evidence should be of some probative value, which is a flexible standard.

The Supreme Court has stated that while ordinarily the findings of fact by adjudicatory bodies based no evidence are to be quashed, in disciplinary proceedings against professional persons, the findings must be based on a higher degree of proof--higher than that required in a civil suit but lower than that required to sustain a conviction in a criminal prosecution. "There should be convincing preponderance of evidence." In Khandekar,38 the Supreme Court quashed the decision of the disciplinary committee of the Bar Council as it had held two advocates guilty of professional misconduct on the basis of evidence which fell short of the standard of proof required to sustain the charge.39 However, in disciplinary proceedings against government servants, the Supreme Court has adopted a less stringent standard of evidence. For example, in State of A.P. v. C. Venkata Rao,40 the Court said that an inquiry against a government employee was not similar to a criminal prosecution, There was no warrant for the view that, in considering whether a public officer was guilty of misconduct charged against him, the rule followed in criminal trials that an offence was not established unless proved beyond reasonable doubt to the satisfaction of the court, must be applied. If there was some evidence which the concerned enquiry body had accepted and which evidence might reasonably support the conclusion that the delinquent employee was guilty of the charge, it was not the function of the court to review evidence and to arrive at its own independent finding on the evidence. A tribunal finding of fact could not be challenged on the ground that the relevant and material evidence adduced before it was insufficient and inadequate to sustain it. "The adequacy or sufficiency of evidence led on a point and the inference of facts to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal." It may be pointed out that, on the whole, the judicial policy is not to interfere with the findings of fact by adjudicatory bodies except within the narrow limits as stated above. There are several channels through which decisions of adjudicatory bodies may be challenged before the courts, viz. a writ petition under Art. 226; High Court' supervisory jurisdiction under Art. 227; special leave appeal to the Supreme Court under Art. 136, or an appeal or reference to the High Court under statutory provisions such as the Income-tax Act. Howsoever the matter may reach the court, a common feature of judicial approach is not to interfere with the findings of fact by the decision-making body except in very rare circumstances. One can find a few examples in the case law where findings of fact by an adjudicatory body have been quashed on the ground of no evidence or because the concerned body had examined the evidence in a perverse manner.41 The Supreme Court has however warned that adjudicatory authorities should not become smug that as courts do not interfere with their findings of fact they can come to any conclusion.42 The Consolidation Authorities have been given powers as are available to civil Courts for limited purposes specified in Sections 37-A and 37-B of the Bihar Consolidation and Prevention of Fragmentation Act, 1956 but the Consolidation Authorities cannot be equated with regular Courts. While specifying the powers of the Consolidation Authorities, it was specifically pointed out in Section 37-B that the Consolidation Authorities, while hearing any matter in dispute, shall have all such powers, the rights and privileges which are available to a Civil Court in respect of the matters including enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise and issuing a commission to examine witnesses; or to compel any person to produce documents. The Consolidation Authorities were also vested with the power to punish a person guilty of contempt. This, however, does not mean that the documents or the oral evidence could have been brought on record only in accordance with the procedure prescribed under the Evidence Act, 1972 or the Civil Procedure Code 1908 as the evidence could legally be brought on record in accordance with the procedure by the Consolidation Authorities. (para 6) In the instant case, full opportunity was given to the parties to adduce their evidence, and the evidence, in fact, had been brought on record which was duly considered by the Consolidation Authorities. Hence, it was held that the High Court was clearly in error in interfering with the findings recorded by the Consolidation Authorities, on the technical plea that the evidence had not been brought on record in accordance with the provisions of the Evidence Act or the Code of Civil Procedure.43 (para 9). (a) Evidence on Oath

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Every adjudicatory body does not have legal authority to take evidence on oath. Only such body can do so as has legal authority to do so. S. Sections 4 of the Oaths Act provides that oath and affirmation shall be made by all witnesses who may be lawfully examined by or before any court or person having authority to examine such person or to receive evidence. According to S. 7 of the very Act, any omission in that regard will not invalidate the proceedings. The reason is that oath taking is a voluntary act and there can be no compulsion on the witness to take oath. It therefore means that even evidence not given on oath may have evidentiary value and is not entirely useless. It is left open to the enquiry authority to give weightage to the evidence according to its nature taking into account whether the evidence had been given on oath or without it. Evidence taken on oath may be given less or more weightage on its own merits. By virtue of S. 8 of the Act, every person giving evidence on any subject before any court or person authorised to administer oaths and affirmations shall be bound to state the truth on that subject. Therefore, if evidence is taken without oath, the party against whom evidence is being given loses one significant safeguard : he cannot proceed against the witness for perjury if he tells a lie. Reference has already been made to the Departmental Inquiries Act.44 Under S. 5 thereof, an authorised inquiry officer should take the statement of a witness on oath, but in case he fails to do so, the inquiry is not vitiated in view of S. 7 of the Oaths Act, mentioned above. If the authorised inquiry officer requires of a witness to take oath, but he refuses to do so, the inquiry officer may take action for the prosecution of the witness under S. 178, IPC.45 Similarly, if a witness on oath perjures himself in his evidence before the authorised inquiry officer, he can be prosecuted under S. 181, IPC, which makes penal making of false statement on oath to any public servant. This section applies however only when the public servant is authorised to administer an oath. (b) Perjury Under S. 193, IPC, giving of false evidence intentionally in a judicial proceeding is punishable with imprisonment and fine. This provision is prima facie applicable to a judicial proceeding. The term 'judicial proceeding' has broad connotation. It does not necessarily mean proceeding before a court; it can also include a proceeding before an adjudicatory body.46 It is for the court to decide whether proceeding before a particular body can be characterised as judicial proceeding or not for the purposes of S. 193, IPC. To avoid confusion and uncertainty on this point, the usual practice adopted is for the parent statute which sets up the adjudicatory body in question to declare that the proceeding before this body will be deemed to be judicial proceeding for the purpose of S. 193, IPC.47 Then there is S. 195(1)(b) according to which if the offence under S. 193 is committed in relation to proceeding in any 'court', then the cognizance of the offence is to be taken only on a written complaint of that court. Under S. 195(3), CrPC, "court" means a "civil, revenue or criminal court" and includes a tribunal declared by the Act to be a court for purposes of S. 195, CrPC. The position, therefore, is that when an adjudicatory body is regarded as a court, then the offence of perjury committed before it can be taken cognisance of by a criminal court only on its written complaint. Complaint by the concerned court is a precondition for taking cognizance of the offence of perjury before it by a criminal court. If the adjudicatory body is not regarded as a court, but proceeding before it is regarded as a judicial proceeding, then the offence of perjury committed against it can be taken cognisance of without a written complaint on its part. Questions arise from time to time before the courts whether a particular adjudicatory body can be regarded as a court or not for the purposes of S. 195, IPC. For example, the Supreme Court has left open the question whether the rent control officer functioning under the U.P. Urban Buildings Act can be characterised as a court for the purposes of S. 195, CrPC.48 An income-tax officer has been held to be a court for the purposes of S. 195, CrPC, because of the reason that proceeding before him has been declared to be a judicial proceeding by S. 136 of the Income-tax Act.49 On the other hand, a sales tax officer has been held to be not a court, and, therefore, a complaint by him under S. 195, IPC is not necessary for proceeding against a person for producing forged documents before him during tax assessment proceedings.50 Many a statute does not leave the matter to the courts to decide the question and declare the concerned adjudicatory body as a court for the purposes of S. 195, CrPC. This avoids any confusion and uncertainty and argumentation on the question whether the adjudicatory body in question is a court or not under S. 195, CrPC. For example, S. Sections 12 of the MR TP Act declares that any proceeding before the MRTP Commission51 shall be

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deemed to be a judicial proceeding, within the meaning of S. 193, IPC, and the Commission shall be deemed to be a civil court for the purposes of S. 195 and Chapter XXVI of the CrPC 1973.52 3. OFFICIAL NOTICE A difficult problem in quasi-judicial proceedings is : what may be taken for granted as a fact and for what proof may be required? The general principle is that a decision-making authority decides a matter on the basis of the evidence placed before it in the course of the adjudicatory proceedings. The authority cannot take any extraneous material into account to reach its decision. But then an adjudicator cannot view a matter with a completely empty mind--a mind devoid of all information except that collected through the evidence produced by the parties, particularly, when the adjudicator has developed a kind of expertise to deal with matters in the area of adjudication. This brings in the doctrine of official notice : to what extent and in what manner an adjudicator may, in making his decision, use material that has not been introduced in evidence ? The question often arises as to what use a judge may make of his own knowledge and experience in deciding cases. Ordinarily, the courts require proof of all facts which are : (a) not admitted, or, (b) are not covered by the doctrine of judicial notice. On the same basis, admitted facts will also require no proof in a quasi-judicial proceeding. The doctrine of judicial notice as applied in the regular courts of law is that a court requires no proof of obvious and notorious facts and the court takes judicial notice of these, i.e., it accepts them as true even though no evidence on them has been presented at the trial. S. 57 of the Evidence Act lists the facts of which the Indian courts take judicial notice, but it is not exhaustive.53 The question is whether the concept of judicial notice extends to quasi-judicial proceedings as well, and, if so, to what extent? Whether the concept of natural justice admits of the concept of official notice by the adjudicator to any extent as an administrative counterpart of the judicial notice doctrine used by the courts? The rule of judicial notice is a common sense rule. Therefore, there may not be any objection in permitting an adjudicatory body as well to take official notice of whatever the courts can take judicial notice. Natural Justice cannot possibly mean that every fact should be proved, especially, those facts which are obvious and notorious under the doctrine of judicial notice. Such a body cannot be placed higher than a court. But the problem does not end there. The adjudicatory bodies by virtue of their work in a specified field acquire special knowledge and expertise in their particular area of activity. Further, administration involves collection of great deal of factual data. All this knowledge, expertise and data become a part of the normal mental constitution of the administrators so much so that they may come to regard the same as obvious facts needing no evidence to prove them. Further, the judges base their decisions on the materials presented to them in open court by the parties concerned. On the other hand, many of the issues coming before the adjudicatory bodies for decision may not suitably be resolved by submission of evidence and arguments by the parties. Also, adjudicatory bodies have a broad mandate to develop and implement sound public policies in a given area. Thus, an important question arises : when an administrator sits as an adjudicator, how far can the special knowledge and expertise acquired by him as an administrator during the course of his activities as such, may be used by him in support of an adjudicatory decision by him ? How far can he draw inferences, on the basis of his own knowledge, in deciding controversies? How far can he bring his own expertise to bear upon his findings? Should he be confined merely to the evidence actually tendered before him by the parties? It seems to be difficult to completely bar adjudicators from using their expert knowledge and skill to decide matters coming before them for adjudication. To do so would result in the whole rationale of adjudication outside the normal court-system to be lost. As already noted, professional expertise is one of the reasons why adjudicatory bodies are established.54 It is clear therefore that the doctrine of official notice has to be more flexible, and cover a far wider ground, in case of adjudicatory bodies than is the case with the courts under the doctrine of judicial notice. There seems to be no objection if the authority uses its expert knowledge and professional expertise to assess and evaluate evidence presented at the time of hearing and draw conclusions and inferences therefrom. The doctrine of official notice may even go further. An adjudicator may be allowed to take notice of a far wider range of facts than what is permitted to the courts under the doctrine of judicial notice, and, further, an adjudicator may even be allowed to use his knowledge to supplement the evidence

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on record, but this is open to some objections, and some safeguards and limitations are necessary here, otherwise, there is a danger that a decision may be based upon facts not known to the concerned parties. In India, the question as to how far an adjudicator can make use of his own technical or departmental knowledge as a substitute for evidence, and draw inferences on the basis of this knowledge in place of actual evidence tendered at the hearing before him, has not been much explored so far. In England, the courts have accepted the position that a tribunal can use its own accumulated knowledge within certain limits, and its decision need not be based exclusively on the evidence tendered before it. For example, in Metropolitan Properties Co. v. Lannon,55 the court ruled that the rent assessment committee was entitled to use its own knowledge and experience, but that does not mean that it can overthrow the evidence altogether. At any rate, it should not throw over the evidence without saying why. The best summation of the law is to be found in Crofton.56 The tribunal sitting day after day is bound to acquire experience and knowledge of the conditions in the locality. The tribunal is entitled to act on its own impressions and knowledge. It is not bound to act only on such evidence as may or may not be put before it. But if a new point emerges, something which may take the party by surprise, or something which the tribunal has found out and of which the party may have no knowledge, fairness would clearly dictate that it should inform the parties and enable them to deal with those points. But, if a point is already there, if the parties are alive to the point, and they do not call evidence to negative the same, then the tribunal is not bound to inform the concerned parties of its own thinking. In Fairmount,57 it has been emphasized that the inspector holding a local public inquiry may from his professional experience supply deficiencies in the case as presented to him by a party. "Part of his function lies in his own knowledge of the subject." In America, the doctrine of official notice permits utilisation by an administrative agency of its special or expert knowledge to aid it in disposing of the matters coming before it.58 Even when official notice is permitted, it is subject to one fundamental safeguard that the facts noticed are subject to challenge. S. 556(e) of the American Administrative Procedure Act provides that "where an agency decision rests on official notice of a material fact not appearing in the evidence in the record", a party shall on timely request be afforded an opportunity to show the contrary. SCHWARTZ explains the position thus :59 "Looked at in this way, the 'official notice' doctrine is more or less a device for expediting administrative procedure. Under it, an agency can rely upon materials familiar to it in its expert capacity without the need formally to introduce them in evidence. But this does not mean that the private party need not be apprised of these matters if they form the basis of the agency's decision. The doctrine of 'official notice' must thus be subject to the safeguard that the parties be informed of materials so noticed and be given an opportunity to explain or rebut them. The parties... are entitled to be apprised of the data upon which the agency is acting. They are entitled not only to refute but, what in this situation is usually more important, to supplement, explain, and give different perspective to the facts upon which the agency relies."

Therefore, where facts and data are used by a tribunal from its background knowledge, it ought to give a chance to the party affected to rebut the same. The best rule will be that if the tribunal is going to rely for any purpose upon relevant material of any kind within its personal knowledge, it should be disclosed in advance to the party and he be given a fair opportunity for discussion and rebuttal. But if as a result of the background knowledge acquired over a period of time, the tribunal has formed certain attitudes, subjective reasoning and mental processes, and it uses the same in deciding a controversy, then the requirement of disclosure may not apply to it. The general approach is : "Principles of natural justice require factual information within the knowledge of a tribunal to be disclosed to the parties for comment if the tribunal is going to rely on it to supplement or supplant the evidence tendered. But it does not have to disclose its accumulated background of experience, skill, specialised knowledge in analysing and evaluating evidence propertly presented to it."60 4. BURDEN OF PROOF A party may win or lose his case depending upon the question of burden of proof. At times, this becomes crucial because of the difficulty of proof. Though the Indian Evidence Act, 1872, as such, does not apply to administrative adjudication, yet the general principles contained therein do apply to some extent. However, the specific statute under which the authority in question is operating may itself lay down a specific rule regarding burden of proof in certain circumstances; and in such a case, that specific rule will prevail.

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The general rule under the Evidence Act is that the burden of proof lies on the person who asserts a claim in his favour. It has been stated : "The phrase 'burden of proof' is used in two distinct meanings in the law of evidence, viz., the burden of establishing a case remains throughout the trial where it was originally placed; it never shifts. The burden of evidence may shift constantly as evidence is introduced by one side or the other."61 The former, the burden of establishing a case, it is obvious, is concerned with the quantum of proof. Ordinarily, the party on whom the burden lies has to establish a prima facie case, and once that has been done the burden to rebut that shifts on the other party. In other words, it does not mean that he should produce all conceivable or available evidence. He has to produce only sufficient proof which, if not contradicted, leads to an inference favourable to him.62 In a criminal case, however, it is for the prosecution to prove the case beyond a reasonable doubt, and it is sufficient for the accused to create a doubt about the prosecution' evidence. That is to say, a greater quantum of proof is required to convict an accused in a criminal case than for the plaintiff to prove his case in a civil case. Even this principle is relevant in some situations involving administrative adjudication. The rule that a party who wants a claim or a matter to be decided in his favour must prove all the facts necessary for the purpose has certain exceptions. One, where any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Two, the court (which includes an administrative adjudicatory authority) may presume the existence of certain facts. This is known as the "presumption of law". Under S. 114 of the Evidence Act, the court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of material events, human conduct, and public and private business, in their relation to the facts of a particular case". Two of the several illustrations (given in the section) state that the court may presume (i) "that judicial and official acts have been regularly performed" and (ii) "that the common course of business has been followed in particular cases". It is obvious from the above that the two propositions cut each other. This, alongwith the problem of quantum of proof which may enable a party to win his case or shift the onus, makes the question of burden of proof a complex one. It may be emphasised that in the case of proceedings of a penal nature, the burden of proof remain with the Administration, and it cannot take recourse to the principle underlying S. 106, unless the statute concerned puts the burden on the individual (the courts would, however, strictly interpret such a provision). The doctrine of official notice and the question of burden of proof are interconnected. Ordinarily when the Administration relies on a fact, it has the burden of proving it by tendering evidence in accordance with the general principle that one who asserts a fact must prove it. But when official notice is taken by the adjudicator of some fact, the burden shifts to the other side. The fact taken official notice of is regarded as true unless the party opposing is able to show the contrary. Applying the general rule that the burden lies on the party who asserts a claim in his favour, a person who wants a licence to be issued to him has to bring forth all the facts justifying the issue of licence to him. Similarly, the burden is on the landlord claiming exemption from the operation of the rent control statute to prove the exception. The burden is on him to prove that his building is outside the ambit of the rent law.63 If the government wants to dismiss a civil servant, the burden is on it to prove the charges against him. Thus, it is the employer who has to lead the evidence against the employee.64 Since disciplinary proceedings are penal in nature the burden of proof will not be on the employee even though certain facts may be in his special knowledge. It may be that in such a case, depending upon the fact-situation, a slight initial evidence by the employer may shift the onus on the employee. The operation of the above propositions may be seen closely in the areas of customs and income tax. (a) Customs In the customs cases, the question of burden of proof has generally arisen in the case of illegal importation or smuggling of goods. In Amba Lal v. Union of India,65 the customs authorities confiscated certain goods from the appellant on the ground that those were smuggled from Pakistan and were, therefore, liable to confiscation. The appellant' plea was that he brought the goods when he entered India from Pakistan in 1947 after partition, and that at that time there was no customs barrier between the two countries. The court characterised the proceedings before the customs authorities as penal in nature. Though the provisions of

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the Criminal Procedure Code and the Evidence Act did not as such apply, yet the fundamental principles of criminal jurisprudence and of natural justice did apply. It was thus their duty to prove that the goods were brought into India after establishment of the customs barrier. The customs authorities failed to give any such evidence. The Court said that even assuming that the fundamental principle contained in S. 106 of the Evidence Act (that is, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him) was of universal application, and if this principle were applied, then, by analogy, "the fundamental principles of criminal jurisprudence must equally be invoked". From this it followed that the burden to prove the case against the appellant was on the customs authorities, and that they had failed to discharge that burden. The order of confiscation was thus set aside. It will depend upon the facts of each case as to when the customs department may be said to have discharged its burden and the onus shifts on the other party. An important ruling on the subject is Collector of Customs v. D. Bhoormull.66 The customs authorities seized certain goods from the respondent' shop in the reasonable belief that they were smuggled goods. The goods were later confiscated by the authorities. The court held that the burden was on the department to prove that the goods were smuggled. The department was not, however, required to prove the case with "mathematical precision to a demonstrable degree," for, "in all human affairs absolute certainty is a myth." All that was required "is the establishment of such a degree of probability that a prudent man may, on its basis, believe in existence of the fact in issue". Further, the department was not obliged to prove facts which were especially within the knowledge of the other party as part of its primary burden. It was enough if the department furnished prima facie proof of the goods being smuggled. This burden was discharged by the department by such facts as that the import of the goods in question had been banned for long, the highly suspicious circumstances of the seizure, and the dubious conduct of the party in relation thereto. In Amba Lal, the court did not apply the principle contained in S. 106 of the Evidence Act, but in Bhoormull it did. This outcome turned on the facts of the case. Where a firm imported certain items against an import licence, but the customs authorities by a prima facie case established that they were not covered by the import licence, the burden shifted on the importer to prove that they were covered by the licence, the matters being in his special knowledge.67 In the case of a few precious articles like gold and diamonds, the Customs Act, 1962, imposes the burden on the individual to prove that they are not smuggled goods if they are seized by the customs authorities from him in the reasonable belief that they are smuggled goods.68 The constitutional validity of such a provision was challenged under Articles 14 and 19(1)(f) and (g) in Collector of Customs v. Sampathu Chetty.69 The Supreme Court upheld the provision arguing that as the seizure of goods is to be done only on the ground of reasonable belief it provides a check on administrative arbitrariness. The reasonableness of the belief of the officer affecting the seizure would be the subject-matter of an investigation later by the adjudicating officer. The seizure of goods in reasonable belief imparts "a rational connection between the facts on which the presumption is raised and the fact to be proved". What is reasonable belief will depend upon the facts of each case.70 The Supreme Court has, however, shown reluctance in probing the question of "reasonable belief". The Court has observed in this connection :71 "Whether or not the official concerned had seized the article in the "reasonable belief" that the goods were smuggled goods is not a question on which the court can sit in appeal ...if prima facie there are grounds to justify the belief the courts have to accept the officer' belief regardless of the fact whether the Court of its own might or might not have entertained the same belief."

Will the burden be still on the individual to prove that he was innocent in case he is prosecuted in a criminal court for the offence of smuggling of goods? Though, mens rea on the part of the accused has to be proved by the prosecution, yet the court may infer mens rea from the circumstances of the seizure and the conduct of the accused both at the time of seizure and subsequently.72 As regards the assessment of customs duty (either on export or import of goods), the Customs Act provides that the importer has to file a bill of entry (shipping bill in the case of export) mentioning the necessary particulars. The customs officer may require the importer or exporter to produce the necessary evidence for the purpose of determining the duty on goods. Thus, a burden is cast on the individual to justify the

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particulars stated by him in the bill of entry, or even to furnish any other evidence which may enable the authority to determine the correct duty. This is on the basis that facts are within the special knowledge of the importer. (b) Income Tax Under the Income Tax Act, 1961, a person who has taxable income has a duty to file the return. The assessing authority can ask from the individual such information as may be necessary to determine his income. The assessing authority can assess on the basis of the return, or on the basis of evidence adduced, or on the basis of 'best judgment' assessment. Since, in the case of income tax assessment, the facts are especially within the knowledge of the individual, the burden of proof is ordinarily on him and the principle contained in S. 106 of the Evidence Act applies. Thus, the onus is on the assessee to prove the source of money found to have been received by him. It has been held in the following cases that the burden of proof was on the assessee : the source of cash credit;73 the truth of an entry in the books,74 that a particular item of income was agricultural and hence exempt from tax;75 whether an item of expenditure was incurred wholly and exclusively for the purposes of business;76 losses in business;77 a claim to any allowance or deduction, etc.78 The burden on the assessee to prove the truthfulness of transactions in his account books does not mean that the assessing authority can reject the account books arbitrarily. There must be some valid material on the basis of which the authority can reject them, as the law presumes that the apparent state of affairs are correct and true.79 Similarly, where the book of accounts are treated as unreliable and the authority makes a "best judgment" assessment, it cannot be based on merely surmises and conjectures. The burden is on the authority to support its assessment order by some material though the law gives it quite a good deal of leeway in the matter.80 The ordinary presumption is that the apparent state of affairs is real, unless the contrary is proved. Where the property stands in the name of an individual but the department takes the position that he is not the real owner but only a benamidar, the burden is on it to prove the same.81 S. 110 of the Evidence Act stipulates that when the question is whether any person is the owner of anything of which he is shown to be in possession, the onus of proving that he is not the owner is on the person who affirms that he is not the owner. In other words, it means that normally, unless contrary is proved, title always follows possession. In a tax proceeding, S. 110 was applied by the tax authority. In Chuharmal v. C.I.T.,82 objection was raised that S. 110 ought not to have been applied as the Evidence Act was inapplicable to taxation proceedings. Rejecting the argument, the Court said that "what was meant by saying that the Evidence Act did not apply to the proceedings, under the Act was that the rigour of the rules of evidence contained in the Evidence Act was not applicable but that did not mean that the taxing authorities who were desirous in invoking the principles of the Act, in proceedings before them, they were prevented from doing so. Secondly, all that S. 110, Evidence Act, does is that it embodies a salutary principle of common law jurisprudence which could be attracted to set of circumstances that satisfy its condition." Where the authority finds that the assessee has some income outside the account books placed before it, the initial burden is on the authority itself to find such legitimate material from which a reasonable inference of undisclosed income can be drawn.83 In some cases under the Income Tax Act, a positive duty is cast on the assessee to explain certain state of affairs. Under S. 69, where the assessee has made investments which are not recorded in the books of accounts, the burden is on him to explain the nature and source of investments. Further, where the assessee is found to be in possession of money, bullion or jewellery, etc., not recorded in the books of accounts, a similar burden exists on the assessee. Similar provisions exist for unexplained expenditure and amounts borrowed or repaid on hundi. In such cases, however, the initial burden to prove the existence of assets, expenditure or hundi transaction will obviously be on the department. Under S. 147, the ITO is given the power to assess or reassess income escaping assessment because of the assessee' failure to file return, or of his not disclosing true facts, or in consequence of information in his possession, the ITO has reason to believe that income has escaped assessment. The initial burden to prove that income has escaped assessment is on the ITO, and it is not for the assessee to

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prove that the original assessment was right and no income has escaped assessment.84 But once the proceedings under the section are validly commenced, the onus would be on the assessee to prove, for instance, that cash credits in his books do not represent undisclosed income.85 There is a difference between assessment of income tax and imposition of penalty. The penalty proceedings are quasi-criminal in nature, and since it is so, the burden is on the department to show that the assessee has concealed the particulars of income or deliberately furnished inaccurate particulars of such income. A best judgment assessment, or merely saying that the assessee' explanation is false, does not furnish a basis for imposing penalty, though it may justify additions by the department for assessing tax.86 It has been stated by the Supreme Court : "Before penalty can be imposed the entirety of circumstances must reasonably point to the conclusion that the disputed amount represented income and that the assessee had consciously concealed the particulars of his income or had deliberately furnished inaccurate particulars."87 Thus, penalty on ground of concealment could be imposed only if there was conscious and deliberate concealment on the part of the assessee. Independently of the assessment, the department has to show that the imposition of penalty was warranted. By an amendment of S. 271 of the Income-Tax Act in 1976, same dent has been made in the above proposition. It however remains doubtful whether the courts would deviate from the above principle in spite of the aforesaid amendment.88 (c) Additional Evidence Before Appellate Body The Motor Vehicles Act, 1939, set up tribunals to adjudicate upon applications for stage carriage permits.89 The first decision on such applications was taken by the regional transport authority and then an appeal could go to the State Transport Appellate Authority. The relevant rules in Andhra Pradesh gave power to the appellate body to permit additional evidence being presented to it, which was not presented to the regional body. Justifying the procedure, the Supreme Court stated in B. Prabhakara v. D. Panakala90 that the function of these tribunals was to take into account public interests along with private interests. Full opportunity was to be given to the other party to rebut the evidence presented against it at the appellate stage. The Court emphasized that these bodies should not be bound down by the procedural law contained in the Civil Procedure Code governing civil litigation. The Court emphasized that administrative bodies "manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasi-judicially at the public-interest level" should enjoy "more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously."91 5. RES JUDICATA/ESTOPPEL The principle of res judicata is laid down in S. 11, Civil Procedure Code. Res judicata means that once a dispute between the parties has been decided on merits by a competent court, it should then not be re-opened. The underlying idea is that there should be some finality to litigation. The principle of res judicata is dictated by public policy, namely, that a litigation must end and a party should not be vexed over an issue already decided by a competent court. Though adjudicatory bodies are not regarded as courts, yet the principle of res judicata may apply to them as well in some situations.92 The general principle of res judicata, though not the exact terms of S. 11, CPC applies to decisions of adjudicatory bodies. A decision of a tribunal will be res judicata provided it was within the competence of the tribunal concerned. If the tribunal exceeded its jurisdiction, then its decision was void and it could not be regarded as res judicata in a later case.93 Thus, when a decision has been made by a competent revenue officer the same cannot then be questioned or reviewed by the subsequent revenue officer on the self-same issue.94 In cases involving income or sales taxation, the general approach is not to apply the doctrine of res judicata, because, as explained by the Supreme Court in Instalment Supply (Pvt.) Ltd. v. Union of India,95 "each year' assessment is final only for that year and does not govern later years, because it determines only the tax for a particular period.96 In other words, a question settled in relation to one assessment year may be reopened during the. assessment for the subsequent year. It is open to an Income Tax Officer to depart from his decision in an assessment for an earlier year.97 The Supreme Court has ruled that for purposes of computation of true profits for purposes of income-tax, each year is a "self-contained unit". The ITO is not

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bound continuously to accept the accounting system regularly employed by the assessee the correctness of which had not been questioned in the past. "There is no estoppel in these matters, and the officer is not bound by the method followed in the earlier years."98 Similarly, the failure of an assessee to raise a particular objection does not bar him from raising the same objection in a subsequent assessment proceeding on the ground that he might and ought to have raised it in an earlier assessment. It does not however mean that tax authorities can reopen capriciously or arbitrarily a question previously settled. A tax authority cannot arbitrarily change the assessment simply on the ground that the succeeding authority does not agree with the preceding authority' findings. An earlier decision cannot be reopened if that decision is not arbitrary or perverse; if it has been arrived at after due enquiry; if no fresh facts are placed before the authority giving the later decision; if the authority giving the earlier decision has taken into consideration all material evidence.99 On the other hand, the principle of res judicata has been held to apply to industrial adjudication when a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and it had been heard and finally decided by the tribunal. The reason for this view is that multiplicity of litigation and agitation and reagitation of the same dispute between the same employer and his employees is not conducive to industrial peace which is the principal objective of all labour legislation bearing on labour adjudication.1 But whether the matter in dispute in a subsequent case had been earlier directly and substantially in issue between the same parties, and whether the same matter had been heard and finally decided by the tribunal, will be of pertinent consideration and will have to be determined before holding in a particular case that the principle of res judicata is attracted to it. However, while applying the principle of res judicata, extreme technical considerations, usually invoked in civil proceedings, may not be allowed to outweigh substantial justice to the parties in industrial adjudication.2 The Court has also clarified that it does not mean that a question once decided can never be reopened. There are certain classes of cases, such as, disputes regarding wage structure, service conditions etc., which arise as circumstances change (as, for instance, spiralling prices) and new situations arise which may not be barred from being reagitated by the rule of res judicata.3 The decision of a competent tribunal may be regarded as res judicata if the same matter is raised later before a court. A complaint of negligence in discharge of his duties filed against an advocate was dismissed, first, by the State Bar Council and, then, on appeal, by the Bar Council of India. Later, the complainant filed a suit in a court seeking damages against the lawyer on the ground of his negligence. The Rajasthan High Court ruled that the suit was not maintainable as the earlier decision by the Bar Council would operate as res judicata, and the court could not take cognizance of the matter which had earlier been disposed of by the Bar Council. The Court emphasized that S. 11, CPC, is not exhaustive of the entire doctrine of res judicata, and the general principle of res judicata can be applied in other situations as well which do not strictly fall within the scope of S. 11, CPC.4 In Hope Plantations Ltd. v. Taluk Land Board, Peermade,5 the Apex Court held that the legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice. 6. LIMITATION The question regarding the applicability of the provisions of the Limitation Act, 1963, to the prosecution of claims before adjudicatory bodies remains shrouded in confusion. The view has been expressed that the Limitation Act is a piece of adjectival or procedural law, and not substantive law, and that rules of procedure are to be applied only to the matters to which they are made applicable by the legislature either expressly or by necessary implication, and that such rules cannot be extended by analogy or reference to proceedings to which they do not apply expressly or by necessary implication.6 The dominant judicial view seems to be that this Act is applicable only to proceeding in the courts and not to proceedings in tribunals and other adjudicatory bodies. Accordingly, it has been held in Sita Devi v. Anna Rao,7 that Article 182 of the Limitation Act would not apply to proceedings before the tribunal under the Estates Abolition Act as it was a special enactment and disputes thereunder were adjudicated upon by tribunals and not courts. In L.S. Nair v. Hindustan Steel, Bhilai,8 the Madhya Pradesh High Court refused to apply the Limitation Act to proceedings before a tribunal. In the instant case, the estate officer under the Public Premises Act, 1971, ordered

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recovery of standard rent from an occupant of public premises for a period of six years. It was argued that the recovery of rent for more than three years was time-barred under the Limitation Act. The High Court rejected the argument on the ground that the Limitation Act would not apply to proceedings before the estate officer who is not a court. The court also argued that the jurisdiction of civil courts was entirely barred in matters governed by the Public Premises Act and, therefore, "the Limitation Act cannot be inferentially applied to proceedings before the estate officer". There was nothing in the Act to show that the estate officer was governed by any rule of limitation in assessing damages for use and occupation of premises. Similarly, the Supreme Court has held that Art. 137 of the Limitation Act is not applicable to an application filed by workmen relating to a dispute concerning payment of wages before the labour court under S. 33-C(2) of the Industrial Disputes Act.9 No limitation is prescribed for such applications. Article 137 of the Limitation Act lays down the period of limitation for filing applications. The Supreme Court has held that Article 137 would not apply to an application filed before the labour court as it was not a court within the Indian Limitation Act, 1963. "The scheme of the Indian Limitation Act is that it only deals with applications to courts." All applications presented to bodies other than courts are not governed for purposes of limitation by Art. 137, Limitation Act. For this purpose, the Court followed its two earlier decisions.10 In Sakuru v. Tanaji,11 the Supreme Court observed : "The provisions of the Limitation Act, 1963, apply only to proceedings in 'courts' and not to appeals or applications before bodies other than courts such as quasi-judicial tribunals or executive authorities notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on courts under the codes of Civil or Criminal Procedure."

In the above mentioned case, the Supreme Court refused to apply the provisions of the Limitation Act to an appeal before the collector. As the collector was not a court, the elimination Act, as such, had no application to the proceedings before him. However, the relevant statute may make an express provision applying all or some provisions of the Limitation Act. But, then, there are cases where the Limitation Act has been applied in case of tribunals. For instance, in Central Coalfields Ltd. v. Union of India,12 the High Court applied Art. 137 of the Limitation Act to filing of an application before the Railway Claims Tribunal claiming compensation for short supply of goods by the Railways. There is S. Sections 17 in the Railway Claims Tribunal Act laying down a period of limitation for filing several types of applications before the Tribunal but this provision does not cover cases of short supply of goods. Hence Art. 137 was applied. Also, before the Railway Claims Tribunal was instituted, claims against the Railways were filed in the courts where the Limitations Act was applied. The same tradition continues to hold good even after the institution of the RCT in cases where the RCT Act fails to provide a period of limitation. An interesting case on the applicability of the Limitation Act to quasi-judicial proceedings is Parson Tools. Under S. 10 of the U.P. Sales Tax Act, 1948, a revision petition against a sales tax assessment could be filed in the High Court within eighteen months. In the instant case, the respondents after prosecuting their remedies before various sales tax authorities filed a revision petition after the prescribed period of limitation. The question was whether out of the statutory period of limitation, the pried spent on proceedings before the sales tax authorities could be excluded. In Commissioner of Sales Tax v. Parson Tools and Plants,13 the Allahabad High Court by a majority answered the question in the affirmative. The Court held that the matter could be decided on the basis of the policy underlying S. 14(2) of the Limitation Act which provides that in computing the period of limitation, the time during which the applicant has been prosecuting with due diligence another 'civil proceeding' in a "court of first instance" or in a court of appeal against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a 'court' which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. The proceeding before the sales tax authorities can he regarded as "civil proceeding" which is a term used in contradistinction with a criminal proceeding. It is a proceeding to vindicate civil rights. However, the sales tax authorities, though quasi-judicial in nature, are not "courts" in the strict sense of the term in view of the Supreme Court' decision in Nityanand' case,14 and, therefore, while S. 14(2) of the Limitation Act did not apply as such, the principle underlying this section could be applied. But, on appeal, the Supreme Court refused to apply the principles

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contained in the Limitation Act even on the plea of justice, equity and good conscience, as in its opinion, the statutory language in question was clear in precluding their applicability.15 On this point the Court stated that from the scheme and language of Section 10 (of the U.P. Sales Tax Act) the intention of the legislature to exclude the unrestricted application of the principles of Sections 5 to 10 of the Limitation Act was manifestly clear. "These provisions of the Limitation Act, which the Legislature did not, after the application of mind, incorporate in the Sales Tax Act, cannot be imported into by analogy." The Court further stated that-"The court is not competent to supply the omission by enlarging on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity."

Oddly, the Supreme Court reached a contrary result in Commissioner of Sales Tax v. Madan Lal Das & Sons,16 where it applied S. 12(2) of the Limitation Act to proceedings under the U.P. Sales Tax Act. In Madan Lal, the assessee (respondent) made an application for revision under S. 19(1) of the U.P. Sales Tax Act after one year of the service of the order in question, which was the time prescribed by the Act for making the revision application. The reason for the delay was that copy of the order in question was served on the assessee on Aug. 2, 1965, but he lost it and applied for a copy on June 15, 1966, i.e., after a lapse of about ten months. He received the copy on Aug. 18, 1967. He pleaded that the time taken to obtain the duplicate copy be excluded from the computation of the period of limitation arguing that S. 12(2) of the Limitation Act, 1963, allowed the exclusion of such period. The Supreme Court accepted the assessee' contention and applied S. 12(2),Limitation Act, to the case in hand. For this the Court depended on S. 29(2) of the Limitation Act which says that where any local law prescribes for any suit, appeal or application, any period of limitation different from that prescribed by the Limitation Act the provisions of Ss. 4-24 of the Act shall apply insofar as they are not expressly excluded by the local law. Since here the special law (U.P. Sales Tax Act) prescribed a period of limitation, S. 12(2) of the Limitation Act became applicable by virtue of S. 29(2). There was nothing in the U.P. Act expressly excluding the application of S.12(2) of the Limitation Act for determining the period of limitation prescribed for filing a revision application. The flaw in the argument is that the revision application was made before a quasi-judicial body, a body created by the State Government, and not a court and so, according to the earlier cases, the Limitation Act was not applicable in the instant case. Because of this decision, the position has become confusing. It is difficult to reconcile Parson Tools with Madan Lal. In the later decision, no reference has been made to Parson Tools.17 Some statutes specifically make specific provisions of the Limitation Act applicable to the concerned adjudicatory bodies. As for example, the Advocates Act makes Ss. 5 and 12 of the Limitation Act applicable to appeals to the Bar Council of India and the Supreme Court. Some statutes prescribe the period of limitation for taking recourse to the concerned adjudicatory authority. In such a case, the statutorily prescribed limitation period must be observed. For example, in case of ITAT,18 the memorandum of appeal must be filed within 60 days of the communication of the order. A statute may also confer power on the Tribunal to condone delay. For example, ITAT has power to condone delay in filing appeal if it is satisfied that there was sufficient cause for not filing the appeal within the prescribed time. But difficulty arises when the parent statute does not expressly confer the power of condoning the delay on the concerned adjudicatory body. Can such a power be implied? According to the Gujarat High Court in Mahesh Harilal v. B.N. Narasimham,19 when an authority exercising quasi-judicial function has to enforce a period of limitation for any appeal or application before it, it has an implicit power to condone any delay. The entire machinery of S s. 3 to 24 of the Limitation Act, 1963, would apply by virtue of S. 29(2) of the same Act to such proceedings. S. 5 is necessarily included in the conspectus of Ss. 4 to 24. The Supreme Court decision in Kerala Electricity Board, Trivandrum v. T.P. Kunhaliumma was held not to apply to such a situation.20 But in Raman Pillai v. Special Tehsildar, LA. Collectorate, Quilon,21 the Kerala High Court came to a different conclusion. The Court ruled that S. Sections 5, Limitation Act, does not apply to an application for reference under S. Sections 20, Land Acquisition Act, 1894. Under this provision, an application for reference to the court could be filed with the concerned officer within six weeks of the notice of compensation under S. 12(2). This ruling means that this time-limit is immutable and delay cannot be condoned for any reason whatsoever. The Patna High Court has also taken a similar view in respect of an appeal from a decision of the Electrical Inspector to the State Government under the Electricity Act.22 This appears to be a very harsh view. There may be circumstances beyond the control of the person concerned

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as to why he may be unable to apply in time. Extreme technicalities ought not to defeat the ends of justice. Accordingly, the Gujarat High Court' view mentioned above seems more commendable as being just and equitable. However, when a statutory provision exists regulating the question of condonation of delay, the concerned tribunal is to exercise its power accordingly and not under S. Sections 5, Limitation Act.23 The Supreme Court has laid down a very salutary principle in M.M. Rubber.24 When a statute fixes a time limit for an aggrieved person to seek his remedy, limitation starts running against him only when he comes to know, either actually or constructively, of the order against which he is seeking his remedy. Thus, communication of the impugned order to the affected party assumes a great importance.25 On the other hand, if the department concerned seeks to revise the order suo motu,26 then limitation starts running from the date of making the order in question irrespective of its communication to the affected person. 7. CHANGE IN THE PERSONNEL OF ADJUDICATORY BODY Is it necessary to hear de novo where the adjudicator who heard the individual earlier goes away before passing the order and another comes in his place? In Amir Singh v. Government of India,27 which involved proceedings before a collector of customs under the Sea Customs Act, the Punjab High Court answered the question in the affirmative. It stated, "It is a cardinal principle of our judicial system that a case should be decided by the authority hearing the arguments and that a successor cannot decide a case without hearing the argument afresh on the ground that arguments have already been advanced before his predecessor who left the case without deciding it himself."28 Again, in Amulya Kumar v. L.M. Bakshi,29 during the course of enquiry by the disciplinary authority some witnesses were examined by another official due to the illness of the former. It was held to be a wrong procedure as seeing the demeanour of witnesses was important in assessing the value of their evidence. However, a different conclusion was reached by the Supreme Court in General Manager, E. Railway v. Jawala Prasad.30 The case involved disciplinary action against an employee of the railway. The enquiry was conducted by an inquiry committee consisting of three persons one of whom was replaced by another during the course of hearing. No fresh hearing took place after this change in the composition of the committee; the enquiry continued, and the committee submitted the report to the disciplinary authority. The court held that the proceedings were not vitiated, particularly because here the disciplinary authority did not hear the evidence itself but went by the record prepared by the inquiry committee. In such a context, watching the demeanour of witnesses, which is a relevant factor in asking for hearing de novo, has little meaning. The only difference between this case and the aforesaid High Court cases is that herein the procedural norm adopted was that enquiry was held by one and the decision by another, but in the other cases the disciplinary authority was also the enquiry authority. The position seems clear that a change in the personnel of the adjudicatory body will be immaterial where the evidence is documentary or the demeanour of witnesses is not important. There is no irregularity where the supplementary enquiry is held at the behest of the disciplinary authority by the same persons, who at the time of original enquiry held particular posts, but were in the meanwhile promoted to a higher post.31 But the court has also ruled that it is not at all necessary that the enquiry which had been held in part by more than one enquiry officer should be continued by the same enquiry officer until the end. The post which the members of the inquiry committee held originally might have ceased to exist at a later stage, or one or more of the members of the committee may no longer be available either on account of retirement or due to any other cause. For that reason, it could not be held that the enquiry could not be continued at all. It has been held that the power of revision suo motu by a higher authority of a decision made by a lower authority ought to be exercised within a reasonable period even though no period of limitation is prescribed by the relevant statute. What is 'reasonable' period is a question of fact which is to be answered in the facts and circumstances of each case. "No hard and fast rule can be enunciated in that behalf."32 Some statutes on the concerned body the power to condone the delay, but some statutes do not confer any such power.

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8. ACTING ARBITRARILY An adjudicatory body should not act arbitrarily. Its decision should not be based on 'pure conjectures and surmises without there being any legal evidence to support it.33 The duty of a tribunal has been very well underlined by the Supreme Court in Hindustan Steels Ltd. v. A.K. Roy.34 Speaking in the context of a labour tribunal, the Court emphasized the point that a tribunal must exercise its discretion judicially and not mechanically without weighing the circumstances of the case. It should exercise its discretion in accordance with well recognised principles.35 If a tribunal exercises its discretion mechanically without weighing the circumstances of the case, that would be no exercise of discretion at all. If a statutory tribunal exercises its discretion on the basis of irrelevant considerations, or without regard to relevant considerations, its order will be quashed. One such relevant consideration, the disregard of which would render its order amenable to court interference, would be not following by it the well settled principles laid down in the court decisions binding on the tribunal to whom the discretion is entrusted. The Supreme Court has emphasized in Mahindra & Mahindra Ltd. v. U.O.I.,36 in the context of S. 13(2) of the MR TP Act,37 that the discretion vested in an adjudicatory body is judicial discretion and it cannot be exercised in an "arbitrary, vague and fanciful" manner; it must be guided by relevant considerations. Where a tribunal has disabled itself from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case, or where its conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person can have arrived at it, interference by the court will be justified.38 Applying this principle, the Punjab High Court ruled in Prem Chand v. State of Punjab,39 that the 'best judgment' assessment of a tax should not be arbitrary, and must be based on some reasonable data and not merely on imagination. In the instant case, the best judgment assessment order was quashed as being arbitrary and not being in accordance with the principles of natural justice. The Court emphasized that the tax assessment officer should make honest enquiries from sources other than the assessee before assessing the tax. After having collected the necessary information, the tax assessing officer should communicate the same to the assessee and give him an opportunity to show that the material was faulty and that it could not be made the basis of the assessment. The 'best judgement' assessment should be an 'honest estimate'. Similarly, the Andhra Pradesh High Court has ruled that the 'best judgment' assessment must be based on some relevant dependable data and it cannot be arbitrary; it is liable to be set aside if the data relied upon by the assessing authority smacks of arbitrariness.40 An example of exercise of discretion by an adjudicatory body on extraneous considerations is furnished by Shardaben v. Pandya.41 The Motor Accidents Claims Tribunal42 considered the question of condonation of delay in filing the claim not according to the specific statutory provision in the Motor Vehicles Act,43 but by invoking S. Sections 5 of the Limitation Act. The Court quashed the tribunal' order and sent back the case to it for fresh determination. Patiala Bus v. State Transport Appellate Tribunal44 illustrates the principle that a tribunal decision is void if the tribunal fails to take into account relevant considerations.45 S. 47 of the Motor Vehicles Act, 1939, laid down the considerations which the Regional Transport Authority was required to take into account in granting stage carriage permits. The main considerations were the interest of the public in general, and advantages to the public of the service to be provided, and these would include, inter alia, consideration of such factors as the experience of rival claimants, their past performance, the availability of stand-by vehicles with them, their financial resources, the facility of well established workshop possessed by them etc. In the instant case, the State Transport Appellate Tribunal failed to take into account these considerations. It proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. It merely considered what would be fair between the two claimants. The Supreme Court characterised this as an erroneous approach, for the question to be considered by the tribunal was not as to what would be fair as between the two claimants but what did the interest of the public, which was to be provided with an efficient and satisfactory service, demanded. The order of the tribunal was held to suffer from an infirmity as it failed to take into account relevant considerations and proceeded on the basis of irrelevant considerations and thus the order was quashed. As the order of the Transport Commissioner also suffered from the same infirmity, that order also had to be quashed and the matter remanded to him for determination afresh, having regard to the relevant considerations. Ajantha Transports v. T.V.K. Transports46 illustrates the principle that discretion exercised by a tribunal on

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irrelevant grounds may vitiate its decision. After referring to S. Sections 47, Motor Vehicles Act, the Court observed as follows in Ajantha :47 an exercise of the permit issuing power, under Section 47 of the Act, must rest on facts and circumstances relevant for decision on the question of public interest, which has to be always placed in the forefront in considering applications for grant of permits. Consideration of matters which are not relevant to or are foreign to the scope of powers conferred by S. 47 will vitiate the grant of a permit under Section 47." On the effect of application of irrelevant considerations by the tribunal, the Court observed :48 A grant or its refusal on totally irrelevant grounds would be ultra vires or a case of excess of power. If a ground which is irrelevant is taken into account with others which are relevant, or, a relevant ground, which exists, is unjustifiably ignored, it could be said to be a case of exercise of power under Section 47 of the Act, which is quasi-judicial, in a manner which suffers from a material irregularity.49

The Court also stated that whether a particular circumstance is relevant or not has to depend on the facts of each case. What is not relevant in particular circumstances of grant or refusal of a permit may be relevant in another set of circumstances. In the instant case, the Court quashed the order of the State Appellate Tribunal because it acted in a mechanical fashion and without showing the correlationship of facts mentioned by it to public interest as laid down in Section 47. At another place the Court emphasized :50 Quasi-judicial powers have to be exercised fairly, reasonably, and impartially. Capricious or dishonest preferences on purely personal grounds are necessarily excluded here.

Relevancy or otherwise of one or more grounds of grant or refusal of a permit could be a jurisdictional matter. In Dunlop India,51 the Supreme Court quashed a determination by the collector of customs as it was based on an irrelevant factor. It was wrong classification of V.P. latex under a wrong entry so as to subject it to a higher duty. The Court ruled that the customs collector had assessed the duty on the imported commodity on the sole basis of its 'ultimate use' whereas under the Customs Act the "condition of the article at the time of importing is a material factor for the purpose of classification as to under what head, duty would be leviable." The Court ruled that the "basis of the reason with regard to the end use of the article is absolutely irrelevant in the context of the entry where there is no reference to the use or adaptation of the article." In D. Nataraja Mudaliar v. S.TA., Madras,52 a decision of the State Transport Authority, affirmed on appeal by the State Transport Apellate Tribunal, was quashed by the Supreme Court as it was based on an untenable ground. A quasi-judicial order based on vague grounds,53 or on no evidence,54 is an invalid order. Recently, the Supreme Court quashed a decision of CEGAT as it was based on a non-existing ground.55 In Kays Concern v. Union of India,56 a decision of the Central Government in appeal from a State Government under R. 54 of the Mineral Concession Rules was quashed by the Supreme Court as the Government had not applied its mind to an important consideration which was duly brought to its notice. In Nanjunath,57 the High Court quashed an order of the State Government as it had disregarded the rulings of the High Court. Every quasi-judicial body in a State must follow the High Court rulings unless the same were reversed by the Supreme Court. Even the government while functioning as a quasi-judicial body, in hearing and deciding appeals or revisions, was no exception to this rule and was obligated to follow the High Court rulings.58 A quasi-judicial decision based on irrelevant considerations is bad. However, in Zora Singh v. J.M. Tandon,59 the Supreme Court has ruled that even if amongst the reasons given by an adjudicatory body, some reasons were extraneous or non-existent, but the rest of the reasons were relevant and sufficient to justify the order, the conclusions reached by the body concerned would not be vitiated. Explaining the point further, the Court has stated that the principle that the decision of an administrative body would be vitiated if some of the reasons relied upon by it were extraneous, applies to those cases in which the conclusions are arrived at in subjective satisfaction and not on an assessment of objective facts or evidence.60 The reason is that in a case of subjective satisfaction, it would be difficult for the superior court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But the principle would not apply

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to a case where the conclusions are based on assessment of objective facts and evidence. In Swaran Singh v. State of Punjab,61 the order of the tribunal referred to several grounds, some relevant and existent, and others irrelevant and non-existent. Nevertheless, the order was sustained by the Supreme Court as it felt satisfied that the tribunal would have made the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant and non-existent grounds could not have affected the ultimate decision. The Court stated : "... where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision." Similarly, the Allahabad High Court refused to quash a decision of the State Government under the Control of Rent Act because one of the reasons which weighed with the government was not relevant, as there were other reasons sufficient to justify the order.62 If there was some legal evidence before an adjudicatory body, though some of it was irrelevant, a superior court would not interfere if the findings can be sustained on the rest of the evidence. A superior court, in a writ petition, acts in a supervisory capacity and not in appeal and it does not enter into the question of sufficiency of evidence.63 But a judgment rendered by an adjudicatory body without any consideration of evidence led by the parties before it, but based purely on conjectures and surmises cannot be treated as a judgment at all in the eyes of the law and it amounts to an abuse of power on the part of the concerned authority.64 The municipal assessing authority of reteable value of newly-constructed buildings hears the objections to the fixation of the rateable value and acts in quasi-judicial capacity. Its orders are appealable. It cannot act in an arbitrary fashion ignoring the principles of law laid down by the Supreme Court by falling back on the specious plea that it has no means to act on such principles.65 A certain person purchased a certain parcel of land in auction-purchase and the sale certificate was issued in his favour. Twenty three years after, he applied for corrigendum seeking for correction of the sale certificate so as to include certain other parcel of land in possession of another person which was rejected by the Tahsildar (Sales) but was issued in appeal. The petition of the person in possession of the land in question challenging the corrigendum was dismissed by the Commissioner which was upheld by the High Court. The Supreme Court held that, on facts, the order issuing corrigendum was grossly arbitrary and the High Court erred in upholding the order of the Commissioner.66 9. ACTING UNDER DICTATION Sometimes an adjudicating authority may dispose of a case without applying its own mind in arriving at its decision, or it may act under dictation or direction from a senior authority. In one sense, it may indicate partiality towards the issues in controversy (this partiality arising out of the command of the senior authority); in another sense, it may be said that there was no hearing at all. 'Dictation' means an instruction from a senior authority directing the lower adjudicatory authority how it should decide a particular case. It is now a well established principle that an adjudicatory body is not to be directed or dictated to by senior authorities as to how it should exercise its adjudicatory function. The courts insist that an adjudicator should apply his own mind to the matter before him, exercise his own discretion, decide the matter according to his own lights, and not follow the dictates of his superior, in discharging his adjudicatory functions; no one, not even the concerned department, is entitled to control the functioning of an adjudicatory authority.67 The courts have adopted this stance in order to protect the impartiality and objectivity of quasi-judicial bodies. The discretion of adjudicatory bodies should not be restricted by issue of instructions to them; these bodies should be left free to exercise their minds independently and discharge their functions objectively having regard to relevant considerations under the law and the rules made thereunder.68 Thus, in Mahadayal Prem Chandra v. Commercial Tax Officer,69 the Supreme Court held that the principles of natural justice were violated in the following situation. The Commercial Tax Officer (CTO), while assessing the appellant to tax on the facts as established, was of the opinion that the assessee was not liable to sales tax. Nevertheless, he referred the matter to his senior officer (Assistant Commissioner) seeking his advice. On instructions from the Assistant Commissioner, the CTO imposed sales tax on the assessee. All this was done behind the back of the assessee who had been given no opportunity of meeting the point of view adopted by the Assistant

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Commissioner, and the CTO quietly followed the instructions and advice given to him by his superior officer instead of exercising his own judgment. Criticising the procedure followed in the instant case, the Supreme Court expressed surprise at the manner the CTO dealt with the matter of assessment. The Court pointed out that the CTO while passing the assessment order merely voiced the opinion of the Assistant Commissioner without any conviction of his own. Even though the CTO was satisfied on the materials placed before him that the assessee was not liable to pay sales tax, he imposed the tax on him following the advice of the Assistant Commissioner. The CTO whose duty it was to decide ought to have exercised his own mind and not leave the decision to others. What he did in the instant case was that he did not exercise his own mind but faithfully followed the advice and instructions conveyed to him by the Assistant Commissioner without giving the assessee an opportunity to meet the points urged against him. The Court characterised the procedure as unfair, contrary to the principles of natural justice, and calculated to undermine the confidence of the public in the impartial and fair administration of the sales tax department. A similar thesis has been propounded by the Supreme Court in Orient Paper Mills v. Union of India.70 The assessing authorities under the Central Excises and Salt Act exercise quasi-judicial functions. The Court has emphasized that these authorities are obliged to act in a judicial and independent manner. When an assessment is made by the assistant collector, the collector to whom an appeal lies against the order of assessment cannot control or fetter assistant collector' judgment in the matter of assessment. If the collector issues any directions by which the assistant collector is bound, no room is left for the exercise of assistant collector' own independent judgment. An appeal from the assistant collector to the collector then becomes an empty formality. The directions issued by the collector are thus invalid and the proceedings before the assistant collector will be vitiated. In a number of other cases, the courts have emphasized that an adjudicatory body must exercise its own mind in deciding a matter before it and not act under dictation from any quarter. Thus in Rodrigues,71 the High Court quashed a decision by a mamlatdar acting under S. 7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, on the ground that he had reached the decision mainly because the Chief Minister had decided in that way. The Court emphasized that as the inamlatdar was acting in a quasi-judicial manner he should have decided the petitioner' contention without taking into consideration the alleged decision of the Chief Minister. In P.F. Co-op. Society v. Collector, Thanjavur,72 the collector granted a lease of fishery rights to the petitioner in exercise of his statutory powers under the Indian Fisheries Act. The State Government directed the collector to cancel the lease after issuing a show-cause notice to the licensee. Accordingly, the collector issued a show-cause notice to the petitioner and cancelled the lease. The Madras High Court quashed the collector' order saying that it was wrong on the part of the government to give direction to the collector to cancel the lease. The power to cancel the lease belonged to the collector. Even if he followed the principles of natural justice before cancelling the lease, that did not help the situation for the collector ought to have applied his own mind to the matter and it was not possible for him to do so when he was acting under a direction from the government. In the same line is the Supreme Court' decision in Purtabpur Co. v. Cane Commissioner.73 Under Cl. 6 of the Sugar Order, the Central Government can reserve any sugarcane area for a factory for purchase of sugarcane having regard to the factors laid down therein. The Central Government delegated the power to the State Government as well as the Cane Commissioner of the State. The Cane Commissioner, Bihar, to begin with, made an order reserving 208 villages for the Purtabpur Company, but later modified the order at the instance of the Chief Minister. The Supreme Court quashed the Commissioner' order on the ground that the proceedings before the Cane Commissioner when he was seeking to modify his original order on the representation of another mill was quasi-judicial in nature and though the order was purported to have been made by him, it had, in fact, been made by the Chief Minister and the Cane Commissioner merely carried out the Chief Minister' orders. Another ground for the order' invalidity was that the proposal to modify the reserved area was not made known to the appellant and his objections were not invited in that regard and, hence, there was a contravention of natural justice.74 In Sirpur Paper Mills v. Commissioner of Wealth Tax,75 the Supreme Court quashed the order of the Commissioner of Wealth Tax because he had surrendered his authority and judgment to the Board of Revenue in deciding questions raised by the company in its revision application to him against the order of the Appellate Assistant Commissioner of Wealth Tax. S. 13 of the Wealth Tax Act provides that all officers shall observe and follow the directions of the Board of Revenue. The Court pointed out that these instructions might control the exercise of the power of the officers in 'administrative', but not in ' quasi

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-judicial', matters. Therefore, the Board cannot give instructions to the Commissioner in the discharge of his quasi-judicial function. In the instant case, the Commissioner, from the very inception of the proceedings before him, put himself in communication with the Board and sought instructions from it as to how to decide the company' revision application. The Commissioner exercised no independent judgment of his own but merely carried out the directions of the Board. Under S. 25 of the Wealth Tax Act, "the Commissioner may... call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and may make such inquiry... and... pass such order thereon... as the Commissioner thinks fit." The Court held that the power conferred by Section 25 on the Commissioner is ' quasi-judicial', and not 'administrative', in nature. The expression 'may make such inquiry and pass such order thereon' does not confer any absolute discretion on him and in exercising his power, he must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party, and decide the dispute according to procedure consistent with the principles of natural justice and "cannot permit his judgment to be influenced by matter not disclosed to the assessee nor by dictation of another authority." The Supreme Court has observed in Maharaja Dharmander Prasad Singh :76 "It is true that an exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party ad decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abidication and surrender of its discretion. It would then not be the authority' discretion that is exercised, but someone else'. If an authority 'hands over its discretion to another body it acts ultra vires'. Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority". The Ministry of Finance issued a directive to all nationalised banks that in disciplinary matters against their employees, the advice of the Central Vigilance Commission (CVC) must be invariably followed. In the instant case, the bank imposed the punishment of compulsory retirement on the petitioner on the advice of CVC. He challenged the order on the grund that the punishing authority did not apply its own mind and did not exercise its power in considering the merits of the case, but merely acted on the advice of the CVC as per the directive of the Ministry. The Supreme Court pointed out that the bank itself was of the opinion that the punishment suggested by the CVC was too harsh. Accordingly, the bank had made representations to the CVC but ultimately imposed the punishment as suggested by the CVC. The advice of the CVC was binding on the bank authorities and they could have not have ignored it because of the Ministry' directive. While the rules conferred an unfettered discretion on the Bank' disciplinary authority to impose punishment, in effect, the power was completely fettered by the Ministry' directive. The Court emphasized that the disciplinary authority must exercise its own judicial discretion to impose punishment and not act under the dictates of the CVC. The Court thus quashed the Ministry' directive and directed the disciplinary authority to dispose of the matter according to law.77 Under the relevant statute, the power of issuing a no-objection certificate for construction of a cinema house was conferred on the district magistrate "subject to the control of the State Government." An appeal lay from his decision to the Government. By making a rule, the Government assumed to itself the power to grant the certificate in its absolute discretion. The Supreme Court ruled in State of Punjab v. Hari Krishna Sharma78 that the Government could not completely oust the licensing authority and usurp its function itself. The Legislature contemplated the licensing authority as distinct from the Government. It was the licensing authority which has to act in the first instance and not the government. This case, lays down the proposition that an adjudicatory decision must be rendered by the very authority on which the power has been conferred and not by any other authority, even though it may be higher in rank than the authorized decision-making authority. Again, in State of Gujarat v. Krishna Cinema,79 the Supreme Court ruled that the State Government could not assume to itself the jurisdiction of the licensing authority to issue the licence for a cinema. "Power to issue, revoke or suspend a licence conferred on the district magistrate is exercisable on satisfaction of that officer of certain objective conditions and is plainly quasi-judicial". The Court observed further :

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"It is difficult to appreciate what purpose may be served by giving a right to appeal to the State to a person aggrieved by the order of the licensing authority. If the original order is made under the direction and subject to the control of the State Government a right of appeal against the order of the licensing authority issued under the order of the State Government is a futile formality and serves no useful function."

These judicial pronouncements underline the need of keeping adjudicatory bodies free, as far as possible, from administrative control. Accordingly, the words in the provision "control of the government" have been given a restrictive meaning. The Supreme Court insists that these words cannot obliterate the distinction between the licensing authority and the government, which are two distinct authorities. This means therefore that the government cannot directly interfere with deciding a specific licence application which is the function of the licensing authority itself. Section 8(1) of the Bengal Excise Act provides that the Excise Commissioner shall be subject to the control of the State Government while the collector shall be subject to the control of the Excise Commissioner and of the State Government. The Calcutta High Court has ruled in State of West Bengal v. Ruttonjee & Co.,80 that the expression 'control' in this provision "does not authorise the State Government to make a decision itself or issue a specific direction as to how a case is to be decided." It is not clear however what significance is to be attached to the words "subject to the control of the governmentÏ. There is a strong judicial view that the government cannot even issue, general directions to adjudicatory bodies so as to affect their judicial functions,81 and that the government' control can only extend to administrative and not to quasi-judicial functions. These pronouncements show that the courts seek to promote a wider social purpose, viz., to protect maintain and promote the objectivity, and impartiality of adjudicatory bodies To the extent, adjudicatory functions are discharged not by tribunals, but by bodies having affinity with the Administration, the judicial efforts to immunize these bodies from administrative pressures to the extent possible are most welcome. Many a time, statutes leave a wide discretion to adjudicatory bodies to decide matters raised before them. The statutes do not always lay down the criteria according to which these bodies have to exercise their discretion and thus, there arises a possibility that the discretion may be exercised in wayward fashion. If a number of bodies are adjudicating under a statute in different areas upon similar questions, then there may be a lack of commonness in their approach and different standards may be adopted by different bodies to decide similar questions. If bodies are allowed to exercise their discretion without any guidance, then it may lead to inconsistent decisions creating dissatisfaction in the public mind. It therefore becomes necessary to evolve a mechanism by which vagaries of decision-making by quasi-judicial bodies may be reduced, an element of certainty and objectivity in their decisions introduced, and their decisions become more objective, fair and consistent. To some extent, such a result can be achieved by laying down the relevant criteria to be followed by the bodies in exercising their discretion in the relevant legislation itself. That purpose can further be achieved through the issue of rules under the rule-making power conferred by the relevant legislation on the government. But another mechanism used for the purpose of controlling discretion of quasi-judicial bodies is that of administrative directions. As discussed earlier, the Supreme Court has not relished the idea of issuing administrative directions to control the discretion of quasi-judicial bodies.82 The Court has expressed the view that even general directions cannot be issued to adjudicatory bodies, and that such bodies must be left free to exercise their own judgment independently and discharge their functions objectively having regard to relevant considerations under the law and the rules made thereunder. If any guidelines need to be laid down for adjudicators bodies to follow, then this ought to be done by making formal rules for the purpose and not by issuing informal directions. Even when the relevant law envisages the issue of directions to adjudicatory bodies, the courts have argued that the same can be done only in relation to administrative matters. The Supreme Court expressed its views in this regard in unmistakable terms in the Naidu case83 in which it declared void, after eight years of its operation, a government order which had been issued to lay down standards for the grant of permits under the Motor Vehicles Act. The ostensible reason to do so was the plea that the G.O. travelled beyond S. 43A of the Act. S. 43A of the MVA which conferred power on the State Government to issue directions to the Transport Authority was judicially confined to the administrative, and not to extend to quasi-judicial, functions of the Authority. The real reason, however, underlying the Court' decision, as it was expressed very clearly in the judgment, was the idea that issuing administrative instructions to quasi-judicial bodies amounted to an infringement of the concept of the rule of law. The court expounded the thesis that in exercising their quasi-judicial functions, the tribunals constituted under the Act "must be left absolutely free to deal with the matter according to their best judgment." Similarly,

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the Court invalidated a government order imposing certain restrictions on the Regional Transport Authority in the matter of transfer of a permit of a stage carriage. The Authority' power being quasi-judicial in nature the government was not competent to impose any restrictions upon the exercise of these powers through executive instructions.84 In adopting this approach, the Supreme Court has tried to introduce some impartiality and objectivity in adjudicatory process. It has already been pointed out earlier85 that the technique of administrative directions is not by far the best method and that it is open to several objections. The Rajasthan High Court has ruled in Godika,86 that the directions issued by the Interstate Transport Commission under S. 63A(2)(c) of M.V.A. are only of an 'administrative' nature and have no 'statutory' force or sanction behind them and are not binding on the State or regional transport authority in their discharging the quasi-judicial function. The court has emphasized that these bodies should independently exercise their minds and adopt judicial approach in the discharge of their quasi-judicial duties and decide the matter objectively having regard to all the relevant considerations prescribed under the Act and the rules framed thereunder instead of committing themselves solely to the directions given by the I.T.C. In the instant case, a decision of the STA was quashed because the directions issued by the I.T.C. heavily clogged the decision and the judicial discretion of the STA, and, thus, the decision was held to be erroneous on the face of it. Perhaps issue of non-compulsive directions to quasi-judicial bodies may not be regarded as objectionable. In the Naidu case, what the Supreme Court has taken objection to is the issue of compulsive, obligatory, instructions which the tribunal follows as a matter of course, without feeling free to disregard them in its discretion. It follows from this that if the compulsive force from the instructions were removed, and the tribunal concerned were left free to regard them as a relevant factor in exercising its discretion, then there may not be much of an objection. Mark the following words of the Supreme Court in the Naidu case :87 if the Appellate Transport Authority had considered these matters [contained in the instructions] on its own without the compulsive force of the impugned order, it would have been another matter; but the order pronounced by the Appellate Authority clearly and unambiguously indicates that it held and in a sense rightly, that it was bound to follow the impugned order unless in the exercise of its option it decided to depart from it and was prepared to record its reasons for adopting that course. It would, we think, be idle to suggest that any Transport Authority functioning in the State would normally refuse to comply with the order issued by the State Government itself. Therefore we have no hesitation in holding that the decision of the Appellate Tribunal is based solely on the provisions of the impugned order and since the said order is invalid, the decision itself must be corrected by the issue of a writ of certiorari.

These observations could plausibly be interpreted to mean that optional use of instructions as laying down relevant criteria for the exercise of its discretion by a quasi-judicial body may not be objectionable.88 It has already been seen that a common practice now a days is that a dispute between a government department (or a corporation) and an individual may be decided by a departmental official (or of the corporation) itself.89 The Supreme Court has refused to invalidate such an arrangement on the basis of the rule against bias.90 In such a context, the rule being discussed here may be helpful in immunizing the concerned adjudicatory official from departmental pressues to decide a specific dispute in a particular manner. The department is barred from issuing any directive to the adjudicator and he is barred from seeking any guidance from the department, as to how he has to exercise his adjudicative functions. It is for the adjudicator himself to apply his mind to the merits of the dispute and decide the same according to his own judgment. 10. PROMPTNESS IN ACTION An officer of the Indian Revenue Service pronounced a hundred page order on the day following the day on which the hearing was concluded. His superior officer doubted his integrity by drawing an inference that the order might have been prepared before the conclusion of hearing. The Supreme Court held that, there was nothing wrong, if he had prepared prefatory portion and summary of evidence during the days when arguments were proceeding and before the conclusion of hearing, leaving out the crucial discussion to be dictated after the conclusion of the hearing and that his promptitude deserved admiration.91

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11. EXECUTIVE INTERFERENCE WITH TRIBUNAL JUSTICE To keep the fountain of justice pure, the Supreme Court has ruled against executive interference with tribunal justice. The judicial approach can be illustrated in this matter by referring to a few cases. First, in P. Sambamurthy v. State of A.P.,92 proviso to Cl. 5 of Art. 371D of the Constitution was held to be unconstitutional on the ground that it authorised executive interference with tribunal justice. Art. 371D was added to the Constitution by the Thirty-second Amendment in 1973. The proviso to Cl. 5 conferred power on the Government of Andhra Pradesh to modify or annul any order passed by the Administrative Tribunal constituted under Art. 371D. The Supreme Court declared the proviso to CI. 5 as "violative of the rule of law which is clearly a basic and essential feature of the Constitution". The Court reasoned that almost invariably the State Government would be a party in every service dispute brought before the tribunal. The proviso to Cl. 5 thus gave to a party to the dispute the ultimate authority to annul the verdict of the Tribunal going against it. Said the Court, "Such a provision is, to say the least, shocking and is clearly subversive of the principles of justice. How can a party to the litigation be given the power to override the decision given by the tribunal in the litigation, without violating the basic concept of justice? It would be a mockery of the entire adjudicative process."93 S. 67(7), proviso to cl. (vi) of the MVA, 1939, provided that the tribunal "shall give preference" to operators of tourist cars and travel agents approved by the Central Government in the matter of issue of permits for tourist vehicles. The Supreme Court held this provision invalid under Art. 14 as it authorised the executive to interfere with tribunal discretion. In the words of the Court, "To the extent it goes the clause pre-empts the decision of the designated tribunal by executive discretion." Where a tribunal has been created by a statute for the purpose of considering rival claims and granting permits on merits, a statutory provision compelling the tribunal to give preference to persons approved by the executive would be arbitrary and unreasonable. The specific statutory provision in question did not contain sufficient guidelines or the exercise of discretion in granting approval by the Central Government and it had no nexus with the object of the provision under S. 63(7), viz., promotion of tourism." The matter appears to be left to the total discretion of the Central Government.94 In B.B. Rajwanshi v. State of U.P.,95 a statutory provision was held invalid on the ground of conferring uncontrolled and unguided discretionary power on the State Government vis-a-vis the decision of an industrial tribunal. The State enacted the U.P. Industrial Disputes Act, 1947, setting up a system of industrial tribunals to settle industrial disputes. A clause in the Act [S. 6(4)] authorised the State Government to remit the award of a Labour Court or Tribunal for reconsideration of the concerned adjudicating authority and that authority was to submit the award to the government after reconsideration. The Supreme Court ruled that the clause conferred "uncontrolled and unguided power" over the executive to remit an award for reconsideration. The clause neither required the Government to give reasons for remitting the award for reconsideration of the adjudicating authority nor did it require that the affected party be given a hearing before remitting the award for reconsideration nor did it require the government to inform the authority the specific points on which it was to reconsider the award nor did it impose any restriction on the power of the Labour Court or Tribunal while reconsidering the award. The effect of an order passed under S. 6(4) could be a total annihilation of the award submitted by the Labour Court or Tribunal. Also, S. 6(4) contained no guidelines to regulate the exercise of power by the Government. The Court observed : "The provision cannot be upheld in the absence of necessary statutory guidelines for the exercise of the power conferred by it having regard to the fact that the proceeding before the Labour Court or the Industrial Tribunal is in the nature of quasi-judicial proceeding where parties have adequate opportunity to state their respective cases, to lead evidence and make all their submissions." S. 6(4) was so widely worded that it was likely to result in grave injustice to a party in whose favour an award was made as S. 6(4) could be used to re-open the whole case. Such a power could be used arbitrarily to the disadvantage of one party or the other; the power was capable of serious mischief. The Court refused to accept the argument that the government could seek necessary guidance from the object and content of the Act. The Court stated the principle thus :96 "When once a decision is given by a quasi-judicial authority it would not be safe to confer on any executive authority the power of review or of remission, in respect of the said decision without imposing any limitation on the exercise of such power."

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Under S. Sections 10 of the Industrial Disputes Act, reference of an industrial dispute is to be made by the appropriate government to an industrial tribunal for adjudication. In State of Madhya Pradesh Irrigation Karamchari Sangh v. State of M.P.,97 clarifying the scope and extent of this power, the Supreme Court has characterised it as 'administrative' in nature and has stated that the government has a very limited jurisdiction to examine the patent frivolousness of the demands made before referring the same to the tribunal. In the instant case, certain demands were made by the employees of the Chambal Scheme under the Government of Madhya Pradesh for payment of increased allowances. The State Government refused to refer the demands to the tribunal for adjudication. Quashing the government' refusal to refer, the Court emphasized that "adjudication of demands made by workmen should be left to the tribunal to decide" and that on disputed questions of fact, "the appropriate government cannot purport to reach final conclusions, for that again would be the province of the Industrial Tribunal". The Court emphasized that the government cannot adjudicate and thereby usurp the power of the quasi-judicial tribunal. S. 10 permits the government to determine whether dispute "exists or is apprehended" and then refer the same to the tribunal for adjudication on merits. There may be some exceptional cases in which government may, on a proper examination of the demands, come to the conclusion that the demands are either perverse or frivolous and do not merit a reference. The courts will always be vigilant whenever the government attempts to usurp the powers of the Tribunal for adjudication of valid disputes. In the instant case, the Court ruled that the government itself sought to take a unilateral decision on the workmen' demands which were neither perverse nor frivolous. The government rejected reference of the demands to a tribunal for adjudication on the specious plea that it was not in a position to bear the additional burden. This in reality constituted adjudication and amounted to usurpation of the power of the Tribunal by an administrative authority. The government thus exceeded its jurisdiction in refusing to refer the dispute to the Tribunal and itself assessing the reasonableness of the demands on merits. The Supreme Court directed the State Government to refer all the workers' demands to the Tribunal as, in the opinion of the Court, the demands were such as must necessarily be decided by the Tribunal on merits. Refusal by the government to refer an industrial dispute for adjudication to a tribunal on an irrelevant ground has been held to be invalid.1 The Supreme Court has emphasized that if an industrial dispute raises a question of law, the concerned government should not purport to reach a final conclusion thereon because this matter lies normally within the domain of the industrial tribunal. Similarly, the government should not purport to reach a final conclusion on disputed questions of fact, for this matter also lies within the jurisdiction of the industrial tribunal.2 The Court has thus sought to ensure that the executive does not usurp the legitimate jurisdiction of adjudicatory bodies like industrial tribunals. In State of Bihar v. D.N. Ganguly3 the Supreme Court declined to recognise the existence of an implied power in the Government to cancel or supersede a reference made under S. 10(1) of the Industrial Disputes Act, 1947,4 in respect of an industrial dispute pending adjudication by the Tribunal. The Court said that once a reference has been made, "there appears to be no reason or principle to support the contention that it has implied power to cancel its order and put an end to the reference proceedings initiated by itself'. If the power claimed by the Government were conceded to it, it could then terminate proceedings before the Tribunal at any stage and not refer the matter to any other Tribunal at all.5 However, on the other hand, if the government has once refused to refer the dispute to the Tribunal, it can do so later on.6 The government cannot refer to the Tribunal something which is not an industrial dispute.7 The Supreme Court has stated in K.S. Ramamurthy v. Chief Commissioner, Pondicherry8 that in case of administrative or executive authorities, the government could direct them to carry out their functions in a particular manner. But the same cannot be said of a quasi-judicial body. Although the government may have appointed it, may be paying it salary, and may even have a right to take disciplinary action against it in certain eventualities yet in the very nature of things, where the rule of law prevails, it is not open to the government to control the functioning of a quasi-judicial authority and to direct it to decide a particular matter before it in a particular manner.9 The significant point to note is that even when the parent statute provides for government 'control' over an adjudicatory body, the courts interpret the word 'control' narrowly and confine it to control in 'administrative' matters only and never extend it to the discharge of its adjudicatory functions by the concerned body. S. 8(1) of the Bengal Excise Act provided that the excise commissioner "shall be subject" to the control of the State Government, while the collector "shall be subject" to the control of the excise commissioner and of the State Government. The Calcutta High Court ruled that the term 'control' in this provision "does not authorise the State Government to make a decision itself or issue a specific direction as to how a case is to be decided".10 The theme has been reiterated by the courts in several other cases11 that the authority in whom power to decide is vested by law must decide itself and no other authority, even higher in rank, can decide in its place. Such a judicial stand, no doubt, helps the maintenance of objectivity, autonomy and impartiality in quasi-judicial bodies and

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somewhat immunizes them from administrative pressures to toe the administrative line, It has already been stated earlier that the government cannot issue any directions to quasi-judicial bodies.12 In Jagjit Bus Service,13 the Supreme Court has emphasized upon the transport authorities that they have to discharge the duties imposed on them by the Motor Vehicles Act without waiting for any policy to be announced by the State Government.

12. DISCIPLINARY ACTION AGAINST OFFICERS ACTING AS ADJUDICATORS A crucial question having an intimate bearing on the performance of adjudicatory functions by administrative officials arises as follows : Is an officer exercising adjudicatory functions subject to departmental disciplinary control just as an administrative officer is or whether he enjoys immunity from disciplinary proceedings in respect of his actions performed by him while exercising adjudicatory functions? The significance of this question can very well be appreciated. If an adjudicator is subjected to disciplinary action for what he decides then it will be difficult for him to maintain his objectivity, and not to toe the official line, as and when he decides a dispute between his department and an individual. As we have seen, it is a common practice now-a-days to call upon administrative officials to act as adjudicators as well in disputes between their departments and individuals. If an adjudicator is treated simply as any other administrative officer then there is a real danger that the system of administrative adjudication may lose all credibility in the public eye because then the adjudicator cannot adopt any semblance of independence of approach and he will be tempted to decide what his department wants him to decide in any specific dispute. Justice to the individual may be a casualty. All the rules stated earlier against dictation to an adjudicator and against government interference with adjudicatory process will come to naught if disciplinary action were to be initiated against an adjudicator because the department does not like a decision rendered by him. Accordingly, the Supreme Court has cautioned that.14 " . . . When an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should he taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings... is likely to shake the confidence of the public in the officer concerned and also if lightly to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported discharge of his functions."

In a series of cases, the Supreme Court has sought to ensure to the adjudicators some freedom and immunity from disciplinary action in respect of their adjudicatory decisions. The Court has sought to draw a line of demarcation between what an adjudicator decides and how he decides. The Court has ruled that no disciplinary action can be taken against an adjudicator on the ground that he has rendered a mistaken or a wrong decision. The Court' position is that an error can always be corrected on appeal or revision by the higher body. Therefore, in consonance with this policy, the Court has quashed disciplinary proceedings against adjudicators in several cases. For instance, in U.O.I. v. R.K. Desai,15 the charge against an ITO was that a refund order issued by him in favour of an assessee was irregular. Quashing the disciplinary proceedings against him, the Court said that the charge disclosed no culpability "nor was there any allegation of taking any bribe or trying to favour any party." May be there was some irregularity in his passing the order; if so, the remedy lay in appealing to the higher authority against his order : "... merely because he gives a judicial or quasi-judicial decision which is erroneous or even palpably erroneous no disciplinary proceedings would lie." But an officer acting as an adjudicator is not completely immune from disciplinary proceedings. In Desai, the Court has observed : "If in the discharge of such functions he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all."

In Saxena,16 the Court has observed on the same point : "Where the actions of such all officer indicate culpability, namely a desire to oblige himself or unduly favour one of the

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parties or an improper motive there is no reason why disciplinary action should not be taken."

In Dhawan,17 the Court has laid the following grounds on which disciplinary action can be taken against such officials : (i) (ii) (iii) (iv) (v) (vi)

Where the officer has acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; if there is prima facie material to show recklessness or misconduct in the discharge of his duty; if he has acted in a manner which is unbecoming of a Government servant; if he has acted negligently or that he has omitted the prescribed conditions which are essential for the exercise of the statutory powers; if he has acted in order to unduly favour a party; if he has been actuated by corrupt motive, however small the bribe may be, because Lord COKE said long ago "though the bribe may be small, yet the fault is great."

The instances catalogued above are not exhaustive. Each case will depend upon its own facts. The Court has however cautioned that "for a mere technical violation or merely because the order is wrong and the action not falling tinder the above enumerated instances, disciplinary action is not warranted."18 When a judicial officer acts as an adjudicator, the position is somewhat different. All subordinate judicial officers are under the disciplinary control of the High Court concerned and, therefore, disciplinary action against a judicial officer can be initiated only by a High Court.19 In Zunijarrao Bikaji Nagarkar v. Union of India,20 the Collector/Commissioner, Central Excise was charged for favouring an assessee party by not imposing upon him the penalty, he had no discretion not to impose. The Supreme Court observed that when penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the officer showed "favour" to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. (para 41) Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Central Board of Excise and Customs in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the officer. There is no other instance to show that in similar case the officer invariably impose penalty. (para 42) If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like this officer. Since in sum and substance misconduct is sought to be inferred by the officer having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings. (para 43). 13. GOVERNMENT CANNOT SUSPEND A TRIBUNAL The Karnataka High Court has ruled in Mallappa Murigeppa Sajjan v. State21 that the government cannot suspend the working of a tribunal. Being a quasi-judicial body, it is subject to the supervisory jurisdiction of

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the High Court; it is not subject to government' supervision or control. If the government were to exercise such a power, it will unduly shake the confidence of the litigant public in the impartiality and the status of the tribunal. In the instant case, a tribunal was constituted under the Karnataka Land Reforms Act, 1961, with the deputy commissioner as the Chairman and some non-officials as members. The tribunal started functioning but then the government directed it to suspend its working until further orders. The non-official members challenged the government order as mala fide and as having been taken on political considerations. Their argument was that they belonged to one faction of the Congress party while the government belonged to another faction. The High Court quashed the order saying that under the Act, the government had no power of superintendent and control over the judicial functioning of the tribunal. In the absence of such a power, the government could not directly impinge on the judicial functioning of the tribunal. The tribunal was a quasi-judicial body which was to decide important matters affecting the rights of the individuals as also of the State. It was true that the government had control over the deputy commissioner as an administrative or revenue officer, but this could not give any control over the tribunal as such. When a direction was issued to him as chairman of the tribunal to suspend its work, it was not to the officer as such but to the tribunal. According to the principle laid down in Naidu,22 it was not open to the government to issue a direction to the tribunal and to interfere with its work. The court pointed out that the kind of power claimed by the government "is fraught with grave danger and will unduly shake the confidence of the litigant public in the impartiality and status of the members of the tribunal and is destructive of our legal and judicial system." The case brings out vividly the hazards in the way of adjudication by administrative officials which is now too widely prevalent. These officials are under the disciplinary control of the government. How far can an official shed his official character and assume an impartial and objective stance, poses a big question mark.23 Nevertheless, as is obvious from the present discussion, the courts are seeking to lay down some norms to achieve this important objective and instil some regularity in the working of this increasingly significant sector. Attention may be drawn to one aspect of this case. The non-official members of the tribunal were politicians belonging to a political party different from that of the government. May be there was some political element involved in the government suspending the working of the tribunal. This raises a basic question : should politicians be appointed to tribunals as members? Whether appointment of politicians to quasi-judicial bodies is conducive to their proper and impartial working? Will such politically-oriented bodies inspire any confident in the people regarding the autonomy, objectivity and impartiality of the tribunal? Can it function in a non-partisan and non-political manner? Should not there be some norms laid down regarding the composition of tribunals which are supposed to function in a quasi-judicial and objective manner? 14. LOWER ADJUDICATORY BODY TO FOLLOW ORDERS/DECISIONS OF THE HIGHER ADJUDICATORY BODY In Dharam Chand v. State of Bihar,24 the Supreme Court ruled that it is the duty of the lower authority to carry out the orders of the superior quasi-judicial body, and its failing to do so on some ground which it thinks proper (here on the ground of the changed policy) would he subversive of judicial discipline. If the ground warranting disregard of the superior order came into existence subsequent to the making of the order by the superior authority, then the lower authority should make a reference to it. In the instant case the facts were as follows. Under Rule 54 of the Mineral Concession Rules, 1960, the Central Government acts as a revisional tribunal against any order passed by the State Government. The appellant filed an application for grant of a mining lease with the Bihar Government in 1958. When no decision was taken by the State Government, he went in revision to the Central Government in 1961, which passed an order in 1962 directing the State Government to pass orders on his application. But even then no orders were passed by the State Government. Again, he approached the Central Government in 1963. In 1964, the Central Government again directed the State Government to grant the mining lease to him. The State Government took no action and refused to implement the Centre' order. The appellant again approached the Central Government in 1967. This time the Central Government rejected his application through an order passed in 1968. At this stage, the appellant

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approached the Supreme Court under Art. 136. Allowing the appeal, and setting aside the order of the Central Government, the Court pointed out that the 1964 Order of the Central Government directing the State Government to grant the lease to the appellant, was binding on the State Government; it had no discretion to refuse to grant the lease, as the Central Government was a superior tribunal and the State Government, an inferior tribunal. The latter had no choice in the matter. The Court observed : "In fact to take the view that the State Government could decline to carry out the order of the Central Government on some ground which it thinks proper would be subversive of judicial discipline". In this case, the appellant was made to toss like a shuttlecock from the State to the Central Government over a period of several years resulting in a substantial miscarriage of justice. The State Government refused to implement a quasi-judicial order on one pretext or another. Referring to the order passed by the Central Government in 1968, the Supreme Court ruled that in doing so, the government overlooked the fact that it had already earlier passed an order in the appellant' favour. The government entered into the merits of the question afresh as if its earlier order did not exist at all. The Central Government could have revised its earlier order only if some fresh ground came into existence which warranted reconsideration of its earlier order by a tribunal. In the absence of a fresh ground there was absolutely to justification at all for the government to go back upon its earlier order. This case is a sad commentary on the unsatisfactory manner in which the adjudicatory bodies function at times.25 A tribunal is bound by the decions of the concerned High Court.26 15. OVERRULING THE DECISION OF THE LOWER ADMINISTRATIVE AUTHORITY A departmental Screening Committee found that in the interest of the Department, some officials should be weeded out which was upheld by the Revenue Committee where at the Govt. of India passed the order of premature compulsory retirement against an officer though till recently he had been a reputed officer and no one becomes dishonest all of a sudden, observed the Apex Court. However, he was declared to be of "doubtful integrity". The Supreme Court did not agree with the conclusion reached by the Screening Committee and set aside the order of premature compulsory retirement, though it was contended that the members of the Screening Committee were very reputed persons and its conclusion must be given full weight. The Supreme Court observed that it was not a question of doubting their calibre and by declining to agree with their conclusion, no particle of mud is slung on any member of the Screening Committee. The overruling decision of a lower Court or administrative authority does not cast any stigma on such judicial officer or the administrative authority.27 16. STATUTORY ADJUDICATORY BODY NOT TO ASSESS THE VIRES OF THE STATUTE The Supreme Court has ruled that the question of constitutional validity of a statute cannot be raised before an authority which is functioning under the impugned statute itself because it is itself the creature of that very statute. A tribunal can decide only such questions as it is authorised to decide under the statute concerned and the question of vires of the statute is foreign to the scope of its jurisdiction.28 This principle has been extended unduly by the High Courts to hold that a tribunal cannot go into the vires of the rules made under the Act under which the tribunal functions.29 These decisions do not seem to be sound because the tribunal, though the creature of the Act, is certainly not the creature of the rules made under the statute. There is however no Supreme Court case on this point so far. (a) Principle of consequential orders Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime--like the recommendation of the State and by the UPSC and the action taken thereon--would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has

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been taken on the basis of the intial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.30 17. ADJUDICATORY BODY NOT TO REVISE/REVIEW ITS OWN ORDERS It is a well established principle that an adjudicatory authority has no inherent power to review or revise its own orders, or reopen the case, or nullify an earlier order made by it, unless there is an express provision in the parent statute giving it such a power.31 An adjudicatory body has no inherent power to review or revise a decision which it has rendered itself. Such a power must be conferred by law specifically.32 The principle of res-judicata applies in case of quasi-judicial tribunals as well.33 Once an adjudicatory authority makes a decision, it becomes final and can be reopened only if power of review is conferred on the authority by the statute under which it is functioning.34 If it seeks to reopen the case without having authority to do so, it acts wholly without jurisdiction and the order passed on review would be a nullity. The U.P. State Universities Act, 1973, vests in the Vice-Chancellor power to approve an order of dismissal of a college principal. In Kuntesh,35 the management of an institution dismissed the principal but the Vice-Chancellor of the University disapproved the order of dismissal on the ground that the charges against her did not justify her dismissal. But, after some time, the Vice-Chancellor reviewed his earlier order and approved her dismissal. The Supreme Court quashed this order of the Vice-Chancellor saying that "a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction." As the Vice-Chancellor acted wholly without jurisdiction in reviewing his own order, the later order was declared to be a nullity. There appears to be some doubt on one point. In Thakershi, the Supreme Court said that "the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication." Similarly, the Court repeated in Varma v. Union of India36 that the power of review may be conferred "by statute either specifically or by necessary implication". On the other hand, in Kuntesh, the Supreme Court has said that the power of review should be "expressly conferred." There is some discrepancy between these two propositions. Can the power of review be implied from a statute or should it be expressly and specifically conferred on an adjudicatory body to enable it to review its own orders? In view of what the Supreme Court has observed in later cases (Kuntesh, Suman)37 it becomes clear that the power of review cannot be implied; it must be conferred specifically by the relevant statute. Reference may also be made to the fact situation of Dharam Chand,38 mentioned above. In 1962, and again in 1964, the Central Government directed the State Government to grant mining lease to the appellant. When the State Government did nothing, the appellant again approached the Central Government in 1967 and in 1968, this Government rejected his application. The Supreme Court objected to this pointing out that in passing its order in 1968, the Centre overlooked the fact that it had already earlier passed an order in the appellant' favour. The Government entered into the merits of the question afresh in 1968 as if its earlier order made in 1964 was non-existent. The Central Government could have revised its earlier order only if some fresh ground came into existence which warranted reconsideration of the earlier order. In the absence of a fresh ground, there was also absolutely no legal justification at all for the government to go back upon its earlier order. On the same basis, it has been held that when once the customs authorities have allowed export of certain goods, they cannot reopen the matter in the absence of an express statutory authority to that effect in the Customs Act, 1962.39 The competent officer under the Evacuee Interest (Separation) Act, 1951 has no power to review his own order as there is no statutory provision conferring such a power on him.40 A government employee was suspended in 1960; an enquiry followed, and on his filing a written explanation in response to the charge sheet against him, he was exonerated and reinstated in service in 1962. After some time, the case was sought to be re-opened against him. The Supreme Court ruled that it could not be done. Having been exculpated after an inquiry, the State could go at him by re-opening the case only if the rules vested some such revisory power, but no such rule existed. The absence of power inhibited a second inquiry by the disciplinary authority after the person had once been absolved.41 Under S. 27 of the Urban Land (Ceiling and Regulation) Act, 1976, the competent authority can grant permission to the owner of land in excess of the ceiling to sell the same after making such inquiry as he deems fit. When once permission is granted, and the

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land sold on the basis of the permission, the authority is not entitled to review his prior order. There is no provision in the Act granting a review power. The purchaser purchases the land relying on such permission; he is a bona fide purchaser for valuable consideration and in such a situation, a concluded transfer cannot be declared to be a nullity later.42 The director of education, in a quasi-judicial proceeding, passed an order, but later reviewed it and reversed it. The Supreme Court quashed the new order as the director had no power to review his own quasi-judicial decision.43 An interesting question was considered by the Supreme Court in Bachhittar Singh.44 A dismissal order was passed by the Government against an employee. It was challenged on the ground that the Revenue Minister had reduced the punishment from dismissal to reversion, but later on the Government reviewed the order of the Revenue Minister and changed it by enhancing the punishment to dismissal, and that this could not be done. The High Court took the view that a dismissal order could be broken up into two parts : (i) inquiry which is quasi-judicial; (ii) taking the decision as to punishment after allegations against the employee are proved, and this may be regarded as administrative in nature. On this basis, the High Court ruled that the Government was entitled to review the punishment imposed "if it thought administratively advisable to do so." On appeal, the Supreme Court took the view that departmental proceedings taken against a servant are not so divisible. "There is just one continuous proceeding though there are two stages in it." Even the second stage of deciding the punishment to be awarded is also judicial because Art. 311(2) of the Constitution requires a notice to be given to the concerned person. Therefore, ruled the Court, "any action decided to be taken against a government servant found guilty of misconduct is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment." But, in the instant case, the order of the Revenue Minister had not become the order of the Government; it had not been formally issued; it was no more than provisional in character, and so the Government could review it. Until the order is communicated to the affected person, neither the State nor that person is bound by it; and it would be open to the Government to consider the matter over and over again.45 The principle that a quasi-judicial order once passed cannot be modified or reversed later has been reiterated recently by the Supreme Court. The Speaker of the Goa Legislative Assembly decided that a member of the Legislature had become subject to disqualification under the Anti-Defection Law. Later, the Speaker' office became vacant and the Deputy Speaker acting as Speaker reversed the order of disqualification. On the matter being brought before the Supreme Court, it ruled that the Speaker could not review his own order as no power of review was given to him under the relevant law.46 A different situation may however arise if an adjudicatory body reached a decision in the absence of the affected party who was prevented by reasonable and sufficient cause from appearing before it on the date fixed for the hearing. But when he appeared later, the deciding authority refused to hear him thinking that it had no power to cancel its prior order and rehear the party. In such a case, the adjudicatory body concerned has an inherent jurisdiction to rehear the matter on an application of the affected party. As the Supreme Court has observed in this connection, although there may be no express provision in the relevant Act or the rules for the purpose, a tribunal should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties.47 The proposition is illustrated by the following case.48 On the day fixed for hearing, the respondent who had filed an appeal before the Income Tax Appellate Tribunal,49 failed to appear. The Tribunal heard the arguments of the department and dismissed the appeal on merits. Later the respondent filed an application before the Tribunal for restoration and rehearing of the appeal on the ground that he was prevented from illness to attend the hearing on the appointed day and that he had duly sent the information for the same to the Tribunal office but his communication could not be placed before the Tribunal due to some confusion. The Tribunal held that it had no power to cancel its prior order and rehear the appeal when there was no mistake in its order apparent from the record and so it dismissed the application. The matter then came before the Calcutta High Court through a writ petition. The Court held that the Tribunal had not given to the assessee an opportunity of hearing because it thought that it had no jurisdiction to give such an opportunity. Under Section 254(1) of the Income Tax Act, the opportunity of being heard is an essential part of the jurisdiction given to the tribunal by the statute. Therefore, the Tribunal had inherent jurisdiction, though not by any express provision, but ancillary to Section 254 to restore and rehear an appeal disposed of on merits in the absence of a party who was prevented by reasonable and sufficient cause from appearing before it at the date of the hearing. When adequate and reasonable grounds for omission to appear at the hearing are made out to the satisfaction of the Tribunal, it is only a question before the Tribunal as to the adequacy of that opportunity of being heard, which Section 254 enjoins to be given, before the Tribunal is enabled to pass orders in the appeal. The Court, therefore, directed the tribunal to exercise its jurisdiction to consider

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restoration of appeal. Similarly, the Supreme Court has ruled that the industrial tribunal has power to set aside an ex parte award where a party was prevented from appearing at the hearing due to a sufficient cause. Although there may be no express statutory provision for the purpose, a tribunal should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Similarly, when an adjudicatory body has passed an order against a person without hearing him, the authority can reopon the case and pass a fresh de novo order after hearing the parties.50 An adjudicatory body also has an inherent jurisdiction to recall orders obtained by practising fraud on it. A tribunal does not become functus officio for it inheres in it to review by recalling its orders on grounds of fraud, misrepresentation or any other similar grounds.51 For an example of a statutory power of review conferred on an adjudicatory body, reference may be made to S. 13(2) of the MR TP Act, 1969,52 which provides that "any order made by the Commission may be amended or revoked at any time in the manner in which it was made." The Supreme Court has ruled in Mahindra & Mahindra Ltd. v. Union of India,53 that the power conferred by S. 13(2) is a "corrective or rectificatory", power and it is conferred in terms of the "widest amplitude". No express limitation is placed on the power, but, being a quasi-judicial power, it cannot be exercised in an "arbitrary, vague or fanciful" manner; it must be guided by relevant considerations.54 The Disciplinary Committee of the Bar Council, suo motu or otherwise, has a right to review its own decision.55 S. Sections 45 of the Railways Act, 1989, says that after one year of a decision having been given by the Railway Rates Tribunal,56 the Railway Administration may apply to the Tribunal if there has been a material change in the circumstance on which the decision was based and the Tribunal may vary or revoke the decision after making such inquiry as it considers necessary. 18. COURT FEES S. Sections 4 of the Court Fees Act says that a High Court is not to receive any document as regards appeals from the courts subject to its superintendence unless fees are paid as prescribed in the Act. The M.P. High Court considering the question whether Court fees need be paid under the Court Fees Act when an appeal was filed in the High Court from a tribunal established under the M.P. Town Improvement Trusts Act. The High Court ruled that the tribunal in question had almost all the attributes of a civil court in as much as it had to function judicially on the evidence adduced by the parties. The High Court thought that the term 'court' in the Court Fees Act should be interpreted broadly, in its 'widest sense', as including tribunals which perform judicial functions. The High Court also ruled that when an appeal lay to it from a tribunal, then the tribunal is subject to its superintendence for purposes of S. Sections 4 of the Court Fees Act. The High Court also invoked Art. 227 of the Constitution for this purpose. The High Court therefore ruled that the tribunal in question was a 'court' under S. Sections 4 of the Court Fees Act and court fees would be payable on the memorandum of appeal from its decision to the High Court.57 But a different view was taken in the following case.58 An order of a tribunal appointed under the Displaced Persons (Debt Adjustment) Act, 1951, though called a 'decree' by the statute, was held not to be a decree within the meaning of the Court Fees Act, 1870, for the purposes of levy of court fee under the Act on appeals from the tribunal to the High Court. The Supreme Court ruled that an adjudication by the tribunal did not amount to a decree. Thus, on an appeal from the tribunal to the High Court, court fees need not be paid on an ad valorem basis on the value of the total claim. Court fees are to be paid in accordance with Sch. II, Art. 11. This was on the ground inter alia that the tribunal was not a court. The proceedings before the tribunal started with an application and not a plaint and, therefore, a decision of the tribunal did not fulfil the requirements of a decree as mentioned in S. 2(2), CPC, or the Court Fees Act. The Supreme Court also took note of the fact that the Act in question was a beneficent statute meant to advance the cause of the displaced persons by conferring benefits on them, and, therefore, the legislature could never have intended that the claimants should have to pay heavy court fees either in getting their claims adjudicated by the tribunal, or even in filing appeals against its 'decrees'. In case of some tribunals, e.g., Income Tax Appellate Tribunal,59 the fees chargeable are prescribed by the parent statute. In some cases, e.g. the Railway Claims Tribunal,60 Government is authorized to prescribe the fees chargeable by making rules. In some cases, e.g., the Railway Rates Tribunal,61 the tribunal itself is authorised to prescribe fees by making regulations.

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It has also been held that a tribunal can permit an indigent person to file a claim under O. XXIII, CPC.62 19. BREACH OF STATUTORY PROCEDURAL RULES The relevant statute under which a tribunal functions may itself prescribe some procedural rules for the tribunal to follow. The tribunal is bound to observe these rules as well along with the principles of natural justice.63 In case, a statutory rule of mandatory nature is not observed, it may result in the invalidation of the entire proceedings. In Sunil Kumar,64 the appellant complained of the violation of a statutory rule forming part of the All India Services (Discipline and Appeal) Rules, 1969, which provides that the enquiry officer may, "after the member of the services closes his case, and shall if the member of the Services have not examined himself, generally question him on the circumstances appearing against him in evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence against him." The Court rejected the argument that the inquiry officer did not observe this rule and so the proceedings were invalidated. The Court said that the rule was very similar to S. 313, CrPC, and that it was well settled that mere non-examination under this section was not a ground for interference unless prejudice was established. So, failure to comply with the rule did not vitiate the enquiry unless delinquent officer was able to establish prejudice. In the instant case, the High Court had found that the applicant was in no way prejudiced by the failure to observe the requirement of the rule in question.65 20. JURISDICTION It is a fundamental principle of Administrative Law that an adjudicatory body has to function within the confines of its jurisdiction. Anything done by it in excess of its jurisdiction is void. A decision without jurisdiction is inoperative in the eyes of law. If a tribunal has no jurisdiction in law to entertain a dispute, and erroneously proceeds to determine the rights of the parties, the decision will be of no effect. No amount of consent or acquiescence on the part of the parties themselves can create jurisdiction in the tribunal as jurisdiction is created by law and "what is without jurisdiction will remain so.66 The inherent lack of jurisdiction in the tribunal cannot be cured in any way, or supplied, by the act of the parties themselves. Simply the fact that no objection was taken by the parties themselves during the course of hearing by the tribunal to its jurisdiction, would not cure the defect of jurisdiction in the tribunal concerned. When there is absence of jurisdiction, but the jurisdiction is exercised, the dispute goes to the root of the matter. Even if a party appears before a tribunal and does not object to its jurisdiction, it cannot confer jurisdiction on a tribunal of limited jurisdiction which it does not possess and the party cannot be estopped later from filing a writ petition challenging the decision of the tribunal on the ground of lack of jurisdiction.67 The reason is that a decision rendered by a body without jurisdiction is inoperative in the eyes of the law.68 If a tribunal hears an appeal from the decision of a lower authority at the instance of a party not entitled in law to file an appeal, the decision of the tribunal cannot be regarded as being without jurisdiction. It may be regarded as an error of law within jurisdiction but not that of jurisdictional error. If a tribunal having jurisdiction to entertain an appeal decides wrongly that the party has a right to appeal, then the decision is not void as it has jurisdiction to decide. Jurisdiction means authority and power to hear and decide a matter. A distinction is drawn between the jurisdiction of a tribunal to decide a matter and its erroneous exercise of its jurisdiction. The power to decide a matter does not depend on the regular or erroneous exercise of its power to decide, or upon the correctness of the decision, because power to decide necessarily involves powers to decide rightly as well as wrongly. The decision may be erroneous but it is not void for want of jurisdiction.69 When a tribunal has jurisdiction to enter upon an inquiry, the fact that it overlooks an applicable mandatory statutory provision in the course of the inquiry will denude it of its jurisdiction.70 It is a vital function of the courts to ensure that all public authorities act within the limits of their powers.71 But the courts do not unduly circumscribe powers of tribunals and quasi-judicial bodies. Such bodies not only have powers expressly conferred on them by the relevant statute but also such incidental and ancillary powers as are necessary to make fully effective the express grant of statutory powers. Courts may imply in

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case of an adjudicatory body some incidental or ancillary powers so as to enable it to discharge its functions effectively to do justice between the parties. Thus, when a body makes an ex parte decision in the absence of the respondent, and he appears later and wishes to be heard, the body can reopen the matter and give a decision after hearing him. This is deemed to be in consonance with the principle of natural justice. There need be no express statutory provision to authorise the concerned body to do so.72 Similarly, an adjudicatory body can adjourn the matter from time to time or permit a person to file a case before it as an indigent without express statutory authority for the purpose.73 A two-member bench of the Customs, Excise and Gold (Control) Appellate Tribunal expressed doubt about the correctness of an earlier decision by a three-member bench. The Tribunal Chairman referred the matter to a five-member bench. A question was raised about the validity of the action taken by the Chairman. Under S. 129C(5) of the Customs Act, the Tribunal Chairman has power to make a reference to another bench any question on which there is difference of opinion among the members of a bench74 but there is no specific provision authorising him to make a reference to a bench of any question on which there is a difference of opinion between two benches. Nevertheless, in Union of India v. Paras Laminates,75 the Supreme Court upheld the Chairman' action by interpreting S. 129C(5) broadly as including such a power as it was necessary for the healthy functioning of the Tribunal. The Court also implied such a power from "the express grant authorising the President to constitute benches of the Tribunal for effective and expeditious discharge of its functions."76 21. NO APPEAL BY TRIBUNAL In Regional Transport Authority v. Sri Ram,77 the Allahabad High Court has ruled that when the decision of a quasi-judicial tribunal, such as the State Transport Appellate Tribunal, is quashed by a High Court Judge in a writ petition, the tribunal has no right to appeal against the decision, the reason being that a quasi-judicial authority has no personal interest in the confirmation or reversal of its order passed by it in its adjudicatory capacity. An appeal by a tribunal would virtually amount to saying that the decision of the High Court is wrong while its own decision is correct.78 When a writ petition is moved in a High Court under Art. 226 for issue of a writ of certiorari79 to quash a tribunal decision, the concerned tribunal must be made a party to the writ proceedings.80 The reason is that it is necessary to produce tribunal records before the High Court for quashing proceedings if held necessary. Such records can be produced only by the tribunal and not by the petitioner or the State. Therefore, the tribunal whose decision is challenged is not merely a proper party but a necessary party as well. But in a proceeding under Art. 227, the tribunal whose order is sought to be challenged is not a necessary party.81 The term 'tribunal' comprises an adjudicatory body as well. 22. COMMUNICATION OF AN ADJUDICATORY ORDER In Dara Singh v. Director of Enforcement,82 the Supreme Court has underlined the need for communication of orders made by adjudicatory bodies to the concerned persons. The Director of Enforcement, Foreign Exchange, by an ex parte order held the appellant guilty of contravening a provision of S. Sections 9 of the Foreign Exchange Regulation Act, 1947, and thus imposed a fine on him. The appellant was directed to pay the fine within 45 days. As he failed to pay the same, the Director launched criminal prosecution against him. The appellant denied that a copy of the order was served on him, or that he had any knowledge thereof. Holding the appellant not guilty of any offence, the Supreme Court referred to Rule 5 of the Adjudication Proceedings and Appeal Rules which requires the Director to supply a copy of the order made by him free of charge to the person against whom the order is made. The Court said that the service of a copy of the order to the concerned person is not an empty formality. In the absence of any legal provision requiring the Director to pronounce the order in the presence of the affected person, the order is to be deemed to have been effectively made on the date when he comes to know of it either by supply of a copy thereof or by any other means. When non-compliance with the order exposes the person to criminal liability, no penal action can be taken against him for non-compliance in the absence of proof of knowledge to him of the order either by supply of the copy of the order or in any other manner. No person can be convicted for failure to pay the penalty imposed on him by the Director when he is not at all informed earlier about the imposition of the penalty. The information or knowledge which he may gather about such order in the course of the criminal

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proceeding instituted for its non-compliance, cannot be a substitute for the knowledge of the order as mentioned above, which would ordinarily precede the institution of such proceedings. Also, the Court ruled that when an appeal lies from an order. The (date of his knowledge of the order is the order for computing the period of limitation irrespective of the date on which it is actually made. "It would be wholly unjust to compute the period of limitation to file an appeal from a date earlier than the date on which the party who is entitled to prefer an appeal has the knowledge of the order." In the context of a dismissal order passed by the government on one of its employees, and such an order is regarded as a quasi-judicial order,83 the Supreme Court has ruled that "it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order.84 Similarly, the Supreme Court has emphasized in Ajantha85 that when an order is passed transferring the income-tax assessment case of an assessee from one ITO to another, the order must be communicated to the assessee concerned. Communication of the order is an absolutely essential requirement. Under FERA, the concerned person has a right of appeal to the appellate board.86 In case of an order which is appealable but is not pronounced in the presence of the affected person, the date of his knowledge of the order is the date of the order for computing the period of limitation irrespective of the date on which it is actually passed. "It would be wholly unjust to compute the period of limitation to file an appeal from a date earlier than the (date on which the party who is entitled to prefer an appeal has the knowledge of the order.87 Under S. 35 of the Central Excises & Salt Act, the Collector of Central Excise, Madras, was directed by the Central Board of Excise & Customs to file an appeal against his own orders to the tribunal. (S. 35E(1)). Under S. 35E(3) of the Act, no order can be made under sub-secs. (1) and (2) after the expiry of "one year from the date of the decision or order of the adjudicating authority". The Collector' order under appeal was made on 28-11-1984. A copy of the order was sent to the respondent on 21-12-1984 which he received on the same day. The question was from which date 28-11-1984 or 21-12-1984 was the limitation of one year to be counted within which the Board could make its order directing the Collector to appeal to the Tribunal against his own order. The Supreme Court ruled in Collector of Central Excise, Madras v. M.M. Rubber & Co.88 giving its literal meaning to S. 35E(3), that the period of one year ought to be counted from the date on which the Collector finally made his order, i.e. 28-11-1984. The date of communication of the order to the party whose rights are affected is not the relevant date for the purpose of determining whether the Board has exercised its power within the prescribed period. 23. DOCTRINE OF STARE DECISIS Unlike the courts, adjudicatory bodies are not bound by their own decisions. The doctrine of stare decisis does not apply to such bodies except that an adjudicatory body may be bound by the decision of a body higher in the hierarchy, or the decisions of the concerned High Court or, ultimately of the Supreme Court.89 In case there is no such binding precedent, an adjudicatory body may differ from its earlier decision if it thinks proper to do so in the circumstances of a case. However, in the interests of orderly administration of justice, uniformity of decisions of an adjudicators body is better than inconsistency in decisions. It is preferable that an adjudicatory body decides the cases raising the same point in the same way, otherwise, public grievances are bound to arise. Too frequent changes in the opinions of an adjudicatory body would create uncertainty in the public mind. In Union of India v. Paras Laminates,90 the Supreme Court has emphasized upon adjuricatory bodies that they ought to adopt a consistent approach.91 The Court has emphasized that one bench of a tribunal should not lightly disregard an earlier decision of another bench of the same tribunal, particularly, when the earlier decision is rendered by a larger bench. "The rationale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising judicial functions will follow the reason or the ground of the judicial decision in the earlier case on identical matters." Judicial inconsistency would shake public confidence in the administration of justice. But this does not mean that any erroneous earlier decision ought not to be corrected. But, in such circumstances, it is "but natural and reasonable and indeed efficacious" to refer the case to a larger bench. In Paras Laminates, the correctness of a two member decision of CEGAT was doubted by another two-member bench and so it was referred to a three-member for

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reconsideration. The Supreme Court commended the practice.92 Reference may be made in this connection to an English case HTV Ltd. v. Price Commission.93 Lord DENNING emphasized that it was the duty of the Price Commission "to act with fairness and consistency." If the commission has interpreted the words of the relevant Act in a particular sense-or regularly applied the Act in a particular way--it should continue to interpret it and apply it in the same way thereafter unless there is good cause for departing from it. At any rate, the concerned body should not depart from it in any case where it has, by its conduct, led the concerned person to believe that he can safely act on that interpretation of the law or on that method of applying it, and he does so act on it. It is not permissible for it to depart from its previous interpretation and application where it would not be fair or just to do so. If it does so, it may amount to misuse of power.94 24. CONTEMPT OF ADJUDICATORY BODIES Section Sections 3 of the Contempt of Courts Act, 1952, and now S. Sections 10 of the Contempt of Courts Act, 1971,95 vest a High Court with the same power in respect of contempt of courts subordinate to it as it has in respect of contempt of itself. The High Court can deal with the contempt of a court subordinate to it either suo motu, or, on a reference made by the Advocate General.96 An interesting question which has been raised in respect of the above provisions is whether the adjudicatory bodies outside the court hierarchy fall within the scope of the term "courts subordinate" to the High Court. The word 'court' is not defined in the Contempt of Courts Act. So, two questions arise for purposes of S. 10 : (1) (2)

Is the body in question a court for the purpose of the Act? Whether it is subordinate to the High Court?

Only when these two conditions are fulfilled, can a High Court take cognizance of the contempt of the body concerned. As we shall see later, under Art. 227, a High Court has superintendence over all courts and tribunals within its territorial jurisdiction.1 The word 'tribunal' in Art. 227 has been broadly interpreted so as to include practically all adjudicatory bodies.2 Accordingly, it has been held that a High Court can deal with matters of contempt in respect of an adjudicatory body which falls under its judicial superintendence under Art. 227, and which can be regarded as a 'court'. For S. Sections 10 of the Contempt of Courts Act, what is necessary is not that the body concerned must fall within the hierarchy of courts under the Civil Procedure Code or the Criminal Procedure Code, but that it must be subordinate to the High Court, i.e.'subordination' for the purpose of Sec. Sections 10 of the Contempt of Courts Act means judicial subordination and not 'subordination' within the hierarchy of courts. As the Supreme Court has explained in Board of Revenue v. Vinay Chandra.3"The phrase 'subordination to it' used in S. 10 is wide enough to include all courts which are judicially subordinate to the High Court even though administrative control over them under Art. 235 of the Constitution does not vest in the High Court". For an adjudicatory body to be regarded as a 'court' for the purposes of S. Sections 10 of the Contempt of Courts Act, the Supreme Court has laid down the following test in Brajnandan :4".... in order to constitute a court in the strict sense of the term, an essential condition is that the court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of judicial pronouncement..." Thus, the Supreme Court has held in Jugal Kishore v. Sitamarhi Central Co-operative Bank5 that the Assistant Registrar functioning under the State Co-operative Societies Act could be regarded as a court subordinate to the High Court while exercising adjudicatory functions under S. 48 of the Act. He discharges the duties which would otherwise have fallen on the ordinary civil and revenue courts of the land. The Registrar has not merely the trappings of a court but in many respects he is given the same powers as are given to ordinary civil courts by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own order and even exercise the inherent jurisdiction of courts mentioned in S. 151 of the Code of Civil Procedure. Accordingly, the Supreme Court has observed, "In such a case there is no difficulty in holding that in adjudicating upon a dispute referred under S. 48 of the Act, the Registrar is to all intents and

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purposes, a Court discharging the same functions and duties in the same manner as a court of law is expected to do.6 This means that the High Court can deal with matters of contempt of the Registrar of Cooperative Societies. This view has been reiterated by the Supreme Court in Board of Revenue v. Vinay Chandra7 where the Board of revenue functioning under the U.P. Zamindari Abolition and Land Reforms Act has been held as a court subordinate to the High Court for purposes of S. Sections 10 of the Contempt of Courts Act, 1971. The Calcutta High Court has held in Nitin v. V.S.C. Bonarjee8 that the Board of Revenue established in the State by statute, though not a court under the hierarchy of courts under the Civil Procedure Code or the Criminal Procedure Code, yet is a tribunal under the High Court' superintendence under Art. 227, and, therefore, under [S. 10] of the Contempt of Courts Act, [1971], the High Court can deal with matters of contempt with respect to that body. The Disciplinary Committee of the Bar Council under the provisions of the Advocates Act,9 has been held to be a 'court' for purposes of S. Sections 10 of the Contempt of Courts Act.10 Recently, in an elaborate judgment the full bench of the Gujarat High Court has held in Sk. Mohammedbhikhan v. Manager, Chandrabhanu Cinema11 that the labour courts and industrial tribunals under the Industrial Disputes Act, and the Registrar' nominee and the Co-operative Tribunal functioning under the Gujarat Co-operative Societies Act, 1961, all fall within the scope of S. Sections 10 of the Contempt of Courts Act, 1971. After a review of the case-law, the Court has evolved the following four tests for regarding an adjudicatory body as a 'court' for the purposes of the Contempt of Courts Act, 1971 : (i)

(ii) (iii) (iv)

Nature of the power exercised by the concerned authority : The power entrusted to the authority must be judicial power of the state, meaning thereby that the authority must be enjoined to adjudicate upon the disputes between the parties. There must be a lis between the contesting parties presented before the authority for adjudication and decision. Source of the power : It must emanate from a statute and must not be based merely on agreement between the parties. Manner of exercise of power : It must partake of essential attributes of a 'court' though minor trappings may be absent. Binding decision : The resultant or the end product of the exercise of such power by the authority must result in a binding decision between the parties so far as the authority is concerned.

Some of the tribunals have been empowered by the respective statutes creating them to take cognisance of their contempt. Thus, such a tribunal is itself competent to punish a person committing its contempt. The Administrative Tribunal is an example of this.12 The reason to do so is that this Tribunal is a High Court substitute body and not one subject to, or under the superintendence of, the High Court under Arts. 226 and 227. So, a High Court cannot deal with contempt of the Tribunal under the above-mentioned Act. Hence, the Tribunal itself is made competent to deal with the matter of its contempt itself. However, there are some tribunals which, though not equal in status with a High Court, have, nevertheless, been given power by their parent statutes to punish for their contempt like a High Court under the Contempt of Courts Act. Some examples are : MRTP Commission,13 CEGAT.14 According to S. 228, IPC, any one intentionally offering any insult, or causing any interruption to any public servant while sitting in any stage of judicial proceeding, is punishable with simple imprisonment up to 6 months and/or fine up to one thousand rupees. S. 228 becomes operational when the proceeding before the concerned officer is 'judicial' proceeding. To avoid confusion on this point, the parent Act setting up an adjudicatory body usually declares that the proceeding before this body will be deemed to be 'judicial proceeding' for the purpose of S. 228, IPC Thus, for example, S. 10E (4-D) of the Companies Act declares that the proceeding before a bench of the Company Law Board "shall be deemed to be a "judicial proceeding."15 Then there is S. 195 (i)(b), CrPC, according to which if an offence punishable under S. 228,IPC, is committed in relation to any proceeding in any court, then cognizance of such an offence will be taken only on the written complaint of the concerned court. Therefore, if an adjudicatory body is held to be a 'court', then it has

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to make a written complaint to the competent criminal court to take cognizance of the offence committed under S. 228, IPC. Usually, the parent Act creating the adjudicatory body in question will declare the concerned body as a 'court' for the purposes of S. 195(1) (b), CrPC.16 For example, the Disciplinary Committee of a Bar Council has been declared to be a 'court' for the purpose of, and the proceedings before it to be judicial proceeding within the meaning of, S. 228, IPC. The essential ingredients of the offence under S. 228, IPC, are; (1) intention, (2) insult or interruption to be public servant; (3) the public servant sitting in a Judicial proceeding. There is some overlapping between S. 228 and "contempt of court" punishable under the Contempt of Courts Act. Accordingly, the Supreme Court has ruled that if in its true nature and effect, the act complained of really amounts to 'scandalizing the court', then it would amount to contempt of court triable by the High Court under the Contempt of Courts Act. But if the Act complained of does not amount to contempt of court but falls under S. 228, IPC, then it is not triable by the High Court but by a lower criminal court.17 Further, even where the facts of a case disclose an offence under S. 228, IPC, the case may be triable as a contempt under the Contempt of Courts Act, if the act complained of could not be confined to what would be covered by S. 228 only.18 It may be pointed out here that the power of a court to punish a person for its contempt is an important instrument in the hands of the court to ensure that its orders are enforced by the Administration and other parties concerned. Similarly, power to punish for contempt of adjudicatory bodies is necessary to make them effective instruments of dispute settlement. Without such power there remains the possibility that their orders may not be complied with.19 25. COMMENTS ON THE PRESENT ADJUDICATORY SYSTEM AND PROPOSALS FOR REFORM The most difficult and the least orderly segment of the Indian Administrative Law is that of administrative adjudication. The system suffers from inconsistencies and lacks coherence, symmetry and uniformity. There has been a fast multiplication of adjudicatory bodies in India since the Independence. Here only a brief resume of the adjudicatory mechanism outside the court system operating in the country has been given. In reality, the system is much more pervasive and wide-spread than the resume given here would seem to suggest. The truth is that no one has a precise idea as to how many such bodies are functioning in the country, but one can feel that there is a large number of them both under the Central as well as the State laws. Variety is the key note of these adjudicatory bodies. They have been set up under a number of statutes and for different purposes. They vary in their composition, procedure, designation and in the matter of administrative appeals and reviewability of their decisions by the courts. One reason for the diversity is that they have been set up sporadically from time to time, as and when the necessity has been felt for undertaking legislation on specific matters, and have not been created according to any overall plan or blueprint. Though lately some tribunals have been established in the sense of autonomous bodies, yet taking an over-all view of the system of administrative adjudication as it exists, it may be correct to say that there are only a few tribunals,20 and innumerable decisions affecting the right of person and property of the people continue to be made by officials who are an integral part of the government machinery. The picture seems to be haphazard and confused. No principle seems to have been followed in setting up these bodies. Although since the Independence, the courts have decided hundreds of cases pertaining to the adjudicatory activity of the Administration, the truth is that its complexities have not yet been reduced. The courts have not succeeded in laying down clear and general guidelines for these bodies to follow in the matter of procedure, for the courts approach the matter on a case to case basis. Accordingly, judicial pronouncements often suffer from inconsistencies. Uncertainties affect both the adjudicator and the concerned party and, in many situations, they are at their wits' end. Therefore, to improve the status of, and lend credibility and credence in the public eye to the system of administrative adjudication, several significant reforms need be introduced into the system. As stated above, the tribunal system in India has been growing haphazardly, without any over-all plan. Some tribunals have been mentioned above; there are numerous more working in the country21 and some are on

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the anvil.22 An analysis of the composition of the tribunals will show, that a tribunal may be either a single or a multi-membered body. At times, no formal qualifications are prescribed for tribunal membership; at times, a legal qualification is prescribed; in some cases, some technical qualifications other than legal have been prescribed, e.g., a bench of the Income Tax Appellate Tribunal has to have one legal and one accountant member.23 In some cases, the tribunal may be authorised to associate with itself an expert possessing special knowledge of the matters relevant to the enquiry to assist itself.24 The appointment of tribunal-members is in the hands of the government, but in some cases, in practice, some restrictions have been imposed in this regard and the government may not have a free hand in the matter. For instance, the members of the Income Tax Appellate Tribunal are appointed through a selection committee consisting of a judge of the Supreme Court, the President of the Tribunal and the Law Secretary to the Government of India.25 In a few cases, in actual practice, tribunal members are appointed in consultation with the concerned High Court. As regards the tenure of members of the tribunals, either the statutes are silent as to the tenure of members, thus leaving it to the Government to fix the period of appointment, or they may fix the age of retirement, or the maximum age up to which a person can be appointed, or the length of tenure (3 to 5 years). Thus, a member of the district consumer forum is appointed for five years, or up to the age of 65 years; a member of the state consumer commission holds office for five years or up to the age of 67 years; and a member of the national commission holds office for five years or up to the age of 70 years whichever is earlier.26 The reason for differing retiring ages is this : the national commission is to be headed by a retired Supreme Court Judge; Supreme Court Judges retire at the age of 65 years and, therefore, chairman, or member of the national commission remains in office till the age of 70 years. The state commission is to be headed by a retired High Court Judge; High Court Judges retire at the age of 62 years and, accordingly, the retiring age of chairman or member of the state commission has been fixed at 67 years. But there seems to be no rationality in fixing different ages for retirement instead of fixing one uniform age of 70 years for all consumer bodies. If a person can function till the age of 70 years at the national level he can as well function till that age at the state or district level. Fixing of a higher retiring age for the state or district levels will make it possible to appoint experienced persons to the bodies for a full term of five years. Then, the tenure of the Chairman/member of the Appellant Authority for Industrial & Financial Reconstruction27 has been left to the discretion of the Central Government but it cannot be more than five years and the retiring age is 65 years. Although in theory a retired Supreme Court Judge is eligible to be appointed as the Chairman of the Authority, in practice, it cannot be done because a Supreme Court Judge retires at the age of 65 years which is also the retiring age in case of the Authority. There seems to be no reason why the age of retirement cannot be fixed in the case of this body as well at 70 years if the same can be fixed for the National Consumer Forum. As for termination of service of tribunal members, the position is not uniform; in many cases, the power to terminate the services of members of the tribunals is in the hands of the government under the various statutes. In some cases, e.g., M.R.T.P. Commission, a member can be dismissed from office only on the prescribed grounds and that, too, after an inquiry and report by a Supreme Court Judge.28 But in some other cases, e.g., consumer forums, the power of removal vests in the government. Differences exist as regards eligibility of members for re-appointment. In MRTP Commission, Company Law Board, CAT, members can be re-appointed after the expiry of their term, but a member of a consumer forum cannot be re-appointed. As in some cases, the judicial officers act as tribunal members, "the High Courts come into the picture, and the government does not have an unfettered power to take disciplinary action against them or terminating their services."29 Looking at the Indian scenario, it will not be wrong to say that so far the tribunal system is relatively in a backward state as compared to its counterpart in Britain. One would certainly like to assess whether or not the norms evolved in Britain to improve the system of tribunal adjudication, have any relevance to the situation in India. Recently, some court-substitute tribunals have been established in India. The Supreme Court has laid down some guidelines for organisation of such tribunals in Sampath Kumar.30 But no guidelines exist so far as regards the tribunals which fall outside this category. It is important to maintain the independence of these tribunals as well. In Britain, the Franks Committee made a number of suggestions to achieve this goal, and most of these recommendations have been put into effect.31 In India, nothing of the kind has happened so far.

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It also needs to be stated that great care ought to be taken in establishing court-substitute tribunals. As Awadesh32 shows, there is judicial resistance to establishing such tribunals under State laws if they are freed from the supervision of the High Courts. There is a very good reason for such a judicial attitude. In practice, such a tribunal becomes by and large free of any effective judicial control as recourse to the Supreme Court from remote corners of India by parties dissatisfied by tribunal decision will not be feasible. Therefore, as far as possible, state tribunals must remain subject to the High Court supervision. The Centre also ought to be extremely careful in establishing court-substitute tribunals lest they should become a law upto themselves in the absence of effective judicial control. Reference has already been made to the system of departmental officials adjudicating upon disputes between government departments and individuals.33 There is no requirement that an adjudicator be a person well-versed in law although he is called upon to appreciate evidence and decide questions of fact as well as of law. Although the Supreme Court has upheld the validity of the system and refused to invalidate it on the ground of bias,34 the fact remains that such a system can hardly inspire any confidence in the public as there is too much identification between the decision-maker and one of the parties to the dispute. In such a scheme of things, the objectivity and impartiality of the decision-maker will always remain suspect in the public eye.35 The system needs to be improved and either of the two alternatives may be adopted for the purpose, viz., disputes between the departments and the individuals be decided either by tribunals, or, independent adjudicatory bodies on the lines of the administrative law Judges in the U.S.A. In the U.S.A, the Federal Administrative Procedure Act sets up a corps of independent hearing officers, who are known as administrative law judges. These judges preside at hearings and render initial decisions from which appeals can be taken to the concerned agency.36 It is necessary to reduce diversity, and introduce some uniformity, in the area of administrative adjudication. It may be necessary, in order to evolve a coherent scheme of things, to adopt a process of co-ordination and consolidation of the multifarious adjudicatory bodies. Adjudicatory functions having a common denominator now being discharged by separate bodies may be merged and allotted to one adjudicatory body. Keeping in view the principles of justice to the people, the system needs to be re-organised so as to reduce unnecessary diversity. Adjudication of such matters as only involve decision on law and facts without involving any policy questions should be entrusted to tribunals and not to departmental officials for adjudication. There are many matters for which there appears to be no compulsive need for either a department or an administrator to adjudicate, either in the first instance, or on appeal from decisions of the lower adjudicatory bodies. For such matters, tribunals ought to be established for a more regular, formal and objective assessment of the issues involved. Appellate functions from decisions by the administrators in the first instance should in any case be entrusted to tribunals and not to administrative personnel. This is one of the significant recommendations made by the Franks Committee.37 It is also necessary to evolve some mechanism so as to reduce policy bias in adjudications by the administrators.38 To take only one example, why cannot the Appellate Board under the Foreign Exchange Regulation Act be converted into an autonomous tribunal consisting of non-officials as its members instead of keeping it as a body, as at present, manned purely by officials.39 Whether in a given fact-situation there has been a violation of the FER Act or not is a pure question of law and facts and involves no policy overtones. There is the further question of supervision over tribunals and other adjudicatory bodies functioning in the country. As has already been pointed out, realising the importance of proper procedures being followed by adjudicatory bodies, and for supervising their functioning, Britain has established the Council on Tribunals. Its functioning has already been explained earlier.40 A body of this type needs to be established in India as well. Setting up of such a body having supervisory role over the whole gamut of administrative adjudication will have a beneficent effect on the system in India. The proposed body should have supervisory jurisdiction not only on the tribunals (as is the position in Britain at present) but on the entire mechanism of administrative adjudication.41 Apart from discharging the functions assigned to the Council in Britain, the proposed Indian counterpart ought to discharge one more crucial function, viz., it should be able to advise from time to time as to what matters should be adjudicated upon by what type of adjudicatory mechanism--court, tribunal, department, or officials, or a statutory body or any other type. It is only through the painstaking labours of a body like the Council over a period of time that a viable adjudicatory system can be slowly and gradually built up. In fact, it may be advisable to devise this body on the model of the Administrative Review Council set up in Australia with functions much wider than the British body.42 In fact,

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India needs to have such a body at the Central level as well as one in each of the States. As already discussed, adjudicatory bodies follow the norms of natural justice subject to any statutory procedural norms which may be applicable to them under their parent statutes and the rules made thereunder. As the discussion on natural justice/fairness shows,43 there prevails a lot of uncertainty and confusion in this area at present. The courts have taken the stand that the principles of natural justice are flexible and variable and that there is no fixed standard of fair hearing applicable in all cases. The courts thus approach the matter of procedure on a case to case basis, and prefer not to make generalisations. It has been judicially emphasized repeatedly that norms of fair hearing depend on the nature and constitution of the adjudicatory body concerned, the function it is exercising, and the statute under which it is acting. This judicial approach results in a good deal of confusion, uncertainty and indefiniteness and inconsistent judicial pronouncements and the results are not always satisfactory as no proposition of law can be laid down with any certainty in the processual area. Oral hearing, legal representation, cross examination of witnesses or giving of reasoned decisions by adjudicatory bodies, none of these is a 'must' in adjudicatory procedure. There is no single rule of procedure universally applicable to all adjudicatory bodies, as there are exceptions to each and every rule. It is agreed that the courts have been expanding the parameters of applicability of natural justice with the passage of time. But on the question whether in a particular fact-situation, norms of natural justice have been observed or not, the courts adopt an equivocal attitude, taking shelter behind the oft repeated thesis that natural justice is not a fixed but a flexible concept. But this thesis is used more often against the affected party to deny him the applicability of some procedural safeguard claimed by him, and rarely against the Administration so as to make it provide better procedural safeguards. The courts forget that too much flexibility has many disadvantages and may defeat the very purpose underlying the concept of natural justice, and make it a myth, an empty formality without much real substance. The Supreme Court has itself emphasized upon the importance of procedural safeguards thus : "Sometimes processual protections are too precious to be negotiable, temporised with or whittled down.44 But this sentiment is not often translated into practice. Much of the benefit of the expansion of the right to be heard is neutralised, in practice, by the courts taking too indulgent, flexible and lenient a view of what constitutes fair hearing. At present, the flexibility of the norms of natural justice results in practice in a confusing diversity of procedures followed by adjudicatory bodies. The confusion has become worse confounded because of the flexibility of the concept of natural justice, frequent changes in judicial opinions regarding the content and scope of the principles of natural justice, and the various exceptions and limitations which courts have thought fit to impose on the various procedural norms.45 Though, since Independence, hundreds of cases have been decided pertaining to adjudication by quasi-judicial bodies, yet the truth remains that the area bristles with a good deal of complexity, indefiniteness and vagueness. Up to a point, flexibility in the area may be justifiable on the premise that since there is a wide variety of adjudicatory bodies functioning in the country, the courts should have freedom to modulate the hearing procedure to the practical needs of the specific body in question so that adjudicatory process (as well as administrative process) is not unduly hampered by being put in a procedural strait jacket. But the courts have failed to lay down even the minimum guidelines or norms of natural justice which may be applicable to all situations because the courts prefer to decide the matter from case to case and avoid laying down strict or specific rules and insisting on their observance by all adjudicators. This has resulted in a great variance in judicial views on questions of procedure. The result is that the area of administrative adjudication has become too much involved and complex. Too much pragmatism is the enemy of consistency and principle. To say this is not to decry the role played by the courts in the process of evolving norms of procedural due process and in supervising the functioning of the numerous quasi-judicial bodies discharging all kinds of functions, and having varied composition and procedure. Part of the uncertainty in the area arises because the courts constantly strive to strike a balance between personal interest, which is served better by strict procedural norms, and the social good and administrative exigencies which may be jeopardised if courts scrutinise the procedures of adjudicatory bodies in depth and liberally quash their decisions for violation of principles of natural justice. It is a very difficult task to strike such a balance in the numerous and varied situations which arise for adjudication. In spite of the best efforts of the courts to discharge their task conscientiously, the fact remains that the case-law around natural justice in India is voluminous and suffers from many inconsistencies and incoherencies, so much so that neither the adjudicator nor the person affected can have a clear perception

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as to the procedures which should be followed in a given adjudicative situation. This vague situation many a time results in an embarrassing situation to all concerned as no one knows for sure where lie stands in the matter of procedure. Many a time, the adjudicator himself will be at a loss to decide whether he is bound to follow a specific procedural norm or not; the party affected cannot always be sure whether the procedure followed is consistent with natural justice or not, whether he can or should insist on any procedural norm before the adjudicator, and whether he can get relief from the courts for non-observance of a procedural norm, and yet the party runs the risk of being denied relief on the ground of waiver.46 Only the courts can decide these questions ultimately as and when the occasion arises for such decision. Till then every one has to grope in the dark. Today the law as regards procedures is completely unpredictable. At times, adjudications may be quashed by the courts for non-observance of one processual norm or another which results in embarrassment to the Administration. But, on the other hand, there are many cases where the courts have taken an indulgent view of the matter and have refused to interfere even when the procedure followed by the adjudicatory body in question was not entirely satisfactory.47 The fact also remains that at times adjudicatory bodies discharge their functions in a very perfunctory and casual manner and the courts have had occasion to comment adversely on the way the adjudicatory bodies at times act. Reference may be made in this connections inter alia to such cases as Siemens,48Dharam Chand,49 Mahadayal,50Blaze,51 and Mahabir Prashad.52 Most of the lapses arise because the adjudicators being primarily administrators are not fully cognizant with legal niceties and they regard their adjudicatory functions merely as an extension of, and appendage to, their normal executive and administrative functions. The situation may become all the more critical with the passage of time as the system of administrative adjudication is on its way to further proliferation. The danger in the situation is that in the absence of any concept of minimal procedural norms, the substance or the essence of natural justice may disappear, and only its form and shadow remain. Natural justice may then become an empty procedural formality without any real substance, without affording much protection to the affected party. Further, the newly emerging concept of fairness is making things all the more vague; it is not clear whether fairness is synonymous with, or is more, or less, than natural Justice.53 Many court pronouncements leave behind the uncomfortable feeling that too often the courts have taken a lenient view of the procedural lapses by adjudicatory bodies; they condone such lapses by invoking the theory of no-prejudice to the party complaining of such lapses; and the result is that, in the process, natural justice has been denuded of much of its substance. Of late, the courts have been expanding the application of the concept of natural justice/fairness to new and new situations. But, with this, the concept of fair hearing procedures is also becoming more and more amorphous. One of the strategies through which such a danger can be averted is for the courts to remember that natural justice is not an empty ritual merely or a formal incantation, but is meant to provide effective procedural safeguards to the party affected against an undue or improper use of power. Therefore, the courts should seek to explore for the maximum procedural safeguards feasible in a given situation, rather than be satisfied with the minimum procedures, consistent with the structure, powers and functions of the adjudicatory body concerned and the exigencies of the situation. The truth remains that the courts have not yet been able to evolve any integrated theory of procedural due process. To improve the situation, it is necessary to have some minimum fixity as regards the norms of fair hearing. A more effective reform, as suggested above, may be the enactment of a legislation on the lines of the Federal Administrative Procedure Act, 1946, in the U.S.A., laying down the irreducible minimal norms to be followed by adjudicatory bodies.54 This Act seeks to provide some minimal safeguards to the individual against administrative process keeping at the same time flexibility for the Administration to provide for better safeguards in a situation if it so desires. The American Procedure Act provides "a continuing standard by which such (adjudicatory) actions can be judged and a continuing reminder that efficient working cannot be the sole aim of the Administration."55 The statute was the "culmination of over a decade of reformers' efforts." The Act "represents a moderate adjustment on the side of fairness to the citizen in the never ending quest for the proper balance between governmental efficiency and individual freedom." There seems to be a strong case for enactment of such a statute in India laying down minimum procedural standards for adjudicatory bodies. In 1958, the Law Commission in India made a recommendation to this effect but this has come to naught so far. The Commission stated that legislation providing for a simple procedure embodying the principles of natural justice for the functioning of the various tribunals may be passed. Such provisions should be applicable to

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the functioning of tribunals in the absence of any special provisions in the statutes constituting them.56 Such an Act may help in reducing the great diversity which exists at present in judicial pronouncements on the question of components of fair hearing. It may be of interest to know that even in Britain, opinion in support of some such measure is growing. As Wade states, it would help if enactment of such an Act can be secured prescribing fair procedures for tribunals and general administration. The Franks Committee idea of individually tailored rules for individual tribunals has perpetuated a degree of ignorance among the practitioners as to the procedures followed by administrators and tribunals.57 It has been suggested that over a period of time, the Council on Tribunals has evolved certain basic norms of tribunal procedure and it will be very helpful if these principles are embodied in a statute for tribunals and other adjudicatory bodies to follow. In Australia, the Kerr Committee reporting in 1971 recommended that legislation prescribing minimum procedural standards for adjudicatory bodies be enacted.58 In Canada, the Province of Ontario has enacted the Statutory Powers Procedure Act, 1971, Part I of which lays down the minimum rules for proceedings of certain tribunals. This is in effect an attempt to codify the rules of natural justice as regards the requirement to have a hearing.59 In New Zealand, certain guidelines have been laid down for the purpose. Such a law would help in strengthening and ascertaining procedures to be followed by adjudicatory bodies. Today these procedures are completely left to judicial and administrative discretion. The advantages of having such a law are many. It will concretize to some extent the present day amorphous and uncertain procedural norms, which cause difficulties and confusion both to the Administration as well as the people concerned. Laying down of minimal norms of fair hearing to be observed by various adjudicatory bodies will give the much needed guidance to both the adjudicators and the persons affected. Most of the adjudicators are not lawyers by training but are civil servants and it may not be possible for them to keep abreast of shifts in judicial attitudes as regards norms of fair hearing. The present day fluid position in which it is not easy to spell out with any reasonable certainty the "musts" of fair hearing is not conducive to good administration or substantial justice. Clarity in this area is a great desideratum. A simple code will help the adjudicators a good deal and many inadvertent mistakes on their part will be avoided. With the laying down of norms, adjudicative process would become more orderly; judicial supervision thereon would also be strengthened; and chances of unfairness and injustice to the individual concerned minimized. The articulation of procedures of adjudication assumes a much greater significance from the point of view of the individual if it is remembered, and this will be seen later in this book, that the courts, by and large, adopt an attitude of indulgence towards, and interfere only in exceptional circumstances with, administrative decisions on questions of fact or law.60 It is necessary that a citizen should get fair-play, that adjudicatory bodies give a fair hearing and do nothing which may offend the citizen' sense of justice. Another line of reform may be to consider setting up a Central Appellate Tribunal just below the Supreme Court to hear appeals from all tribunals and other adjudicatory bodies. As becomes clear from the structural organisation of the Central Administrative Tribunal (CAT),61 the tribunals to be established under Arts. 323A and 323B, may be regarded as equivalent to the High Courts,62 and appeals from these tribunals lie only to the Supreme Court, and the High Courts have no control over them. Several disquieting consequences are bound to follow from such an arrangement One, the High Courts will lose their power to issue writs, but the tribunal are not entitled to issue writs which weakens judicial control over administrative action.63 Only, the Supreme Court can issue writs under Art. 32 in a limited category of cases involving fundamental rights.64 Two, the Supreme Court grants leave to appeal under Art. 136 only in exceptional cases65 and, thus, in many tribunal decisions, the aggrieved parties will have to remain satisfied with the tribunal decisions without any appeal to any body which is not quite a happy situation. There must be provision for at least one appeal from every tribunal decision. Further more, it may be difficult for many persons to approach the Supreme Court because of distance and cost. Further, the load of work on the High Courts may lessen somewhat but or Supreme Court it is bound to increase.66 Thus, as the Supreme Court cannot hear many appeals from these tribunals, and the High Courts have no jurisdiction over them, the over-all judicial supervision over these tribunals is bound to weaken in the long run. Also, as will be seen later, judicial supervision over other adjudicatory bodies is also quite weak at the present moment. From this proposed tribunal ultimately appeals on points of law may go to the Supreme Court under Art. 136.67 Such a tribunal will act as a buffer between administrative adjudicatory bodies and the Supreme Court. No appeal will go directly to the Supreme Court from any tribunal or adjudicatory body under Art. 136, and this will reduce the load of work on the Supreme

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Court as well as the High Courts as the Central Appellate Tribunal may be equated in status with the High Courts. Also, the Central Tribunal ought to hear appeals from any adjudicatory body both on law and facts as well as on merits, which the courts do not do now, thus, providing more effective supervision over the adjudicatory bodies in the country. A central appellate body will also help in the emergence of a coherent system of Administrative Law all over the country and also uniform procedural rules applicable to adjudicatory bodies. The Australian model may he used for the purpose.68 The Administrative Appeals Tribunal (AAT) has been established by the Administrative Appeals Tribunal Act, 1975, to review a broad range of administrative decisions on their merits as provided for by the statutes. At present, the AAT exercises its review functions under nearly 300 statutes. This is a general appellate tribunal outside the court system. The tribunal consists of a President and a number of judges who are known as presidential members, and a number of other members who are known as the non-residential members. These members are qualified in such fields as industry, commerce, public administration, industrial relations or a profession. The idea behind appointing these members is that they would bring to the tribunal professional and technical expertise in various fields. The tribunal sits in several divisions. The tribunal reviews law, facts, and discretion. It reviews ministerial decisions even when there are important political and social issues involved. The Tribunal reviews the merits of the decision and whether or not it is correct or preferable one. The tribunal' decision is based on the material before it rather than on the material before the original decision-maker. The tribunal is not confined to the evidence which was before the original decision-maker and it is not bound by his findings of fact. Since the tribunal provides review on the merits, it is able to investigate and determine facts for itself. The tribunal may affirm or vary the decision under review or set it aside and either make substitute decision or refer the matter back to the original decision-maker for further consideration in the light of its directions. On a question of law, an appeal lies from the Tribunal to the Federal Court, or the Tribunal may itself refer a question of law to the Federal Court. The creation of the Tribunal is a radical concept. It is a kind of a super-tribunal hearing appeals on merits from a wide variety of adjudicatory decisions. The Tribunal exercises review power far in excess of the review power exercised by the courts at present. Such a tribunal if established in India would be better able to supervise the functioning of, and review the decisions made in the first instance by, the various tribunals and other adjudicatory bodies. Finally, from what has been said above, it appears to become quite clear that time has come for undertaking a comprehensive enquiry into the various aspects of the totality of the prevailing system of administrative adjudication in the country. It has become necessary that the entire system of administrative adjudication be fully investigated and looked into so that suitable adjustments and improvements may be made therein in the light of developments which have taken place in other common-law countries as well as in accordance with the developed notions of Administrative Law. Thus, a commission needs to be appointed for the purpose of undertaking a full-fledged study of the various aspects of the working of the existing adjudicatory system as a whole, on the same lines as was done in Britain by the Franks Committee.69 It is only after such a thorough-going inquiry has taken place that the deficiencies in the system can be located and identified and suitable remedial measures taken to rectify them, so that an integrated and effective system of administrative adjudication may be developed drawing a balance between legitimate administrative exigencies, on the one hand, and the rights and freedoms of the individual and the constitutional principles, on the other. At times, the court cases reveal unsatisfactory aspects of the functioning of adjudicatory bodies, but these are piece-meal and sporadic; there are innumerable adjudications which are not brought to the notice of the courts even when the persons concerned may feel a sense of grievance. And even when a deficiency is pin-pointed by the court, any remedial action is hardly taken and the unsatisfactory situation continues as ever before. Never before so far such a comprehensive and thorough-going inquiry has been undertaken in India in this important segment of Administrative Process. No doubt some sporadic and half-hearted attempts have been made in the past in this respect. For example, in 1958, the Law Commission made a rapid survey of the developments in the U.K., U.S.A., and France, but did not say much about the organisation, structure, powers and procedures of quasi-judicial bodies in India. The Commission only made a few general recommendations in its XIV Report,70e.g., these bodies should follow natural justice; that they should give

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reasons for their decisions, that the ultimate judicial review of their decisions ought to be maintained; that the French model of Droit Administratif was not practicable in India,71etc. Some enquiries have been made at times by separate bodies into specific areas of adjudication, e.g., as already noted above, the Direct Taxes Administration Enquiry Committee appointed by the Government of India in 1958, and then again, the Direct Taxes Enquiry Committee (Wanchoo Committee), in 1971, and the Direct Tax Laws Committee (Choksi Committee) in 1978 did look into the adjudicatory structures and assessment procedures in the area of direct taxation. These committees made a number of suggestions to improve the situation and some of these have been implemented. Besides, there have been a few more committees to look into certain other specific areas. Thus, the Land Acquisition Committee reported in 1970; the Customs Reorganisation Committee reported in 1958; the National Labour Commission looked into the adjudicatory procedures in the area of Labour Law and reported in 1969; the Monopolies Inquiry Commission enquired into the question of monopolies in 1964-65. But the truth is that these enquiries and investigations cover only small segments of administrative adjudicatory process and have not developed an over-all integrated perspective to cover the entire adjudicatory system. Quite a long time has already passed when these enquiries took place and there remain a large number of bodies adjudicating upon hundreds of cases everyday, and full information is not yet available about the working of these bodies. Even the Administrative Reforms Commission appointed in 1966 did not undertake such a fullfledged study.72 It did set up a study Team on Administrative Tribunals. But, in view of the short time at its disposal, this Team confined its deliberations to the question of advisability of setting up tribunals in a few select areas, viz. : service matters; customs and excise; tax assessment; Motor Vehicles Act; Land Acquisition and Insurance. The Committee suggested setting up of tribunals in some of these areas, the main purport of the recommendations being to provide a tribunal in between the department concerned and the courts so that a full review of the administrative decisions could be had on both facts and law. But the point is that the Committee' treatment of the subject was partial and perfunctory as it confined itself to only a few areas and did not go into the functioning of the entire body of tribunals and quasi-judicial bodies existing in the country. Even the adjudicatory procedures in the areas chosen for study were not surveyed by the committee. It has therefore become necessary to appoint a body which may comprehensively survey the totality of the adjudicatory area in the country. Today, no one has any idea as to how many such bodies actually function in the country? What procedures and practices are followed by them? How are these bodies composed? What are their structures and powers? What functions are discharged by them? What jurisdiction do they exercise? What is their relation to the courts? And what safeguards need to be incorporated into the law so that the individual gets justice from these bodies? Their decisional processes need to be evaluated from the same point of view as was done by the Franks Committee by applying the triple tests of openness, fairness and impartiality.73 There is no doubt that if ever such a study is undertaken, many lacunae will be discovered and many reforms introduced in course of time so that these adjudicatory bodies may become effective instruments of justice. It may also be worthwhile to study whether any of the adjudicatory functions now being performed by administrative agencies may be transferred to tribunals, because many court cases prove that the adjudicatory work performed by administrators is not entirely satisfactory.74 In some allied fields, specialised tribunals may be created either to adjudicate in the first instance, or to hear appeals from the first adjudicatory stage. It will be a very good idea to provide at least one review stage in all administrative adjudications. With the State activism on the increase day by day, and the courts being bogged down by the backlog of cases, it is inevitable that the adjudicatory bodies are going to play even more significant role in the future than what they have done hitherto. It is therefore necessary that the system is properly geared to meet the calls which are going to be made on it in future. It needs to be pointed out that at present courts exercise only a minimal review power over the adjudicatory bodies. Although, in theory, the courts have wide legal powers to interfere with the functioning of adjudicatory bodies as much as they like, yet, in practice, the Supreme Court has imposed restraints on itself as well as on the High Courts in the matter of exercising their review power on these bodies. The, writ jurisdiction enjoyed by the High Courts under Art. 226, has been characterised as 'supervisory' and not 'appellate'. Therefore, a High Court may interfere with an adjudicatory decision within very narrow parameters. For example, the courts do not appraise evidence and leave such appraisal to the adjudicatory bodies themselves. The courts do not go into the question of sufficiency of evidence to support the findings of fact. The courts quash the decisions of such bodies only on such few grounds as no evidence, leave considerations having been taken into account, or relevant considerations having been ignored,

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non-application of mind, failure of natural justice. Adjudicatory bodies thus enjoy a good deal of leeway to decide questions of law and fact and, ordinarily, the courts desist from interfering unduly with the merits of the decisions made by these bodies barring exceptional circumstances.75 By and large, the courts interfere only when they find some serious flaw in the decision making process and, usually, not just on the ground of mistake of law or mistake in findings of fact. Also, as will be clear from the principles underlying administrative adjudication as stated in this Chapter, the courts have consistently followed the policy of promoting the integrity, objectivity and autonomy of these bodies so that they can arrive at their decisions according to their own judgment and not under any outside pressure.76 Also, the courts have sought to lay down principles with a view to cause qualitative improvement in their decision-making. This judicial attitude of noninterference with the decisions of the adjudicatory bodies gives a big leeway to adjudicatory bodies in the discharge of their functions and this has placed a great responsibility on these bodies and they must therefore discharge their functions with understanding and circumspection. Even with the limited jurisdiction which the courts exercise over adjudicatory bodies, there is no dearth of court cases in which the courts have quashed the decisions of these bodies.77 Only if the courts were to probe somewhat deeper into the decisions of these bodies and probe into these decisions on such grounds as relevancy or irrelevancy or sufficiency or insufficiency of evidence or the findings of fact by these bodies, there will undoubtedly be many more instances of quashing of their decisions. The reason is that these bodies are manned by non-lawyers and administrative personnel having no legal training. It is therefore necessary, in the interests of justice, to look into, and seek to improve as much as possible, the organisation, structure and composition of these bodies so that they may be well equipped to discharge their onerous responsibility properly and adequately. Further, as judicial control over these bodies is minimal, chances of these bodies acting in an arbitrary manner become rather high and so it becomes necessary, as suggested above, to have some sort of supervisory mechanism over these bodies, e.g., a body like the Council on Tribunals,' a Central Appellate Tribunal etc. In the interest of justice, there is clear need for a closer review of the decisions of adjudicatory bodies. This task cannot be performed by the High Courts which are already overloaded with arrears of cases. What is necessary, therefore, is to set up the Central Appellant Tribunal to which all original decisions made by adjudicatory bodies (including Tribunals) may be appealable. It is necessary that there be provision for at least one full-fledged appeal from every decision of an adjudicatory body. That all is not well with the present-day tribunal system in the country is demonstrably illustrated by a recent pronouncement of the Supreme Court in R.K. Jain v. U.O.I..78 The Customs, Excise and Gold Appellate Tribunal (CEGAT) came into existence on October 11, 1982.79 At that time, the Chief Justice of India had expressed the hope that "the tribunal will acquire sound reputation as regards decision-making and that litigants would look upon it as an independent forum to which they can turn in trust." That this hope has not been fulfilled even after more than ten years of the working of CEGAT becomes apparent from the said pronouncement. The Editor of the Excise Law Times, in a letter dated December 26, 199180 to the Supreme Court sought a direction from the Court that a sitting or retired High Court Judge be appointed as the President of the Tribunal so that the functioning of the Tribunal could be revitalised and the waning faith of the litigant public in the efficacy of the tribunal adjudication could he restored. The editor mentioned in the letter that there was a tendency in the tribunal to adjourn cases on one pretext or another; there was no work culture with the result that over 4000 appeals and nearly 2000 stay petitions were pending in CEGAT involving revenue worth crores of rupees. The occasion to write the letter was the appointment of 'a non-judicial member (though a lawyer) of the tribunal as its President. Treating the letter as a writ petition under public interest litigation,81 the Court termed the allegations made therein against CEGAT as 'grave' which needed to be thoroughly and properly investigated as these were made by a person who was familiar with the working of CEGAT. The Court criticised the appointment of a non-judge as the tribunal's President and stressed upon the benefits which would accrue if a Judge were appointed to the post. In appointing the President, the Government did not consult the Chief Justice of India which was not in accord with the ruling in Sampath Kumar.82. The Court was very specific on the question of appointment of the Chairman of the tribunal. He should be a senior High Court Judge (sitting or retired) and he should be appointed in consultation with the Chief Justice of India. The Court also suggested that practising lawyers ought to be appointed as Judicial members of the tribunal. The Court pointed out that the working of CEGAT has been very unsatisfactory and the Government should take remedial measures after making an in-depth enquiry. The Court asked the Law Commission to look into the desirability of bringing CEGAT under the control of the Department of Law and Justice in line with the Income Tax Appellate Tribunal.83 The Court desired the Law

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Commission to undertake an intensive and extensive study in regard to the constitution of the tribunals under various statutes with a view to ensuring their independence so that public confidence in such tribunals may improve. As regards CEGAT, the Court desired the Law Commission to make appropriate recommendations to the Central Government so that it may take remedial steps by appropriate legislation so as to make the tribunal as an effective and efficient instrument for judicial review-efficacious, inexpensive and satisfactory. The Court suggested that regular monitoring of the tribunal is necessary. The Court also pointed out that the system of appeals from the tribunal to the Supreme Court under Art. 136 is too costly and prohibitive. People in far flung areas would find it very difficult to reach the Supreme Court. Accordingly, the Court suggested that provision be made for appeal from the tribunal to a bench of two Judges of the respective High Court. As a result of the Supreme Court's pronouncement in R.K. Jain, the Government of India appointed the CEGAT Inquiry Committee to examine the allegations, identify the causes for the crisis in CEGAT and suggest remedial measures.84 R.K. Jain strongly underlines the need for setting up of a permanent body on the lines of the Council on Tribunals as suggested above for continuously monitoring the working of the adjudicatory bodies. The system of administrative adjudication has not only come to stay, it is proliferating very fast. It has already become a very significant segment of administrative process in the country. The system has become a fact of modern life and it cannot now be wished away. It therefore becomes absolutely necessary to effect improvements therein so that its end products may improve qualitatively and it may gain respect and credibility in the eyes of the people. Some of the suggested modifications which can be introduced in the system are as follows : 1.

2.

3.

4.

5. 6.

There seems to be no reason as to why different retirement ages should be fixed for different tribunals. It will greatly simplify matters if one uniform retiring age is fixed for all tribunals, and this may be fixed at 70 years as has been done in case of the National Consumer Forum. This will enable retired Supreme Court Judges to be appointed as the Chairmen of some tribunals. The present practice of appointing tribunal members for another term compromises tribunal's independence and should therefore be given up. The best thing to do would be to appoint a person as member of a tribunal till he retires as per the prescribed retiring age. This is done in case of the High Court Judges and there is no reason as to why the same practice cannot be followed in case of tribunals. Administrative adjudication should move more and more from departmental or official adjudication to tribunal adjudication. Adjudication by department/official/administrator hardly evinces credibility in the public eye. A tribunal is a better instrument of justice than department or official as adjudicator because a tribunal is a much more independent body, is much less susceptible to political, ministerial or bureaucratic pressures and is better equipped to handle questions of fact and law and appreciate evidence and follow natural justice. The procedure of decision-making in a tribunal is much more open than that by a department or an official. A tribunal always has legal element among its membership but the same is not true of a department or an official. There is always a tendency among administrators to ignore principles of natural justice, avoid giving reasons and execute adjudicatory function in a slipshod manner as if it is merely an extension of an administrative function. Provision ought to be made for one appeal on law, facts and merits from the original decision whether by a tribunal or an administrator-adjudicator or a department, to an appellate body. This is necessary in the interests of justice. As the High Courts or the Supreme Court cannot handle this onerous task, it may be necessary to establish a Central Appellant Tribunal on the model of the Australian administrative Appellate Tribunal. A number of existing appellate bodies can be merged with the proposed Appellate Tribunal. Where at present no appeal is provided from the decision of an adjudicator or a tribunal, an appeal be permitted to the Central Appellate Tribunal. This Tribunal can be given a status somewhat in between the Supreme Court and the High Courts. From this Tribunal, the Supreme Court may hear appeals on points of law under Art. 136. Rules should invariably provide for legal representation before, and reasoned decisions by, adjudicatory bodies. It seems necessary to set up a body on the lines of the Council on Tribunals to constantly

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7.

monitor the system of administrative adjudication and constantly suggest corrective measures as and when faults are disclosed in the system.85 It will be very advantageous to all--adjudicators as well as the people having disputes with administrative agencies--if a uniform code of procedure offering an irreducible minimum of adjudicatory procedure is evolved. Today there exists a good deal of confusion on this question as the courts maintain that the concept of natural justice/fairness is flexible and not fixed.86

1 Supra, Chapter IX. For norms of National Justice, see supra, Chapter X . 2 In case of some of the adjudication bodies mentioned in the last chapter, there are specific statutory provisions excluding the application of the Evidence Act. Even in the absence of such a statutory provision, there is the judicially developed norm excluding application of the Evidence Act to adjudicatory bodies. 3 Dhakeshwari Cotton Mills Ltd. v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: (1955) 1 SCR 941 : (1954) 26 ITR 775 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149] J.D. Jain v. Management of State Bank of India, 1982 (1) LLJ 54 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981 SC 465] : (1982) 1 SCC 143 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981 SC 465] : AIR 1982 SC 673 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981 SC 465]. 4 AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]at 69 : (1954) 26 ITR 775 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]. Also, JAIN, Cases, Chapter XIII, Sec. A. 5 AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: 1958 SCR 499. 6 Also see, New Prakash Transport Co. v. New Suwarna Transport Co., AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132]: 1957 (1) LLJ 344 : 1957 SCR 98; C.I.T., Patiala v. Metal Products of India, 1984 Tax LR 673; supra, Chapter IX. 7 AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], 885 : 1958 SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]. 8 Collector of Customs v. D. Bhoor Mull, AIR 1974 SC 859 [LNIND 1974 SC 131] [LNIND 1974 SC 131] [LNIND 1974 SC 131]: (1974) 2 SCC 544 : 1975 Crlj 545. 9 AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971 SC 383]: (1971) 2 SCC 617; JAIN, Cases, Chapter XIII, Sec. A. 10 J.D. Jain v. Management of State Bank of India, AIR 1982 SC 673 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981 SC 465]: (1982) 1 SCC 143: 1982 (1) LLJ 54 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981 SC 465] 11 T.A. Miller v. Minister of Housing and Local Govt., (1968) 1 WLR 992. Also see, exp. St. Germain (No. 2), R. v. Hull Prison Board of Visitors, (1979) 3 All ER 545; JAIN, Cases, Chapter XIII, Sec. A. 12 Jagannath Prasad Sharma v. State of U.P., AIR 1961 SC 1245 [LNIND 1961 SC 89] [LNIND 1961 SC 89] [LNIND 1961 SC 89]: 1961 (2) LLJ 166 : 1962 (1) SCR 151 [LNIND 1961 SC 89] [LNIND 1961 SC 89] [LNIND 1961 SC 89]. 13 B.E. Supply Co. v. The workmen, AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971 SC 383]: (1971) 2 SCC 617. 14 State of Haryana v. Ram Chander, AIR 1976 P&H 381. 15 State of Haryana v. Ram Chander, AIR 1976 P&H 381 at 384. 16 State of Haryana v. Rattan Singh, AIR 1977 SC 1512 : (1977) 2 SCC 491 : 1982 (1) LLJ 46. Also, JAIN, Cases, Chapter XIII, Sec. A. 17 Also see, infra, Vol. II, under Writ Jurisdiction. 18 See under heading : 'Disclosure of Materials to the Party', supra, Chapter X. Dhakeshwari Cotton Mills Ltd. v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149],69 : (1955) 1 SCR 941 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149] : (1954) 26 ITR 775 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]. 19 Reg. v. Commission for Racial Equality, (1980) 1 WLR 1580. 20 Kishinchand Chellaram v. C.I.T., AIR 1980 SC 2117 [LNIND 1980 SC 385] [LNIND 1980 SC 385] [LNIND 1980 SC 385]:

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1980 Supp SCC 660 : (1980) 125 ITR 713 [LNIND 1980 SC 385] [LNIND 1980 SC 385] [LNIND 1980 SC 385]. 21 Tribhuban Parkash v. State of India, AIR 1970 SC 540 [LNIND 1969 SC 388] [LNIND 1969 SC 388] [LNIND 1969 SC 388]: (1969) 3 SCC 99. 22 Rukmanand v. State of Bihar, AIR 1971 SC 746 : (1971) 3 SCC 167. 23 Devendra Bhai Shankar Mehta v. Ramesh Chandra Vithaldas Sheth, AIR 1992 SC 1398 [LNIND 1992 SC 337] [LNIND 1992 SC 337] [LNIND 1992 SC 337], 1405 : (1992) 3 SCC 473 [LNIND 1992 SC 337] [LNIND 1992 SC 337] [LNIND 1992 SC 337]. 24 Dharkeshwari Cotton Mills Ltd. v. C.I.T., AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]: (1954) 261 ITR 775. 25 Dhiraj Lal Girdharilal v. C.I.T, Srinivas v. UOI, AIR 1955 SC 271 [LNIND 1954 SC 298] [LNIND 1954 SC 298] [LNIND 1954 SC 298]: (1954) 26 ITR 736. Omar Salay Mohammad v. C.I.T., AIR 1959 SC 1238: (1959) 37 ITR 151; Lalchand Bhagat Ambica Ram v. C.I.T., AIR 1959 SC 1295 [LNIND 1959 SC 120] [LNIND 1959 SC 120] [LNIND 1959 SC 120]: (1959) 37 ITR 288. 26 N. Raja Pullaiah v. Dy. Commercial Tax Officer, AIR 1970 AP 125; Prem Chand v. State of Punjab, AIR 1971 P&H 50; Mukunda v. Bangsidhar, AIR 1980 SC 1524 : (1980) 4 SCC 336. 27 AIR 1976 SC 1080 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND 1976 SC 140]: (1976) 3 SCC 76 : 1976 (2) SLR 102. 28 Also see, U.O.I. v. T.R. Varma, AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91]: (1958) 2 LLJ 259: 1958 SCJ 142; supra, note 5; State of Orissa v. Murlidhar, AIR 1963 SC 404 [LNIND 1961 SC 545] [LNIND 1961 SC 545] [LNIND 1961 SC 545]. 29 Tribhuban Parkash v. U.O.I., AIR 1970 SC 540 [LNIND 1969 SC 388] [LNIND 1969 SC 388] [LNIND 1969 SC 388]: (1969) 3 SCC 99. Also see, Consolidation, Aziz Wani v. Director, AIR 1971 J&K 67; Sub-Divisional Officer v. Gopal Chandra, AIR 1971 SC 1190; Mukunda v. Bangsidhar, AIR 1980 SC 1524 : (1980) 4 SCC 336; P.D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110 [LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319]: (1984) 2 SCC 556; Bishnu Ram Borah v. Parag Saikia, AIR 1984 SC 898 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC 337]: (1984) 2 SCC 488; Brij Nandan Kansal v. State of Uttar Pradesh, AIR 1988 SC 908 [LNIND 1988 SC 149] [LNIND 1988 SC 149] [LNIND 1988 SC 149]: 1988 Supp SCC 761. Also see, infra, Vol. II, under Certiorari--Findings of fact. 30 2nd. I.T., Parry & Co. v. Judge, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]: 1970 (2) LLJ 429. Also see, State of West Bengal v. Atul Krishna Shaw, AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC 466]: 1991 Supp (1) SCC 414. 31 Zora Singh v. J.M. Tandon, AIR 1971 SC 1537 : (1971) 3 SCC 834. Also see, infra, Vol. II, under Judicial Control : Writs. 32 T.A. Miller Ltd. v. Minister of Housing, (1968) 2 All ER 633. 33 Reference was made to this rule by in State of Haryana the Supreme Court v. Rattan Singh, AIR 1977 SC 1512 : (1977) 2 SCC 491 : 1982 (1) LLJ 46. 34 SCHWARTZ, Adm. Law--A Casebook, 538-40 (1988). 35 SCHWARTZ, Adm. Law--A Casebook, (1988), at 537. 36 ex parte St. Germain (No. 2), R. v. Hull Prison Board of Visitors, (1979) 3 All ER 545, supra, note 10; JAIN, Cases, Chapter XIII, Sec. A. 37 ex parte St. Germain (No. 2), R. v. Hull Prison Board of Visitors, 1979 3 All ER 545. 38 P.D. Khandekar v. Bar Council of Maharashtra, AIR 1984 SC 110 [LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319]: (1984) 2 SCC 556. 39 On the disciplinary jurisdiction of the Bar Council, see, Under heading : '(xii) Regulation of Professions', 'Bar Council', Chapter XIII, supra; JAIN, Cases, Chapter XII, Sec. G. 40 AIR 1975 SC 2151 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309]: (1975) 2 SCC 557 : 1976 (1) LLJ 21 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309]. Also, Nand Kishore v. State of Bihar, Srinivas v. UOI, AIR 1978 SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135]: (1978) 3 SCC 366 : 1978 (2) LLJ 84 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135]. 41 The Supreme Court quashed a decision by a claims tribunal on the ground that it examined the evidence in a perverse manner : Haji Zainullah Khan v. Nagar Mahapalika, (1994) 5 SC 667 : (1995) 82 Comp Cas 186 : 1994 (4) JT 367. See, JAIN, Cases, Chapter XII, Sec. O and supra, Chapter XIII, Under heading : '(V) Motor Transport', for Claims Tribunals. Also see for further discussion on this point, infra, Vol. II, under Judicial Control.

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42 Commr. of Income Tax v. Biju Patnaik, AIR 1986 SC 1428 [LNIND 1986 SC 188] [LNIND 1986 SC 188] [LNIND 1986 SC 188]: (1986) 3 SCC 310: (1986) 160 ITR 674; JAIN, Cases, Chapter XII, Sec. R. 43 Md. Shankoor Mian v. Raj Mangal Mishra, Srinivas v. UOI, (1999) 7 SCC 461, 464, 467 (paras 6 and 9). 44 Supra, Chapter X, under heading : 'Hearing', sub-heading 'summoning of witnesses. 45 This section provides that when a person refuses to take oath or affirmation when duly required to do so by a public servant, he shall be liable to be punished with simple im prisonment up to six months or with fine up to Rs. 1000/- or with both. 46 Jagannath Prasad v. State of U.P., AIR 1963 SC 416 [LNIND 1962 SC 223] [LNIND 1962 SC 223] [LNIND 1962 SC 223]: 1963 (2) SCR 850; JAIN, Cases, Chapter XIII, Sec. G. 47 See, for example, S. 10E(4D) of the Companies Act; JAIN, Cases, Chapter XII, Sec. I. 48 Chandrapal Singh v. Maharaj Singh, AIR 1982 SC 1238 : (1982) 1 SCC 466 : 1982 Crlj 1731; JAIN, Cases, Chapter XIII, Sec. G. 49 Lalji Haridas v. State of Maharashtra, AIR 1964 SC 1154 [LNIND 1964 SC 34] [LNIND 1964 SC 34] [LNIND 1964 SC 34]: 1964 (6) SCR 700. 50 Jagannath Prasad v. State of U.P., AIR 1963 SC 416 [LNIND 1962 SC 223] [LNIND 1962 SC 223] [LNIND 1962 SC 223]: 1963 (2) SCR 850; see, JAIN, Cases, Chapter XIII, Sec. G. Also see, infra, Chapter XVI, under Commissions of Inquiry. 51 On the MRTP Commission, see, JAIN, Cases, Chapter XII, Sec. H ; under heading : Monopolies and Restrictive Trade Practice Commission, Chapter XIII. 52 Also see S. 42(2) of the Advocates Act making a similar declaration with respect to a disciplinary committee of a Bar Council. For more such provisions see, JAIN, Cases, Chapter XI I. Chapter XXVI. CrPC, contains procedural provisions concerning offences affecting the administration of justice. This Chapter contains Ss. 340-352. 53 SARKAR, Law of Evidence, 564 (1971). 54 Supra, Chapter XIII, under heading : 'Reasons for Growth'. 55 (1968) 3 All ER 304; JAIN, Cases, 866. 56 Crofton v. Greater London Rent Tribunal, (1967) 2 All ER 1103; JAIN, Cases, Chapter XIII, Sec. C. 57 Fairmount Investments Ltd. v. Secretary of State for the Environment, (1976) 2 All ER 865.Also see, Ingraim v. Percival, (1969)1 QB 577, 603; Wetherall v. Harrison, (1976) QB 773 : Hammington v. Berker Sportcraft, (1980) ICR 248; MANCHESTER, Judicial Notice and Personal Knowledge, 42 MLR 22 (1979); GRIFFITH & STREET, Principles of Adm. Law, 195 (1973). 58 See, DAVIS, II Adm. Law Treatise, 338 (1958); SCHWARTZ, Adm. Law--A Casebook, 576-94 (1988); SCHWARTZ, Adm. Law, 364 (1976). 59 SCHWARTZ, Adm. Law, 141-42 (1962). Also, Report of the Att. Gen. Committee, 72(1941); SCHWARTZ, Adm. Law, 374-84 (1984). 60 J.A. SMILLIE, the Problem of Official Notice : Reliance by Administrative Tribunals on the Personal knowledge of their Members, (1975) Pub Law, 64; FLICK, Natural Justice, Chapter XI (1979). 61 RATANLAL DHIRAJLAL, Law of Evidence, 215-16 (1973). 62 S. 106 of the Evidence Act. The principle does not apply in a criminal case. 63 Ram Saroop v. Lilavati, AIR 1982 SC 945 [LNIND 1980 SC 233] [LNIND 1980 SC 233] [LNIND 1980 SC 233]: (1980) 3 SCC 452. 64 Associated Cement Co. v. Workmen, (1963) 3 SCR 945. 65 AIR 1961 SC 264 [LNIND 1960 SC 227] [LNIND 1960 SC 227] [LNIND 1960 SC 227]: 1964 (1) Crlj 326 : 1962 (2) SCJ 549 [LNIND 1960 SC 227] [LNIND 1960 SC 227] [LNIND 1960 SC 227]. 66 AIR 1974 SC 859 [LNIND 1974 SC 131] [LNIND 1974 SC 131] [LNIND 1974 SC 131]: (1974) 2 SCC 544 : 1975 Crlj 545; JAIN, Cases, Chapter XIII, Sec. B. Also, Kanungo & Co. v. Collector of Customs, AIR 1972 SC 2136 : (1973) 2 SCC 438. 67 East Jamuria Co. v. Collector of Customs, (1978) 8 Taxation LR 1693 (Cal). 68 S. 123.

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69 AIR 1962 SC 316 [LNIND 1961 SC 312] [LNIND 1961 SC 312] [LNIND 1961 SC 312]: 1962 (1) Crlj 364 : 1962 (3) SCR 786 [LNIND 1961 SC 312] [LNIND 1961 SC 312] [LNIND 1961 SC 312]; JAIN, Cases, Chapter XIII, Sec. B. 70 Ibid; Pukhraj v. D.R. Kohli, AIR 1962 SC 1559 [LNIND 1962 SC 117] [LNIND 1962 SC 117] [LNIND 1962 SC 117]: 1964 (1) SCJ 281; JAIN, Cases, Chapter XIII, Sec. B. 71 State of Gujarat v. Mohan Lal, AIR 1987 SC 132 : (1987) 2 SCC 364 : 1987 Crlj 1061. 72 Hukma v. State of Rajasthan, AIR 1965 SC 476 [LNIND 1963 SC 207] [LNIND 1963 SC 207] [LNIND 1963 SC 207]: 1965 (1) Crlj 369 : 1964 (4) SCR 708 [LNIND 1963 SC 207] [LNIND 1963 SC 207] [LNIND 1963 SC 207]. Also see, Kewal Krishan v. State of Punjab, AIR 1967 SC 737 [LNIND 1962 SC 106] [LNIND 1962 SC 106] [LNIND 1962 SC 106]. 73 Kale Khan Mohd. Hanif v. C.I.T., (1963) 50 ITR 1 (SC). 74 Lal Mohan Krishna v. C.I.T., (1944) 12 ITR 441 (Cal); Sreelekha Banerjee v. C.I.T., 49 ITR 112 (SC). 75 Bacha F. Guzdar v. C.I.T., (1955) 27 ITR 1 [LNIND 1954 SC 145] [LNIND 1954 SC 145] [LNIND 1954 SC 145]. 76 C.I.T. v. Calcutta Agency Ltd., (1951) 19 ITR 191 [LNIND 1950 SC 58] [LNIND 1950 SC 58] [LNIND 1950 SC 58] (SC) : AIR 1951 SC 108 [LNIND 1950 SC 58] [LNIND 1950 SC 58] [LNIND 1950 SC 58]. 77 Champalal Ramswarup v. C.I.T., (1966) 60 ITR 493 (SC). 78 C.I.T. v. Calcutta Agency Ltd., AIR 1951 SC 108 [LNIND 1950 SC 58] [LNIND 1950 SC 58] [LNIND 1950 SC 58]: (1951) 19 ITR 191 (SC). 79 C.I.T. v. Padamchand Ramgopal, (1970) 76 ITR 719 (SC) : AIR 1970 SC 1575 : (1970) 3 SCC 866; R.B. Jessaram v. CIT., (1970) 75 ITR 33 (SC). 80 C.I.T. v. Laxmi Narain Badridas, (1937) 5 ITR 170 (PC); Lalchand Bhagat Ambica Ram v. C.I.T., (1959) 37 ITR 288 [LNIND 1959 SC 120] [LNIND 1959 SC 120] [LNIND 1959 SC 120] (SC) : AIR 1959 SC 1295 [LNIND 1959 SC 120] [LNIND 1959 SC 120] [LNIND 1959 SC 120]: 1960 SCJ 292. See, supra, notes 20-30. 81 C.I.T. v. Daulatram Rawalmall, (1973) 87 ITR 349 [LNIND 1972 SC 427] [LNIND 1972 SC 427] [LNIND 1972 SC 427] (SC) : (1973) SCC 133; Kalwa Devadattam. v. U.O.I., (1963) 49 ITR 165 [LNIND 1963 SC 118] [LNIND 1963 SC 118] [LNIND 1963 SC 118] (SC) : AIR 1964 SC 880 [LNIND 1963 SC 118] [LNIND 1963 SC 118] [LNIND 1963 SC 118]. 82 (1988) Tax LR 1205, 1207. 83 Banshidhar Onkarmal v. C.I.T., (1953) 23 ITR 353. 84 Chimanram Motilal v. CIT., (1943) 11 ITR 44 (Bom); Sreelekha Banerjee v. C.I.T., (1963) 49 ITR 112 (SC). 85 Sreelekha Banerjee v. C.I.T., (1963) 49 ITR 112 (SC). 86 C.I.T. v. Anwar Ali, AIR 1970 SC 1782 [LNIND 1970 SC 249] [LNIND 1970 SC 249] [LNIND 1970 SC 249]: (1970) 2 SCC 185 : C.I.T. v. Khoday Eswarsa & Sons, AIR 1972 SC 132 [LNIND 1971 SC 492] [LNIND 1971 SC 492] [LNIND 1971 SC 492]: (1971) 3 SCC 555; Anantharam Veerasinghaiah v. C.I.T., AIR 1980 SC 1146 [LNIND 1980 SC 185] [LNIND 1980 SC 185] [LNIND 1980 SC 185]: 1980 Supp SCC 1146 : (1980) 123 ITR 457 [LNIND 1980 SC 185] [LNIND 1980 SC 185] [LNIND 1980 SC 185]. 87 C.I.T. v. Anwar Ali, AIR 1970 SC 1782 [LNIND 1970 SC 249] [LNIND 1970 SC 249] [LNIND 1970 SC 249]: (1970) 2 SCC 185. 88 C.I.T. v. Mussadilal Ram Bharose, (1987) 165 ITR 14 [LNIND 1987 SC 102] [LNIND 1987 SC 102] [LNIND 1987 SC 102] (SC) : AIR 1987 SC 814 [LNIND 1987 SC 102] [LNIND 1987 SC 102] [LNIND 1987 SC 102]: (1987) 2 SCC 39. 89 See, supra, Chapter XIII; also, JAIN, Cases, Chapter XII, Sec. O. 90 AIR 1976 SC 1803 [LNIND 1976 SC 156] [LNIND 1976 SC 156] [LNIND 1976 SC 156]: (1976) 3 SCC 550. 91 B. Prabhakar v. D. Panakala, AIR 1976 SC 1803 [LNIND 1976 SC 156] [LNIND 1976 SC 156] [LNIND 1976 SC 156]at 1807 : (1976) 3 SCC 550 [LNIND 1976 SC 156] [LNIND 1976 SC 156] [LNIND 1976 SC 156]. 92 For cases on res judicata, see, JAIN, Cases, Chapter XIII, Sec. D. 93 V.V. Mammikutty Haji v. M. V Kalliani Amma, AIR 1993 Ker 104 [LNIND 1992 KER 381] [LNIND 1992 KER 381] [LNIND 1992 KER 381]. 94 Debabrata Tripathy v. State, AIR 1981 Cal 114 [LNIND 1981 CAL 1] [LNIND 1981 CAL 1] [LNIND 1981 CAL 1]. 95 AIR 1962 SC 53 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961 SC 229]: 1962 (2) SCR 644.

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96 Instalment Supply (Pvt.) Ltd. v. U.O.I, Srinivas v. UOI, AIR 1962 SC 53 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961 SC 229]: (1962) 2 SCR 644. Also see, Visheshwara Singh v. C.I.T., AIR 1961 SC 1062 [LNIND 1960 SC 344] [LNIND 1960 SC 344] [LNIND 1960 SC 344]: (1961) 41 ITR 685; Commr I.T. v. D.P. More, AIR 1971 SC 2439 : (1972) 4 SCC (N) 36 : (1971) 82 ITR 540. 97 Udayan Chinubhai v. Commr., I.T, AIR 1967 SC 762 [LNIND 1966 SC 263] [LNIND 1966 SC 263] [LNIND 1966 SC 263]: 1967 (1) SCR 913. 98 C.I.T, Calcutta v. M/s British Paints India Ltd., AIR 1991 SC 1338 [LNIND 1990 SC 793] [LNIND 1990 SC 793] [LNIND 1990 SC 793], 1341 : 1992 Supp (1) 55. 99 Sankaralinga Nadar & Bros. v. C.I.T., AIR 1930 Mad 209; H.A. Shah & Co. v. C.I.T., (1956) 30 ITR 618 [LNIND 1955 BOM 104] [LNIND 1955 BOM 104] [LNIND 1955 BOM 104]. See also, Kaniram Ganpat Rai v. C.I.T., (1941) 9 ITR 332; Burmah Shell Refineries Ltd. v. G.B. Chand, (1966) 61 ITR 493. Also see, KANGA & PALKHIVALA, The Law & Practice of Income Tax, I, 1145 (1990). 1 Rajendra Jha v. Presiding Officer, Labour Court, AIR 1984 SC 1696 [LNIND 1984 SC 218] [LNIND 1984 SC 218] [LNIND 1984 SC 218]: 1984 Supp SCC 520 : 1984 (2) LLJ 459 [LNIND 1984 SC 218] [LNIND 1984 SC 218] [LNIND 1984 SC 218]. 2 Burn & Co., Calcutta v. Their Employees, AIR 1957 SC 38 [LNIND 1956 SC 78] [LNIND 1956 SC 78] [LNIND 1956 SC 78], 43: 1957 (1) LLJ 226 [LNIND 1956 SC 78] [LNIND 1956 SC 78] [LNIND 1956 SC 78] : 1957 SCJ 28; Workmen v. Straw Board Mfg. Co., AIR 1974 SC 1132 [LNIND 1974 SC 114] [LNIND 1974 SC 114] [LNIND 1974 SC 114]: 1974 (1) LLJ 499 : (1974) 4 SCC 681 [LNIND 1974 SC 114] [LNIND 1974 SC 114] [LNIND 1974 SC 114]. 3 S.S. Rly. Co. v. Workers Union, AIR 1969 SC 513 [LNIND 1968 SC 281] [LNIND 1968 SC 281] [LNIND 1968 SC 281]: (1969) 1 SCC 255; Bharat Barrel & Drum Mfg. Co. Ltd. v. Bharat Barrel Employees Union, 1987 Lab IC 1006 : 1987 (1) LLJ 492 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC 375] : AIR 1987 SC 1415 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC 375]: (1987) 2 SCC 591; JAIN, Cases, Chapter XIII, Sec. D. On res judicata also see, infra, Vol. II, under Judicial Control. 4 Maghraj Calla v. Kajodi Mal, AIR 1994 Raj 11. 5 (1999) 5 SCC 590 [LNIND 1998 SC 986] [LNIND 1998 SC 986] [LNIND 1998 SC 986], 607-08 (para 26). 6 A.S.K. Krishnappa v. Somaiah, AIR 1964 SC 227 [LNIND 1963 SC 59] [LNIND 1963 SC 59] [LNIND 1963 SC 59], 232 : 1964 (2) SCR 241 [LNIND 1963 SC 59] [LNIND 1963 SC 59] [LNIND 1963 SC 59]. 7 AIR 1970 AP 43 [LNIND 1968 AP 2] [LNIND 1968 AP 2] [LNIND 1968 AP 2]. 8 AIR 1980 MP 106 [LNIND 1980 MP 80] [LNIND 1980 MP 80] [LNIND 1980 MP 80]. 9 Athani Municipality v. Labour Court, AIR 1969 SC 1335 [LNIND 1969 SC 135] [LNIND 1969 SC 135] [LNIND 1969 SC 135]: (1969) 1 SCC 873; JAIN, Cases, Chapter XIII, Sec. E; State Bank of India v. Bhide, AIR 1970 SC 196 [LNIND 1969 SC 181] [LNIND 1969 SC 181] [LNIND 1969 SC 181]: (1969) 2 SCC 491; Nityanand v. L.I.C., AIR 1970 SC 209 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187]: 1969 (2) LLJ 711 : (1969) 2 SCC 199 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187]; JAIN, op. cit. Also see, Shardaben v. Pandya, AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] 10 Sha Moolchand & Co. Ltd. v. Jawahar Mills Ltd; AIR 1953 SC 98 [LNIND 1952 SC 89] [LNIND 1952 SC 89] [LNIND 1952 SC 89]: 1953 SCR 351; Bombay Gas Co. Ltd. v. Gopal Bhiva, AIR 1964 SC 752 [LNIND 1963 SC 158] [LNIND 1963 SC 158] [LNIND 1963 SC 158]: 1963 (2) LLJ 608 : 1964 (3) SCR 709 [LNIND 1963 SC 158] [LNIND 1963 SC 158] [LNIND 1963 SC 158]. 11 AIR 1985 SC 1279 [LNIND 1985 SC 218] [LNIND 1985 SC 218] [LNIND 1985 SC 218]: (1985) 3 SCC 590. 12 AIR 1993 Pat 150. 13 AIR 1970 All 429. 14 Nityanand v. L.I.C., AIR 1970 SC 209 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187]: (1969) 2 SCC 199 : 1969 (2) LLJ 711 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187]. 15 Commissioner of Sales Tax v. Parson Tools and Plants, (1975) 35 STC 413 [LNIND 1975 SC 87] [LNIND 1975 SC 87] [LNIND 1975 SC 87] (SC) : AIR 1975 SC 1039 [LNIND 1975 SC 87] [LNIND 1975 SC 87] [LNIND 1975 SC 87]: (1975) 4 SCC 22; JAIN, Cases, Chapter XIII, Sec. E. 16 (1976) 38 STC 543 (SC). 17 For a comment on this case, see, S.N. JAIN, 19 JILI 484 (1977). 18 For ITAT, see, supra, under sub-heading : Income Tax Appellate Tribunal of heading, 'Some select Adjudicatory Bodies' under Chapter XIII; JAIN, Cases, Chapter XII, Sec. R. The Supreme Court has ruled that the Railway Claims Tribunal, see

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supra, 547, is a creature of the statute, is not a civil court and so the Limitation Act does not apply to the Tribunal. Accordingly, a claim for refund of overcharge in respect of carriage of goods by the Railways must be made within six months from the date of delivery of goods to the Railways for carriage as provided by the Railways Act : Birla Cement Works v. G.M., Western Railways, AIR 1995 SC 1111 [LNIND 1995 SC 4] [LNIND 1995 SC 4] [LNIND 1995 SC 4]: (1995) 2 SCC 493. 19 AIR 1982 Guj 296; JAIN, Cases, Chapter XIII, Sec. E. 20 AIR 1977 SC 282 [LNIND 1976 SC 402] [LNIND 1976 SC 402] [LNIND 1976 SC 402]: (1976) 4 SCC 634. In this case, the Supreme Court ruled that Art. 137 of the Limitation Act would apply to an application made to the district Judge under S. 10 of the Telegraph Act. 21 AIR 1982 Ker 350 [LNIND 1982 KER 105] [LNIND 1982 KER 105] [LNIND 1982 KER 105]; JAIN, Cases, Chapter XIII, Sec. E. In Mahijibhai Jivanbhai Yaghri v. M.C. Shah, ILR 1968 Guj 348, the Gujarat High Court came to an opposite conclusion on this very point. 22 Jaimangal Ltd. Avantee Hotel v. State, AIR 1989 Pat 191; JAIN, Cases, Chapter XIII, Sec. E. 23 Shardaban v. Pandya, AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120]. 24 Collector of Central Excise, Madras v. M.M. Rubber & Co., Tamil Nadu, AIR 1991 SC 2141 [LNIND 1991 SC 431] [LNIND 1991 SC 431] [LNIND 1991 SC 431]: 1992 Supp (1) SCC 471; JAIN, Cases, Chapter XIII, Sec. E. 25 On this point, see, under heading : 'Communication of Adjudicatory order', infra, this chapter. 26 On this point, see under heading : 'Adjudicatory Body not to Revise/Review its own orders', infra, this chapter. 27 AIR 1965 Punj 84; JAIN, Cases, Chapter XIII, Sec. F. 28 Amir Singh v. Government of India, AIR 1965 Punj 84 at 85. Also see, supra, Chapter X. under the caption "One Who Hears must Decide". 29 AIR 1958 Cal 470 [LNIND 1958 CAL 89] [LNIND 1958 CAL 89] [LNIND 1958 CAL 89]. 30 AIR 1970 SC 1095 [LNIND 1969 SC 457] [LNIND 1969 SC 457] [LNIND 1969 SC 457]: (1970) 1 SCC 103 : 1970 (2) LLJ 279 [LNIND 1969 SC 457] [LNIND 1969 SC 457] [LNIND 1969 SC 457]; JAIN, Cases, Chapter XIII, Sec. F. 31 U.O.I. v. M.B. Patnaik, AIR 1981 SC 858 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72]: (1981) 2 SCC 159 : 1981 (1) LLJ 453 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]. 32 Mirza Muzamdar Hussain v. D. Bhaskara Reddy, AIR 1988 AP 13.; JAIN, Cases, 1208, 1211. 33 Supra, this chapter under Evidence. 34 AIR 1970 SC 102 [LNIND 1969 SC 140] [LNIND 1969 SC 140] [LNIND 1969 SC 140]: (1969) 1 SCC 884; JAIN, Cases, Chapter XIII, Sec. H. Also see, Siemens Engg. & Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]; Dharam Chand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427. Also see under Certiorari, infra, Vol. II. 35 For these principles, see, Infra, Chapter XIX. 36 AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59], 804, 813 : (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]. 37 See, under sub-heading : 'Monopolies and Restrictive Trade Practice Commission, (X) Economic Regulation, Chapter XIII. Also, JAIN, Cases, Chapter XII, Sec. H. 38 Also see, Parry & Co. v. Judge, 2nd. I.T., Cal : AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]: 1970 (2) LLJ 429 : (1969) (2) SCR 976 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; Gujarat Steel Tubes v. Its Mazdoor Sabha, AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]: (1980) 2 SCC 593 : 1980 (1) LLJ 137 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], infra, under Certiorari. 39 AIR 1971 P&H 151. 40 N. Raja Pullaiah v. Dy. Commercial Tax Officer, AIR 1970 AP 125. 41 AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120]. 42 See, supra, Chapter XIII, under heading (V) : 'Motor Transport'; JAIN, Cases, Chapter XII, Sec. O. 43 Proviso to S. 110A(3) of the Act of 1939 and now proviso to S. 166(3) of the Act of 1988.

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44 AIR 1974 SC 1174; JAIN, Cases, Chapter XIII, Sec. H. 45 See, infra, Chapter XIX, on relevant and irrelevant considerations. Also see : Rukmani Ammal v. V.K. Izudden, AIR 1983 Mad 303 [LNIND 1982 MAD 413] [LNIND 1982 MAD 413] [LNIND 1982 MAD 413]; M. Madhavan Nair v. P.E. Varkey, AIR 1983 Ker 254 [LNIND 1983 KER 304] [LNIND 1983 KER 304] [LNIND 1983 KER 304], Ram Dayal v. S.T.A. Tribunal, AIR 1983 Raj 172. 46 AIR 1975 SC 123 : (1975) 1 SCC 55. 47 Ajanta Transports v. T.V.K. Transports, AIR 1975 SC 123 at 130 : (1975) 1 SCC 55. 48 Ajanta Transports v. T.V.K. Transports, AIR 1975 SC 123 at 132 : (1975) 1 SCC 55. 49 Also see, infra, Vol. II, under Certiorari. 50 Ajantha Transports v. T.V.K. Transports, AIR 1975 SC 123 at 134 : (1975) 1 SCC 55. 51 Dunlop India Ltd. v. Union of India, AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]: (1976) 2 SCC 241. 52 AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]: 1976 (2) SCR 98; JAIN, Cases, Chapter XIII, Sec. H. 53 Nepal Singh v. State of U.P., AIR 1985 SC 18 [LNIND 1984 SC 265] [LNIND 1984 SC 265] [LNIND 1984 SC 265]: (1984) 4 SCC 400 also see, infra, Chapter XIX . 54 Bhagwati Prasad v. Food Corporation of India, AIR 1988 SC 434 [LNIND 1987 SC 722] [LNIND 1987 SC 722] [LNIND 1987 SC 722]: 1987 Supp SCC 579 : 1988 (1) LLJ 231; also see, infra, Vol. II, under Judicial Control : Certiorari. 55 PAC Systems Pvt. Ltd. v. Collector of Customs, AIR 1994 SC 473 : For CEGAT, see supra, Chapter XIII, under heading : '(ii) Assessment of Customs and Excise', 'some select Adjudicatory bodies'; JAIN, Cases, Chapter XII, Sec. S. 56 AIR 1976 SC 1525 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158]: (1976) 4 SCC 706. 57 K.P. Nanjunath v. State, AIR 1976 Kant 158 [LNIND 1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT 47]. 58 Also see, on this point: Collector of Customs v. Pednekar & Co., AIR 1976 SC 1408 [LNIND 1976 SC 148] [LNIND 1976 SC 148] [LNIND 1976 SC 148]: (1976) 3 SCC 790; Shri Krishan v. Kurukshetra University, AIR 1976 SC 376 [LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975 SC 446]: (1976) 1 SCC 311. For further discussion on this point, see, infra, Vol. II, under Judicial Control: Certiorari. 59 AIR 1971 SC 1537 : (1971) 3 SCC 834. 60 See, infra, under Discretionary Powers, Chapter XIX ; JAIN, Cases, Chapter XVI . 61 AIR 1976 SC 232 : (1976) 2 SCC 868. 62 J. Agrawal v. State, AIR 1974 All 426. 63 See, infra, Vol. II, under Writs : Certiorari. 64 Aziz Wani v. Director, Consolidation, AIR 1971 J&K 67; Rajinder Kumar v. Delhi Administration, AIR 1984 SC 1805 [LNIND 1984 SC 267] [LNIND 1984 SC 267] [LNIND 1984 SC 267]: (1984) 4 SCC 635 : 1984 (2) LLJ 517 [LNIND 1984 SC 267] [LNIND 1984 SC 267] [LNIND 1984 SC 267]. 65 Lt. Col. P.R. Chaudhary v. Municipal Corporation of Delhi, V. Srinivas v. Machines and Machine tools P. Ltd. (2000) 4 SCC 577 [LNIND 2000 SC 736] [LNIND 2000 SC 736] [LNIND 2000 SC 736], 585 (para 7). 66 Piara Singh v. State of Punjab, (2000) 5 SCC 765 [LNIND 2000 SC 913] [LNIND 2000 SC 913] [LNIND 2000 SC 913], 769 (para 13) : AIR 2000 SC 2352 [LNIND 2000 SC 913] [LNIND 2000 SC 913] [LNIND 2000 SC 913]. 67 Godika Transport Co. v. T.A.T. Jaipur, AIR 1975 Raj 174. 68 Also see, supra, Chapter VIII, under "Directions to Quasi-Judicial Bodies." There the discussion was on general directions. Here the discussion is on specific directions. 69 AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1959 SCR 551; JAIN, Cases, Chapter XIII, Sec. J. Also, supra, Chapter XIII. 70 AIR 1970 SC 1498 : (1970) 3 SCC 76; JAIN, Cases, Chapter XIII, Sec. J. 71 R. Rodrigues v. W.G. Ranadive, AIR 1970 Goa 94. Also see, infra, under Discretionary Powers, Chapter XIX .

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72 AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185]. 73 AIR 1970 SC 1896 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350]: (1969) 1 SCC 308; JAIN, Cases, Chapter XIII, Sec. J. 74 See, supra, Chapter IX . 75 AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216]: (1970) 1 SCC 795; JAIN, Cases, Chapter XIII, Sec. J. 76 State of U.P. v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505; JAIN, Cases, 597. 77 Nagaraj Shivarao Karjasi v. Syndicate Bank Head Office, Manipal, AIR 1991 SC 1507 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248]: (1991) 3 SCC 219 : 1992 (2) LLJ 149 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248] 78 AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: 1966 (2) SCR 982. Also see, Channagiri v. Dist. Magistrate, AIR 1971 Mys 244. 79 AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358],1652 : (1970) 2 SCC 744 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]. 80 AIR 1970 Cal 548 [LNIND 1970 CAL 72] [LNIND 1970 CAL 72] [LNIND 1970 CAL 72]. 81 Supra, Chapter VIII. 82 B. Rajgopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]: 1964 (7) SCR 1, supra, Chapter VIII; JAIN, Cases, Chapter VII, 396. Also, Interstate Transport Commission v. P. Manjunath, AIR 1972 SC 2250 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341]: (1973) 3 SCC 733; Chamkaur Singh v. State of Punjab, 1991 P&H 26. 83 B. Rajgopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]: (1964) 7 SCR 1. Reference may also be made to the following cases mentioned in Chapter XIII : Hira Singh v. State Transport (Appellate) Tribunal, AIR 1972 All 480; Jagjit Bus Service v. State Transport Commissioner, AIR 1987 SC 2272 [LNIND 1987 SC 519] [LNIND 1987 SC 519] [LNIND 1987 SC 519]: (1987) 4 SCC 131; T.G. Mudaliar v. State of Tamil Nadu, AIR 1973 SC 974 [LNIND 1973 SC 3] [LNIND 1973 SC 3] [LNIND 1973 SC 3]: (1973) 1 SCC 336; Bishwanath Nag v. State of Bihar, AIR 1986 Pat 59. 84 Ravi Roadways v. Asia Bi, AIR 1970 SC 1241 : (1970) 2 SCC 259. 85 See, under heading : 'Defects of the Systems', supra, Chapter VIII. 86 Godika Transport Co. v. T.A.T., Jaipur, AIR 1975 Raj 174. 87 B. Rajgopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]at 1581 : (1964) 7 SCR 1 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29]. 88 See also, under sub-heading : 'Discretion and Direction', under heading 'Enforceability of Directions', supra, Chapter VIII. 89 See, Supra, Chapter XI, under heading : "Departmental or Official or Policy Bias'. 90 See, supra, Chapter XI, 422 et seq. 91 M.S.Bindra v. U.O.I., (1998) 7 SCC 310 [LNIND 1998 SC 1195] [LNIND 1998 SC 1195] [LNIND 1998 SC 1195], 317 (para 14) : AIR 1998 SC 3058 [LNIND 1998 SC 1195] [LNIND 1998 SC 1195] [LNIND 1998 SC 1195]. 92 AIR 1987 SC 663 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC 538]: 1987 (1) LLJ 221 : (1987) 1 SCC 362 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC 538]; JAIN, Cases, Chapter XIII, Sec. K. 93 P. Sambamurthy v. State of A.P., AIR 1987 SC 663 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC 538]at 666 : (1987) 1 SCC 362 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC 538] : 1987 (1) LLJ 221 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC 538]. 94 Karnataka S.T.D. Carp. v. Karnataka S.T.A. Tribunal, AIR 1986 SC 2039 [LNIND 1986 SC 372] [LNIND 1986 SC 372] [LNIND 1986 SC 372]: (1986) 4 SCC 421; JAIN, Cases, Chapter XIII, Sec. K. 95 AIR 1988 SC 1089 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]: 1988 (2) LLJ 238 : (1988) 2 SCC 415 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]; JAIN, Cases, Chapter XIII, Sec. K. 96 B.B. Rajwanshi v. State of U.P., AIR 1988 SC 1089 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]at 1095 : 112, 118; 2002 (1988) 2 SCC 415 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]: 1988 (2) LLJ 238

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[LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]. 97 AIR 1985 SC 860 [LNIND 1985 SC 68] [LNIND 1985 SC 68] [LNIND 1985 SC 68]: 1985 (1) LLJ 519 : (1985) 2 SCC 103 [LNIND 1985 SC 68] [LNIND 1985 SC 68] [LNIND 1985 SC 68]; JAIN, Cases, Chapter XIII Sec. K. 1 V. Veerarajan v. Govt of T.N., AIR 1987 SC 695 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49]: (1987) 1 SCC 479 : 1987 (1) LLJ 209 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49]. Also see, Workmen of Syndicate Bank, Madras v. Govt. of India, AIR 1985 SC 1667 [LNIND 1984 SC 301] [LNIND 1984 SC 301] [LNIND 1984 SC 301]: 1986 Supp SCC 483 1985 (1) LLJ 93 [LNIND 1984 SC 301] [LNIND 1984 SC 301] [LNIND 1984 SC 301]; Ramawatar Sharma v. State of Haryana, AIR 1985 SC 915 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122]: (1985) 2 SCC 189. 2 Bombay Union of Journalists v. State of Bombay, AIR 1964 SC 1617 [LNIND 1963 SC 305] [LNIND 1963 SC 305] [LNIND 1963 SC 305]: 1964 (1) LLJ 351. 3 AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92] [LNIND 1958 SC 92]: 1958 (1) LLJ 634; JAIN, Cases, Chapter XIII, Sec. K. 4 See, infra, for this provision. 5 Referring to S. Sections 21 of the General Clauses Act, 1887, the Court ruled that "the rule of constriction enunciated by S. Sections 21 of the General Clauses Act in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of S. 10(1) of the Industrial Disputes Act." 6 A.S. Production Agencies v. Industrial Tribunal, AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]: (1979) 1 SCC 1; see, infra, Chapter XV on this point. For the text of this case, see, JAIN, Cases, Chapter XIV, Sec. C. 7 A.S. Production Agencies v. Industrial Tribunal, AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]: (1979) 1 SCC 1; JAIN Cases, Chapter XIV, Section C. 8 AIR 1963 SC 1464 [LNIND 1963 SC 10] [LNIND 1963 SC 10] [LNIND 1963 SC 10]: 1964 (1) SCR 656. 9 Also, Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 1962 SC 797 [LNIND 1961 SC 382] [LNIND 1961 SC 382] [LNIND 1961 SC 382]. 10 State of West Bengal v. Ruttonjee & Co., AIR 1970 Cat 548. 11 See, e.g., Chhanagiri v. Dist. Magistrate, AIR 1971 Mys 244; State of Punjab v. Hari Krishnna Sharma, AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362]: (1966) 2 SCR 982. 12 Supra, Chapter VIII, 225. 13 Jagjit Bus Service v. S.T. Commr., AIR 1987 SC 2272 [LNIND 1987 SC 519] [LNIND 1987 SC 519] [LNIND 1987 SC 519]: (1987) 4 SCC 131; JAIN, Cases, Ch XII Sec. O. 14 U.O.I. v. A.N. Saxena, (1992) 3 SCC 124 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284], 127-28 : AIR 1992 SC 1233 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284]: 1993 (2) LLJ 747. 15 (1993) 2 SCC 49 [LNIND 1967 SC 320] [LNIND 1967 SC 320] [LNIND 1967 SC 320] : 1993 (1) LLN 739. 16 Union of India v. A.N. Saxena, (1992) 3 SCC 124 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284], 128 : AIR 1992 SC 1233 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284]: 1993 (2) LLJ 747. 17 U.O.I. v. K.K. Dhawan, (1993) 2 SCC 56 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67] : AIR 1993 SC 1478 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67]: 1993 (1) LLJ 777. 18 The Supreme Court has reiterated the above-mentioned grounds in U.O.I. v. Upendra Singh (1994) 3 SCC 357 [LNIND 1994 SC 238] [LNIND 1994 SC 238] [LNIND 1994 SC 238] : 1994 (1) LLJ 808 : JT 1994 (1) SC 658 [LNIND 1994 SC 238] [LNIND 1994 SC 238] [LNIND 1994 SC 238]. 19 M.P. JAIN, Indian Constitution Law, 226 (1987). 20 (1999) 7 SCC 409 [LNIND 1999 SC 658] [LNIND 1999 SC 658] [LNIND 1999 SC 658], 429-30 (paras 41, 42 and 43) : AIR 1999 SC 2881 [LNIND 1999 SC 658] [LNIND 1999 SC 658] [LNIND 1999 SC 658], relying on Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 [LNIND 1969 SC 249] [LNIND 1969 SC 249] [LNIND 1969 SC 249] : AIR 1970 SC 253 [LNIND 1969 SC 249] [LNIND 1969 SC 249] [LNIND 1969 SC 249]; State of Punjab v. Ex-Constable Ram Singh, (1992) 4 SCC 54 [LNIND 1992 SC 452] [LNIND 1992 SC 452] [LNIND 1992 SC 452] : (1992) 21 ATC 435 and Union of India v. K.K. Dhawan, (1993) 2 SCC 56 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67] : (1993) 24 ATC 1 : AIR 1993 SC 1478 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67]. 21 AIR 1980 Kant 53 [LNIND 1979 KANT 201] [LNIND 1979 KANT 201] [LNIND 1979 KANT 201]. 22 B. Rajagopala Naidu v. State Transport Appellate Tribunal, AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29]

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[LNIND 1964 SC 29]: 1964 (7) SCR 1; JAIN, Cases, Chapter VII 23 See, for discussion on this aspect. Supra. Chapter X1, under the heading "Rule against Bias," especially under "Policy Bias." 24 AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427; JAIN, Cases, Chapter XIII, Sec. 1. 25 Also see, Infra. 26 State of Orissa v. Bhagaban Sarangi, (1995) 1 SCC 399 : 1995 (7) SLR 439. 27 M.S. Bindra v. Union of India, (1998) 7 SCC 310 [LNIND 1998 SC 1195] [LNIND 1998 SC 1195] [LNIND 1998 SC 1195], 318 (para 20) : AIR 1998 SC 3058 [LNIND 1998 SC 1195] [LNIND 1998 SC 1195] [LNIND 1998 SC 1195]. 28 K.S. Venkataraman & Co. v. State of Madras, AIR 1966 SC 1089 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND 1965 SC 262]: (1966) 60 ITR 112 : 1966 (2) SCR 229 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND 1965 SC 262]; Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78 [LNIND 1968 SC 99] [LNIND 1968 SC 99] [LNIND 1968 SC 99]: 1968 (3) SCR 662. Also, Commissioner of Gift Tax v. Madan, AIR 1970 Raj 219 [LNIND 1969 RAJ 29] [LNIND 1969 RAJ 29] [LNIND 1969 RAJ 29]: Sree Raja Kandvegulla v. State of Andhra Pradesh, AIR 1971 SC 71 [LNIND 1969 SC 387] [LNIND 1969 SC 387] [LNIND 1969 SC 387]: (1969) 3 SCC 71; Ghulam Mohd. v. Ghulam Qadir, AIR 1974 J&K 83. 29 Tata Iron and Steel Co. v. State of Orissa, (1970) 25 STC 171 [LNIND 1969 ORI 75] [LNIND 1969 ORI 75] [LNIND 1969 ORI 75]. J.K. Manufacturers v. Sales Tax Officer, AIR 1970 All 362 [LNIND 1969 ALL 59] [LNIND 1969 ALL 59] [LNIND 1969 ALL 59]. 30 Badrinath v. Govt. of T.N., (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC 1324], 413 (para 27). 31 See, AKEHURST, Revocation and Administrative Decisions, (1982) Pub Law, 613. 32 Patel Narshi Thakershi v. Pradumansinghji Arjunsinghji, AIR 1970 SC 1273, 1275 : (1971) 3 SCC 844; Bhagwanji Bawanji Patel v. State of Gujarat, AIR 1971 Guj 64; H.C. Suman v. Rehabilitation Ministry Employees Coop. House Building Society Ltd., (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], 489, 503 : AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], Godde Venkateswara Roa v. Govt. of AP, AIR 1966 SC 828 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]: 1966 (2) SCR 172; Tikaram v. Mindikota Shikshan Prasarak Mandal, AIR 1984 SC 1621 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205]: (1984) 4 SCC 219 : 1984 (2) SLR 605; Harbhajan Singh v. Financial Commissioner (Taxation), Punjab, AIR 1990 P&H 237 reversed in Financial Commissioner (Taxation), Punjab v. Harbhajan Singh, (1996) 9 SCC 281 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] : AIR 1996 SC 3287 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199]: JT 1996 (4) SC 326. 33 See under heading : 'Res-judicata', supra, this chapter. 34 B. Chunibhai v. Narayanrao, AIR 1965 SC 1457 [LNIND 1964 SC 340] [LNIND 1964 SC 340] [LNIND 1964 SC 340]: 1965 (2) SCR 328. Also, Harbhajan Singh v. Karam Singh, AIR 1966 SC 641 [LNIND 1965 SC 222] [LNIND 1965 SC 222] [LNIND 1965 SC 222]: 1966 (1) SCR 817; State of Madhya Pradesh v. Haji Hasan, AIR 1966 SC 905 [LNIND 1965 SC 346] [LNIND 1965 SC 346] [LNIND 1965 SC 346]: 1966 (2) SCR 854; C.I.T. v. Straw Products, AIR 1966 SC 1113 [LNIND 1965 SC 349] [LNIND 1965 SC 349] [LNIND 1965 SC 349]: (1966) 60 ITR 156; Bhagwanji B. Patel v. State of Gujarat, AIR 1971 Guj 64; Mehar Singh v. N.T. Dass, AIR 1972 SC 2533 : (1973) 3 SCC 731; Saryanarayana Banerjee v. Charge Officer, AIR 1975 Cal 43 [LNIND 1974 CAL 4] [LNIND 1974 CAL 4] [LNIND 1974 CAL 4]; P. Satyanarayana v. Land Reforms Tribunal, AIR 1980 AP 149 [LNIND 1979 AP 89] [LNIND 1979 AP 89] [LNIND 1979 AP 89]; Debabrata Tripathy v. State, AIR 1981 Cal 114 [LNIND 1981 CAL 1] [LNIND 1981 CAL 1] [LNIND 1981 CAL 1]; Gram Panchayat, Kanonda v. Dir. Consolidation of Holdings, AIR 1990 SC 763 [LNIND 1989 SC 512] [LNIND 1989 SC 512] [LNIND 1989 SC 512]: 1989 Supp (2) SCC 465. 35 Kuntesh v. Management, H.K. Mahavidyalaya, Sitapur, AIR 1987 SC 2186 : (1987) 4 SCC 525 : 1987 (5) SLR 643; JAIN, Cases, Chapter XIII, Sec. L. 36 AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], 1462 : (1980) 3 SCC 402 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]. 37 In H.C. Suman v. Rehabilitation Ministry Employees Co-op House Building Society Ltd., AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421]: (1991) 4 SCC 485,also, the Supreme Court has said that a quasi-judicial order once passed and having become final cannot be reviewed by the authority passing that order unless power of review has been specifically conferred. 38 Dharam Chand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427. Earlier, in D.N. Roy v. State of Bihar, AIR 1971 SC 1045 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402]: (1970) 3 SCC 119,the Supreme Court had ruled that neither the Mines and Minerals (R&D) Act, 1957,nor the Mineral Concession Rules have any provision empowering the Central Government to review its order granting a mining lease to an applicant. The proceedings were held to be of a quasi-judicial nature. Also see, State of Assam v. J.N. Roy Biswas, AIR 1975 SC 2277 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569]: 1976 (2) LLJ 17 : (1976) 1

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SCC 234 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569]. 39 United India Minerals v. Collector of Customs, (1971) Crlj 1370; Jute Investment Co. v. S.K. Srivastava, 77 CWN 501 (1972-73). 40 Mehar Singh v. N.T. Das, AIR 1972 SC 2533 : (1973) 3 SCC 731. 41 State of Assam v. J.N. Roy Biswas, AIR 1975 SC 2277 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569]: (1976) 1 SCC 234 : 1976 (2) LLJ 234 supra, note 167. 42 Rama Debi v. Union of India, AIR 1988 Cal 39; JAIN, Cases, Chapter XIII, Sec. L. 43 Tika Ram v. Mundikota Shikshan Prasarak Mandal, AIR 1984 SC 1621 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205]: (1984) 4 SCC 219 : 1985 (3) SLR 43. Also see, infra, Vol. II, under Certiorari : Error of Jurisdiction. 44 Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108]: 1962 Supp (3) SCR 713. Also see, State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270]: 1961 (2) SCR 371,under Institutional Decisions. See also, JAIN, Cases, Chapter IX, Secs. I and J . 45 See under heading : 'Communication of an Adjudicatory Order', infra this chapter; see also, next Chapter. 46 Kashinath G. Jalani (Dr.) v. The Speaker, JT 1993 (3) SC 594 : AIR 1993 SC 1873 [LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319]: (1973) 2 SCC 703; JAIN, Cases, Chapter XIII, Sec. L. 47 Grindlays Bank v. Central Govt. Industrial Tribunal, AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484], 608 : 1980 Supp SCC 420 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484] : 1981 (1) LLJ 327 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484]. 48 Income Tax Officer v. Murlidhar, AIR 1974 Cal 272 [LNIND 1973 CAL 170] [LNIND 1973 CAL 170] [LNIND 1973 CAL 170]. 49 Under sub-heading : 'Income Tax Appellate Tribunal', heading 'some select Adjudicatory Bodies, supra, Chapter XIII; JAIN, Cases, Chapter XIL Sec. R. 50 C.I.T. v. Bhattacharya, AIR 1979 SC 1725 [LNIND 1979 SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274]: (1979) 4 SCC 121 : (1979) 118 ITR 461 [LNIND 1979 SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274]. 51 P. Satyanarayana v. Land Reforms Tribunal, AIR 1980 AP 149 [LNIND 1979 AP 89] [LNIND 1979 AP 89] [LNIND 1979 AP 89]. 52 See under : 'Monopolies and Restrictive Trade Practices Commission' supra, Chapter XIII. 53 AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59], 813 : (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]; JAIN, Cases, Chapter XIII, Sec. L. 54 See, infra, Chapter XIX, on Relevant and Irrelevant Considerations. 55 See under : 'Bar Council' under heading 'some select Adjudicatory Bodies'. Supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. G. 56 See under : '(vi) Railways', heading 'some select Adjudicatory Bodies', supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. M. 57 Suresh Kumar v. Town Improvement Trust, AIR 1975 MP 189. 58 Diwan Bros. v. Central Bank, Bombay, AIR 1976 SC 1503 [LNIND 1976 SC 224] [LNIND 1976 SC 224] [LNIND 1976 SC 224]: 112, 118, 2002 (1976) 3 SCC 800 [LNIND 1976 SC 224] [LNIND 1976 SC 224] [LNIND 1976 SC 224]. 59 See under : 'Income Tax Appellate Tribunal', under heading 'some select Adjudicatory Bodies', supra, Chapter XIII. 60 See under : '(iv) Railways' under heading 'some select Adjudicatory Bodies', supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. N. 61 See under : '(iv) Railways' under heading 'some select Adjudicatory Bodies', supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. N. 62 A.A. Haja Muniuddin v. Indian Railways, AIR 1993 SC 361 [LNIND 1992 SC 840] [LNIND 1992 SC 840] [LNIND 1992 SC 840]: (1992) 4 SCC 736; JAIN, Cases, Chapter XII, Section N. 63 See under : 'Exclusion of Natural Justice can be implied if parent statute itself contains a procedure to be followed', supra, Chapter IX.

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64 Sunil Kumar v. State of West Bengal, AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136]: (1980) 3 SCC 304; also, JAIN, Cases, 852. 65 Also see, R.P. Bhatt v. U.O.I., Srinivas v. UOI, 1986 Lab IC 790 : AIR 1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518]: (1986) 2 SCC 651. In G.S. Sodhi v. U.O.I., AIR 1991 SC 1617 : 1991 (1) Crimes 207 : 1991 Crlj 1947 : (1991) 2 SCC 382,the Supreme Court considered the question whether in the instant case the Court Martial followed the procedural norms as contained in the Rules made under the Army Act. 66 Tata Consulting Engineers v. Workmen, AIR 1981 SC 599 [LNIND 1980 SC 453] [LNIND 1980 SC 453] [LNIND 1980 SC 453], 604 : 1980 Supp SCC 627 [LNIND 1980 SC 453] [LNIND 1980 SC 453] [LNIND 1980 SC 453] : 1981 (2) LLJ 147 [LNIND 1980 SC 453] [LNIND 1980 SC 453] [LNIND 1980 SC 453]. 67 Mayapati v. State of Haryana, AIR 1973 P&H 356; Dayalal v. S.T. Authority, AIR 1973 Ori 39. 68 Mohan Lal v. The Charge Officer, Purnea, AIR 1974 Pat 275; Raghuraj v. Basudeo, AIR 1950 Pat 318. Also see, infra, Vol. II, under Judicial Control : Writs. 69 Harnam Singh v. State of Punjab, AIR 1974 P&H. 288. See, infra, Vol. II, under Writs, for the distinction between 'error of law within jurisdiction" and "Jurisdictional error". 70 Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 :See also, Gurdit Singh v. State of Punjab, AIR 1974 SC 1791 [LNIND 1974 SC 148] [LNIND 1974 SC 148] [LNIND 1974 SC 148]: (1974) 2 SCC 260. 71 Also, see, infra. Vol. II, under Certiorari. For cases on this topic, see JAIN, Cases, Chapter XIII, Sec. M . 72 Grindlays Bank Ltd. v. Central Government Industrial Tribunal, AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484]: 1980 Supp SCC 420; JAIN, Cases, Chapter XIII, Section T; ITO, v. Murlidhar, AIR 1974 Cal 272 [LNIND 1973 CAL 170] [LNIND 1973 CAL 170] [LNIND 1973 CAL 170]; JAIN, Cases, Chapter XII, Secs. R and T. 73 A.A. Haja Muniuddin v. Indian Rlys, AIR 1993 SC 361 [LNIND 1992 SC 840] [LNIND 1992 SC 840] [LNIND 1992 SC 840]: (1992) 4 SCC 736; JAIN, Cases, Ch XII, Sec. N. 74 See under : '(ii) Assessment of Customs and Excise', supra, Chapter XIII. 75 AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]: (1990) 4 SCC 453 : (1990) 186 ITR 722 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]. 76 Union of India v. Paras Laminates, AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]at 699 : (1990) 4 SCC 453 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]. See, JAIN, Cases, Chapter XII, Sec. S . 77 AIR 1974 All 140. 78 See also, Rent Control & Eviction Officer v. M.M. Laloraya (Dr.), AIR 1972 All 559. 79 Infra, Vol. II, under Judicial Control. 80 Udit Narain Singh v. Board of Revenue, AIR 1963 SC 786 [LNIND 1962 SC 338] [LNIND 1962 SC 338] [LNIND 1962 SC 338]: 1964 (1) SCJ 151; Birendra Nath v. State, AIR 1973 Cal 94 [LNIND 1972 CAL 189] [LNIND 1972 CAL 189] [LNIND 1972 CAL 189]. Also, infra, Vol. II, under Writs. 81 Puzhakkal Edam v. Kunchappan, AIR 1974 Ker 210 [LNIND 1974 KER 42] [LNIND 1974 KER 42] [LNIND 1974 KER 42]. Also, infra, Vol. II, under High Court's Superintendence over Tribunals. 82 AIR 1981 SC 427 [LNIND 1980 SC 433] [LNIND 1980 SC 433] [LNIND 1980 SC 433]: (1980) 4 SCC 586 : 1980 Crlj 1484. Also, JAIN, Cases, Chapter XIII, Sec. N. 83 Supra, Chapters IX and X. 84 Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108]: 1962 Supp (3) SCR 713; State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270]: 1961 (2) SCR 371. 85 Ajantha Industries v. Central Board of Direct Taxes, AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]: (1976) 1 SCC 1001. 86 See, under : '(viii) Foreign Exchange Regulation Appellate Board', under heading 'some select Adjudicatory Bodies', supra Chapter, XIII. 87 Dara Singh v. Director of Enforcement, AIR 1981 SC 426 : (1980) 4 SCC 586 : 1980 Crlj 1484. Also, Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer, AIR 1961 SC 1500 [LNIND 1961 SC 145] [LNIND 1961 SC 145] [LNIND 1961 SC 145]: 1962 (1) SCJ 696; Industrial Cables (India) Ltd. v. Board of Trustees, Port of Bombay', AIR 1990 Bom 250.

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88 AIR 1991 SC 2114 : 1992 Supp (1) SCC 471 : (1991) 55 ELT 289 [LNIND 1991 SC 431] [LNIND 1991 SC 431] [LNIND 1991 SC 431]; JAINCASES, Chapter XIII, Sec. E. 89 See Union of India v. Kamlakshi Finance Corp. Ltd., AIR 1992 SC 711 : 1992 Supp (1) SCC 648 : (1991) 55 ELT 433; JAIN, Cases, Chapter XIII, Sec. I. 90 (1990) 4 SCC 454 : AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC 426]: (1990) 186 ITR 722. Also see, R. v. Preston Supplementary Benefits Appeal Tribunal, (1975) 1 WLR 624. 91 Also see on this point, infra, Chapter XIX, under "Fettering Discretion"; JAIN, Cases, Chapter XVI. 92 For CEGAT, see, under : '(ii) Assessment of Customs and Excise', supra, Chapter XIII. 93 1976 ICR 170. 94 For further discussion on this point, see, infra, Chapter XXII, Vol. II, under Promissory Estoppel, 95 Both these provisions are in pari materia to each other. 96 S. 14 of the Contempt of Court Act; see, Board of Revenue, U.P. v. Vinay Chandra, AIR 1981 SC 723 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482]: (1981) 1 SCC 436; JAIN, Cases, Chapter XIII, Sec. O. 1 Infra, High Courts Superintendence over Tribunals. 2 Infra, High Courts Superintendence over Tribunals. 3 AIR 1981 SC 723 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482]: (1981) 1 SCC 436. 4 Brajnandan Sinha v. Jyoti Narain, AIR 1956 SC 66 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98], 70 : 1956 Crlj 156 : 1955 (2) SCR 955 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98]. Also see, infra, Chapter XVI . 5 AIR 1967 SC 1494 [LNIND 1967 SC 70] [LNIND 1967 SC 70] [LNIND 1967 SC 70]: 1967 Crlj 1380 : 1967 (3) SCR 163 [LNIND 1967 SC 70] [LNIND 1967 SC 70] [LNIND 1967 SC 70]; JAIN, Cases, Chapter XIII, Sec. O. 6 Jugal Kishore v. Sitamarhi Central Co-operative Bank, AIR 1967 SC 1494 [LNIND 1967 SC 70] [LNIND 1967 SC 70] [LNIND 1967 SC 70]at 1499 : 1967 Crlj 1380 : 1967 (3) SCR 163 [LNIND 1967 SC 70] [LNIND 1967 SC 70] [LNIND 1967 SC 70]. 7 AIR 1981 SC 723 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482]: (1981) 1 SCC 436. 8 AIR 1970 Cal 477 [LNIND 1969 CAL 204] [LNIND 1969 CAL 204] [LNIND 1969 CAL 204]. 9 See under : 'Bar Council', Chapter XIII, supra; JAIN, Cases, Chapter XII, Sec. G. 10 N. Dutta v. Anil Kumar, 79 Cal WN 684. 11 AIR 1986 Guj 210; JAIN, Cases, Chapter XIII, Sec. O. 12 17 of the Administrative Tribunals Act, supra, Chapter XIII, under heading : 'XIV Central Administrative Tribunal (CAT)', JAIN, Cases, Chapter XII, Sec. W, runs as follows : 17. Powers to pettish for contempt.--A Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act, 1971 (70 of 1971), shall have effect subject to the modifications that (a) the references therein to a High Court shall be construed as including a reference to such Tribunal; (b) the references to the Advocate-General in Section 15 of the said act shall be costrued,--(i) in relation to the Central Administrative Tribunal, as a reference to the Attorney General or the Solicitor-General or the Additional Solicitor-General... 13 S. 13(B) of the MR TP Act; JAIN, Cases, Chapter XII, Sec. H. 14 See under : '(ii) Assessment of Customs and Excise, supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. S. 15 For this Board, see, under : '(X) Economic Regulation', supra Chapter XIII; JAIN, Cases, Chapter XII, Sec. I. 16 See, Supra, JAIN, Cases, Chapter XII, Sections G and O . 17 State of M.P. v. Reva, Shankar, AIR 1959 SC 102 [LNIND 1958 SC 110] [LNIND 1958 SC 110] [LNIND 1958 SC 110]: 1959 Crlj 251. 18 Waryam Singh v. Sudhu Singh, AIR 1972 SC 905 : 1972 Crlj 635 : (1972) 1 SCC 796. 19 Infra, Vol. II, under Judicial Control. 20 For the concept of a tribunal, see, under heading : 'Tribunal', Chapter XIII, supra. 21 Tribunals have been set up inter alia under the following statutes : The Urban Land Ceiling Act, 1976 : The Smugglers and

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Foreign Exchange Manipulations (Forfeiture of Property) Act, 1976. 22 For example, the Central Government is taking steps to establish a national environment tribunal to fulfil the demand for a mechanism for giving relief and compensation for damages to persons, property and environment, in particular to victims of accidents in hazardous industries. A Bill for the purpose has been moved in the Lok Sabha on the 24th May, 1995: The Economic Titles, New Delhi, dated May 25, 1995, 4. 23 See under sub-heading : 'Income Tax Appellate Tribunal' under heading 'some select Adjudicatory Bodies', supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. R. 24 See under sub-heading : 'Income Tax Appellate Tribunal' under heading 'some select Adjudicatory Bodies', supra, Chapter XIII. 25 S.N. JAIN, Administrative Tribunals in India, 16. 26 For these various tribunals established under the Consumer Protection Act, see, See under : '(XV) Consumer Protection', supra, Chapter XIII; JAIN, Cases, Chapter XII, Sec. K 27 Supra, Ch XIII; JAIN, Cases Chapter XII, Sec. L. 28 See, under : 'Monopolies and Restrictive Trade Practices Commission', Chapter XIII, supra.; JAIN, Cases, Chapter XII, Sec. H. 29 S.N. JAIN, Cases, Chapter XII, Section H. For powers of the High Courts over subordinate judiciary see, M.P. JAIN, Indian Constitutional Law, 224-227 (1987). 30 S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124; JAIN, Cases, Chapter XII, Sec. W. 31 Supra, Chapter XIII, supra, 499-505; JAIN, Cases, Chapter XII, Sec. B. 32 Awdhesh Kumar Singh v. State, AIR 1988 Pat 237; JAIN, Cases, Chapter XII, Sec. X. 33 See under heading : 'Departmental or Official or Policy Bias', supra Chapter XI; JAIN, Cases, 907-912. 34 See, Accounting & Secretarial Services v. Union of India, AIR 1963 Cal 102, 107. 35 Comments have been made on the System earlier, see, supra, Chapter XI and Chapter XIII. Also see, JAIN, Cases, Chapter XI, 907, 912. 36 See under 'Franks Committee', Chapter XIII; JAIN, Cases, Chapter XII, Sec. C 37 Supra, Chapter XIII, 499-505; JAINCASES, Chapter XII, Section B. 38 Supra, Chapter Xl, See under heading : 'Departmental or Official or Policy Bias', Chapter XI : JAIN Cases, Chapter XII, Sec. C, 887-9I7. 39 Supra, Chapter XIII See, under heading : '(viii) Foreign Exchange Regulation Appellate Board', Chapter XIII. JAIN Cases Ch XII, Sec. J. 40 Supra, Chapter XIII, See, under heading : 'Franks Committee'; JAIN, Cases, Chapter XII, Sec. B. Also, GARNER, The Council on Tribunals, 1965 Pub Law, 321; YARDLEY, Principles of Adm. Law, 193-95 (1981) : 1 All L Rev 85 (1969); S JILI, 188-89, SAYERS & WEBB, Franks Revisited : A Model of the Ideal Tribunal, 9 Civil Justice Qly., 36 : WILLIAMS, The Tribunal System--Its Future Control and Supervision, 9 Civil Justice Qly., 27. 41 See, S.N. JAIN, Adm. Tribunals, in India, 16. CRAIG has made a similar suggestion as regards the Council in England. 42 See, under heading : 'Franks Committee', supra, Chapter XIII. Also see, M.P. JAIN, Changing Face of Adm. Law in India & Abroad, 68-69 (1982). 43 See, supra, Chapter X. In the following discussion, the term natural justice includes fairness also unless the Context Suggests otherwise. 44 Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; JAIN, Cases, 529. 45 See, D.H. CLARK, Natural Justice : Substance and Shadow, (1975), Public Law 27. 46 Supra, Chapters X, XI and XII; JAIN, Cases, Chapters IX, X and Xl. 47 See, supra, Chapter XII; JAIN, Cases, Chapter XI.

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48 Siemens Engg. & Mfg. Co. v. U.O.I., AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981; JAIN, Cases, 749. 49 Dharam Chand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427. 50 Mahadayal Prem Chandra v. Commercial Tax Officer, AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]: 1959 SCC 551. 51 Blaze and Central (P.) Ltd. v. U.O.I., AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]. 52 Mahabir Prasad Santosh Kumar v. State of U.P., AIR 1967 SC 1301 [LNIND 1967 SC 386] [LNIND 1967 SC 386] [LNIND 1967 SC 386]at p. 1302 : (1967) 2 SCR 325 [LNIND 1967 SC 386] [LNIND 1967 SC 386] [LNIND 1967 SC 386]. 53 As Seepersad observes : "Put bluntly, fairness is nothing but natural justice; it is another name for the audi alteram partem rule. If there is any difference, which is strongly disputed, such difference must be trivial for fairness lies within and not outside the audi alteram rule." See, C.P. SEEPERSAD, Fairness and Audi Alteram Partem, (I975) Public Law 242, 257. 54 Supra, Chapter II. The APA 1946 has accumulated a good deal of literature in the USA and other countries. See, BYSE, The Federal Administrative Procedure Act, 1 JILL, 89 (1958-59); SCHWARTZ, The Administrative Procedure Act in Operation, 29 NYUL Rev., 1173 (1954) JAFFE The American Administrative Procedure Act, (1959) Pub Law 218; SCHWARTZ, Memorandum to the Committee on Administrative Tribunals and Enquiries (Franks Comm.) 35 Can BR 743 (1957); SCHWARTZ, Administrative Law--A Casebook (1988); also, SCHWARTZ and WADE, Legal Control of Government, 108; JAIN, Cases, Chapter XII, Sec. C. 55 SCHWARTZ and WADE, Legal Control of Government, 108. 56 Law Comm., Report on Reform of Judicial Administration (XIV Report), Vol. II, 671-95 (1958) JAIN, Cases Ch XII Sec. D. 57 WADE, Administrative Law, 868-70. Also see, WADE, Crossroads in Adm. Law, Current Legal Problems, 90-91 (1968). 58 M.P. JAIN, Reform of Australian Adm. Law, 15 JILI, 185, 207 (1973). On KERR Committee, See, under sub-heading : 'Australia', Heading 'Growth of Administrative Law', supra, Chapter II; M.P. JAIN, Reform of Administrative Law, in Australia, 15 JIL 1, 185-216 (1973). 59 For comments on this Act see, Statutory Reform of Adm. Law : The Canadian Experience, (1989) JMCL 61. 60 See, infra, Under Judicial Control. 61 See under : 'Central Administrative Tribunal (CAT)', 'some select Adjudicatory Bodies', Chapter XIII; JAIN, Cases, Chapter XII, Sec. W. 62 See, under heading : 'Arts. 323A & 323B of the Constitution', Chapter XIII. (Insurance); JAIN, Cases, Chapter XII, Sec. X 63 On writ-jurisdiction of the High Courts, see infra, Vol. II. under Judicial Control. 64 I.L.I., The Supreme Court under Strain, 97, 98 (1978). 65 I.L.I., The Supreme Court under Strain, 97, 98 (1978). 66 I.L.I., The Supreme Court under Strain, 97, 98 (1978). 67 For discussion on Art. 136, see, infra, Vol. II. 68 See, SHARPE, The Administrative Appeals Tribunal & Policy Review (1986); JAIN, Changing Face, of Adm. Law in India & abroad, 68-69 (1982); MASON, Administrative Review--The Experience of the First Twelve Years, (1989) 18 Fed LR 122. 69 Supra, Chapter II; also, See, under heading : 'Franks Committee', Chapter XIII, supra; JAIN, Cases, Chapter XII, Sec. B. 70 For some extracts from this report, see, JAIN, Cases, Chapter XII, Sec. D. 71 Supra. Chapter II, 38-40. 72 At the time, the author had suggested such a fullfledged inquiry by the Commission; See, M.P. JAIN, Tasks before the Administrative Reforms Commission; Reforms of the Indian Administrative Law, 2 Banaras L.J. 100, 115 (I966); also, S.N. JAIN, Administrative Tribunals in India (ILI, 1977). 73 For some extracts from this report, see, JAIN Cases, Chapter XII, Section D. 74 See, supra, this chapter.

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75 For a detailed discussion on this point, see, infra, Vol. ll, under Judicial Control. 76 See, supra, this chapter AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427. 77 Siemens Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202]: (1976) 2 SCC 981; Dharamchand v. State of Bihar, AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173]: (1976) 4 SCC 427; Mahadayal Prem Chandra v. C.T.O., AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53]; Blaze and Central (P.) Ltd. v. Union of India, AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73]; Mahabir Prasad v. State of U.P., AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764. 78 Supra, this chapter. 79 AIR 1993 SC 1769 [LNIND 1993 SC 466] [LNIND 1993 SC 466] [LNIND 1993 SC 466]: (1993) 4 SCC 119 : 1993 (5) SLR 802; JAIN, Cases, Chapter XIII, Sec. Y. 80 Supra, Chapter XIII. Under : '(ii) Assessment of Customs and Excise'; JAIN, Cases, Chapter XII, Sec. S. 81 See, infra, Vol. II, under Judicial Control for Public Interest Litigation. 82 Sampath Kumar v. Union of India, AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500]: (1987) 1 SCC 124. 83 Supra, See supra, under Income Tax Appellate Tribunal, Chapter XIII; JAIN, Cases, Chapter XII, Sec. R. 84 For a trenchant criticism of the working of CEGAT, see, I994 (64) ELT-A38-A108. 85 For more information on the functioning of the Council on "Tribunals, see, BAILEY, JONES, 4 MOWBRAY, Cases & Materials on Adm. Law, 126-141 (1992) : CHARLES D. ABLARD, Some Comparisons between the Council on Tribunals and the Administrative Conference of the United States, (1976) 24 Am Jl of Camp Law, 73. 86 In this connection, reference may be made to the Model Rules of Procedure for Tribunals developed by the Council on Tribunals : see, Parliamentary Paper, Cm I434, HMSO (London, 199I).

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XV ADMINISTRATIVE BODIES AND POWERS

CHAPTER XV ADMINISTRATIVE BODIES AND POWERS 1. ADMINISTRATIVE BODIES (a) Jurisdiction The jurisdiction of the State Govt. is derived from the statute, hence the statute is obliged to confine its jurisdiction within four corners thereof.1 The designated/administrative authority, which is created under a scheme, cannot act beyond the provisions of the scheme itself.2 The officers of the local authorities have a bounden duty not only to act within the four corners of the statute but having regard to the constitutional scheme in mind.3 The statutory authorities are bound to exercise their power only within the four corners of the Act or the Rules framed thereunder and not dehors the same.4 In a similar position are all the creatures of statue.5 The Bangalore Development Authority has been constituted for specific purposes. It cannot take any action which would defeat such purpose. The State also cannot interfere in the day-to-day functioning of a statutory authority. It can ordinarily exercise its power under Section 65 of the Bangalore Development Authority Act, 1976 where a policy matter is involved.6 The Narcotics Control Bureau is an administration body created by the Central Govt. under the Narcotic Drugs and Psychotropic Substances Act, 1985. Its jurisdiction can be enlarged by the Central Govt. by notification.7 In a case of land acquisition, the purpose

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for which the unused acquired is to be used, is to be decided only by the competent authority and not by the Court.8 The recommendations of the Pay Commission, here Fifth Central Pay Commission, are not ipso facto binding on the Government, as the Government has to accept and implement its recommendations consistent with its financial position.9 (b) Norms for exercise of powers When a statutory functionary passes an order, that too authorising a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated and such a concept is unknown in administrative law. The statutory functionaries are enjoined with a duty to pass written orders.10 Every statutory authority is bound by the rule of reasonableness and fairness.11 The State Electricity Board, being a statutory body and State within the meaning of Art. 12of the Constitution, is expected to discharge its statutory functions within a reasonable time having regard to the fact that it undertakes an important public utility service. Its actions besides being governed by the Electricity (Supply) Act, 1948 and the Regulations framed thereunder, it must also fulfil the test of reasonableness as envisioned under Art. 14 of the Constitution.12 The persons representing the public bodies are expected to discharge their functions faithfully and in keeping with the trust reposed in them.13 The Chairman of a Public Service Commission, being a constitutional trustee, his behavour has to be exemplary, his action transparent, his functioning has to be objective and in performance of all his duties, he has to be fair, detached and impartial.14 It is trite that the State in all its activities must not act arbitrarily. Equity and good conscience should be at the core of all Governmental functions. It is now well settled that every executive action which operates to the prejudice of any person must have the sanction of law. The executive cannot interfere with the rights and liabilities of any person unless the legality thereof is supportable in any Court of law. The impugned action of the State does not fulfil the aforementioned criteria.15 A statutory authority is expected to perform its duties as expeditiously as possible and have the actions taken quickly.16 In Suresh Chandra Sharma v. Chariman, U.P. SEB ,17 the Apex Court observed that the State Govt. has power under the Electricity Act to issue directives in the nature of policy directives, but the Chairman and top executive heads of the State Electricity Board, being packed by political bosses, the Govt. appears to be exercising unbridled power of interference in the day-to-day working of the Electricity Board. The interference in transfers and postings with the political patronage has totally destroyed the autonomous nature of the Board, which has been identified as a serious malaise affecting its functioning. The Board has now been split into eight autonomous corporations as Govt. companies, subject only to the directives of the State Govt. only on matters of general policy. The Court ordered that no Minister of the State of U.P., nor any Govt. Officer shall interfere with the transfers/postings of the officers in any of these corporations.18 It was contended that appointment to the post the Chief Secretary of a State is a prestigious one and looking to the tainted reputation and doubtful integrity of a certain IAS Officer, she should not have been appointed to the post, particularly when criminal cases were pending and a Commission had been appointed by the Supreme Court to look into the various aspects. The Apex Court observed that a time has come when the postings of officers holding sensitive posts should be done in a transparent manner giving no scope for any grievance. As to the impugned appointment, it was observed that it is not the case that no other officer was suitable to hold that post and it was a case of justifying an action. It is true that allegations against the said officer have to be established but justice should not only be done, rather it should appear to have been. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking : "Judge was biased". The logic is equally applicable to Governmental action and the Government.19 The bodies like a Development Authority should point out to the private parties, with whom they deal, of their rights as per judgment of the Supreme Court, in the instant case higher rate of interest on deposits as determined by the Apex Court.20 The Government and its officers are expected to be honest with Courts of law and not to take up patently a false stand. In the instant case, the Apex Court deprecated the behaviour of a false averment having been made by a senior officer of the rank of a Secretary to the Govt. and directed the Chief Secretary to warn the concerned officer not to repeat such behaviour and keep the warning in the file of the officer.21 A statutory body, when it acts in terms of a statute, is bound by its action. It cannot supplement or supplant the reason later on by way of affidavit.22

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The doctrine of public trust.--The ancient Roman empire developed a legal theory known as the "Doctrine of the public trust. It was founded on the ideas that certain common properties such as rivers, sea-shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (Res Nullious) or by every one in common (res communious). Under the English common law however the sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefits of the public. The Public Trust Doctrine primarily rests on the principle that certain resources like air sea waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. In M.C. Mehta v. Kamal Nath ,23 the Supreme Court observed that there was no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. Our legal system, based on English Common Law, includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. The issues presented in the instant case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate the change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislature the Courts can save as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. (c) Accountability Accountability and openness is imperative in conducting public dealings.24 A Government Officer may be held personally liable, if in discharge of his official duties, he acts maliciously or with oblique motive or mala fide. His action which is not bona fide or is malicious, is not protected.25 The Governments, Government departments or other statutory authorities are defendants in a large number of suits pending in various Courts in the country and they in a large number of cases either do not reply the notices or in the few cases where a reply is sent, it is generally vague and evasive and the object of the statutory provision is defeated for which there is no accountability of them. The Apex Court directed the Govts. and other statutory authorities to nominate, within three months, an officer who shall be made responsible to ensure that the replies to the notices are sent within the period stipulated in a particular legislation.26 Statutory authorities are also duty-bound to act in a manner preferring public interest over private interest.27 The Apex Court imposed a costs of Rs. 25,000/- to be paid by the State of J&K to the petitioner on account of lapses on the part of the State in not producing before the Court the relevant evidence to establish compliance with statutory requirements which had resulted in quashing of the order of detention.28 The State of Bihar proposed to establish a large number of High Schools under "Project School" Scheme, in implementation of which irregularities and for illegalities were reported. The Apex Court directed the State Govt. to take suitable

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action against those found responsible for them.29 In M.C. Mehta. Union of India,30 the Supreme Court observed that there was a large-scale flagrant violation of buildings, land use and town planning law in Delhi in running hazardous and noxious industries which was not possible without active connivance of the officers concerned for which they should be held accountable. Hence, it would be for the officers to show what effective steps were taken to stop the misuser after directions issued by the Apex Court. It further observed that appropriate directions for action, if any, against them and payment of compensation by them would be issued after the misuser is stopped. In Haryana Urban Development Authority v. Rekha Sharma ,31 the Apex Court ordered the Development Authority to recover the amount paid towards costs personally from the officers due to whose negligence it was required to pay costs. The Housing Board, refusing to rectify major defects in the flats allotted by it after full payment, was order to pay compensation of Rs. 60,000/- to get the flat repaired or to return the entire amount paid with interest at the will of the allottee. The Court directed an enquiry to fasten liability on the officers or officials who, at the relevant time, were incharge of the construction and who had passed such defective construction. It was observed that the conduct of the public body was such as deserved no sympathy. A public body, performing a public service cannot act in such a blatantly callous and corrupt manner.32 Imported goods were misdeclared by the customs officials with a view to circumvent import trade control provisions and remained unattended for about thirteen years. The Supreme Court directed the Chief Commissioner of Customs to file an affidavit explaining in detail the circumstances under which the goods in question remained unattended without initiation of any proceedings for so many years and also place on record the action, if any, which is proposed to be taken in case the inaction was the result of some of the officers of the department.33 In Research Foundation for Science (19) v. Union of India ,34 The Supreme Court directed the Chairperson of Jawahar Lal Nehru Port Trust and Mumbai Port Trust and the Chief Commissioner of Customs Department to file personal affidavits stating reasons for non-compliance with an order of the Court. The authorities under a Pollution Control Board in their joint inspection report prima facie abdicated their duties while reporting regarding environmental pollution caused by an industry to the Supreme Court, whereupon the Court observed that, when such authorities themselves have shown prima facie such dereliction of their duties, they must be made answerable for it. The Court required them to show cause why necessary directions be not passed in the matter.35 (d) Judicial control In T.N. Godavarman Thirumulpad (87) v. Union of India ,36 the Supreme Court, having regard to the nature of the functions of the executive body of Compensatory Aforestation Fund Management and Planning Authority, observed that it deserved to be expanded so as to include conservationists, environmentalists, economists and experts in forestry and hence, directed the relevant clause of the notification of the Authority be accordingly amended so as to accommodate two more environmentalists one of whom may be expert in the field of forests and the other in the field of forest economy development within a period of one month. In M.C. Mehta v. Union of India ,37 the Supreme Court appointed a Monitoring Committee in order to oversee the implementation of the law, namely, sealing of the residential premises misused for commercial purpose in terms of the letter and spirit of its directions. In Shri Malaprabha Co-operative sugar Factory Ltd. v. Union of India ,38 the Apex Court held that, if the Government omitted to take into consideration one unfavourable element, it cannot justify its omission to take into consideration another relevant element which is favourable to it opponent. A wrong decision by the Government does not give a right to enforce the wrong order and parity or equality.39 The especially constituted authorities in the rules and regulations are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed.40 Where the statutory authority, the Municipal Commissioner, is competent under Section 351 of the Bombay Municipal Corporation Act, 1888 to give notice requiring the person, doing any construction work, if contrary to the provisions of the Act, to show cause why the same should not be pulled down and having shown the cause, it is left to his discretion to decide whether or not to demolish the unauthorised construction, the Court should not interfere.41 (e) Designated authority

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If an authority has been designated by a statute enjoining him to perform statutory duties indisputably it is he who has to do the same but where Art. 311(1) of the constitution envisages that a delinquent officer should not be imposed with major penalties save and except an order passed by the appointing authority, the later becomes the designated authority. It is now trite that an authority higher than the appointing authority would also be the designated authority for the purpose of Art. 311 of the Constitution.42 2. NATURE OF ADMINISTRATIVE POWERS It has already been emphasized in the previous pages that with the demise of laissez faire, and the advent of the modern philosophy of welfare of social service state, the administrative organ practically every democratic country is now playing a very activist role, exercising more and more powers and performing more and more functions. The result is that it is impinging increasingly on the rights and interests of the citizen. The Administration has acquired vast powers, and the trend has not abated yet. The main tasks of the administrative organ today are no longer merely police or political; it performs vast regulatory and managerial functions as well.43 Formerly the various powers of the Administration were broadly classified as legislative, quasi-judicial and administrative. No scheme of classification of powers is really satisfactory. Under the legislative power, the Administration seeks to lay down a general rule of conduct or policy to be followed in the generality of cases.44 Powers of legislative nature have already been studied earlier under the heading of (Delegated Legislation.)45 A point to take note of is that at times it is possible to make either a legislative order or a non-legislative order under one and the same statutory provision. For example, many statutes enable the government to grant exemption from the operation of the concerned statute. If exemption is granted to a specified individual from the operation of law, the order may be characterised as (non-legislative).46 But, if exemption from the operation of a law is granted to a class, then the order may be characterised as legislative.47 Under its non-legislative power, the Administration proceeds from case to case and takes a decision in each individual matter which comes before it. For long, the judicial approach was first to characterise a non-legislative function as quasi-judicial or administrative, and then apply the rules of natural justice to the former.48 At this stage, (quasi-judicial) was linked with (natural justice), and, therefore, calling a function as (administrative) meant no (natural justice). But, with the progress of time, the judicial approach has undergone a sea change in this respect;49 this dichotomy between (quasi-judicial) and (administrative) functions has become blurred with the emergence of the (fairness) concept; it is now no longer necessary to call a function as (quasi-judicial, first and then apply (natural justice) thereto. The term quasi-judicial is now falling into disuse; natural justice is being transformed into fairness, and this concept is applied over a much larger area of the functioning of the Administration, including some functions which were earlier regarded as administrative and not quasi-judicial. In spite of this expansion of the parameters of natural justice or fairness, there still remains quite a large catena of functions of the Administration in which no hearing need be given to the affected party. These functions are also called administrative. The generic term (administrative) therefore includes some functions where the hearing procedure has to be resorted to by the Administration before reaching a decision as well as those functions where there is no such requirement. How to distinguish between these two classes of (administrative) functions? One way may be to call the latter category as (purely administrative). But, it may be less confusing and more articulate to designate the catena of functions where hearing is required as (adjudicatory,) and the rest of the functions where hearing cannot be claimed as (nonadjudicatory.) But the courts in India continue to use the terms (quasi judicial) and (administrative). The last few Chapters have been devoted to a discussion of the concepts of natural justice and fairness.50 Now something need be said about those residuary non-legislative powers and functions of the Administration where hearing procedure is not applicable either by way of natural justice or fairness. The term (administrative) is being applied to designate such functions in this Chapter. Such a function is discharged by the Administration without giving an opportunity to the concerned party to have his say against the proposed action affecting him. May be, in some situations, one or two elements of the hearing procedure may be present, but the function may still be regarded basically as administrative and not adjudicatory in nature and thus free from the over-all constraints of the hearing procedure. It may however be noted that in

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some fact situations, the courts have applied the rule against bias in case of exercise of some administrative functions, as for example, selection of candidates for appointment to public posts.51 It may be emphasized that the test being set up here to identify an administrative function is that of non-applicability of the audi alteram partem rule, but not necessarily the exclusion of the rule against bias. There was, of course, a time when characterising a function as administrative would mean exclusion of both these components of natural justice. But since then, judicial attitude has undergone a change; the doctrine of fairness has taken a firm root and, thus, the rule against bias may still be applied even though the audi alteram rule may not be applicable. The reason is that if the rule against bias is not invoked then patently partisan administrative decisions may go unchallenged in a court.52 To illustrate the point, reference may be made to Mahabir Jute Mills v. Shibban Lal Saxena .53 Under Section 4K of the U.P. Industrial Disputes Act, the State Government has a wide discretion to refer or not to refer a labour dispute to the labour court for adjudication. In the instant case, the mill in question dismissed a large number of workers. The matter went first to the conciliation board, but no settlement could be reached there. The members of the conciliation board made reports to the government. The chairman of the board sent a separate secret report to the government. After considering the reports, the government refused to make a reference of the dispute to the labour court saying that it was not (expedient) to do so. A writ petition was then moved in the High Court to challenge the government order. The High Court quashed the government order because it had taken into consideration the secret report of the chairman of the conciliation board, and it directed the government to consider the matter afresh ignoring this report. The matter then came to the Supreme Court by way of appeal. The Supreme Court ruled that the government's order was purely an administrative one and that there was nothing wrong in the chairman, conciliation board, making a secret report to the government. The procedure of the conciliation board does not involve (any adjudicatory process),but is purely of an exploratory nature. What the board has to do is to make an effort to bring about an amicable settlement between the management and the workers. In its procedure, the board does observe natural justice and hears the parties and considers their points of view. When the board fails, it has to send a detailed report to the government. There is no statutory provision which enjoins that the report submitted by the chairman or a member should be shown to one another. All that was required of the members of the board was to send their reports to the government. There was no infraction of natural justice in members not showing their reports to one another. The Court stated in this connection: "The principles of natural justice are no doubt very essential but they have got their own limits and cannot be stretched too far." In the circumstances, consideration by the government of the secret report did not vitiate its order. It is clear that if reference power were regarded as a quasi-judicial power, the government could not have considered any secret material behind the back of the parties involved in the dispute.54 The government could do so in the instant case because it was exercising an administrative power. Although in recent years the courts have expanded the use of the hearing procedure, nevertheless, the range of functions and powers of the Administration where this procedure is not applicable still remains quite large, and these affect the individual vitally. These functions and powers of the Administration constitute the subject-matter of this Chapter. The Supreme Court in Neelima55 has explained the position thus: "An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. When there is no such obligation, the decision is called (purely administrative) and there is no third category."

Questions continue to arise whether natural justice or fairness is applicable to a specific action of the Administration or not. For example, such a question recently arose before the Supreme Court in Neelima56 in the following context. S. 31(8)(a) of the U.P. State Universities Act, 1973, provides that when a difference of opinion arises between the selection committee and the Executive Council of a University in the matter of appointment of a teacher, the matter is to be referred to the Chancellor for his decision and his decision shall be final. The Allahabad High Court held the Chancellor's power as quasi-judicial,57 but the Supreme Court has now characterised it as (purely administrative) in the sense that the Chancellor is not obligated to hear the concerned candidates for the post in question, or the Executive Council of the University, before reaching his decision. The Court has reached this decision keeping in view the following considerations. What is

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referred to the Chancellor under S. 31(8)(a) is not a dispute between the selection committee and the Executive Council on any issue, nor a dispute between two rival candidates, but the recommendation of the selection committee and the opinion of the Executive Council. After considering all the materials, the Chancellor takes a decision as to who is to be appointed to the post in question. "Such a decision appears to be of an administrative character much the same way as the decision of the Executive Council with regard to appointment." The Chancellor takes a decision on the basis of the available record without receiving any further evidence or representation from any one. The decision of the Chancellor becomes final and binding. Though (finality) is generally regarded as a characteristic feature of judicial power, yet power to make binding and conclusive orders is not by itself a decisive factor to hold the power as judicial. An order made by a statutory authority even if it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present. A member of the Border Security Force was dismissed after observing due process of law. Aggrieved by the order, the respondent filed a petition under S. 117(2) of the Border Security Force Act, 1968, to the Director General, B.S.F. After going through the petition as well as other records of the case, the D.G. rejected the petition as being devoid of any merit. The respondent thereafter filed a writ petition challenging the D.G.'s decision on the ground of violation of the principles of natural justice as he had not been heard before disposal of the petition by the D.G. Rejecting the respondent's contention, the Supreme Court ruled in Union of India v. Amrik Singh 58 that the disposal of the petition filed under S. 117(2), B.S.F. Act, did not attract the principles of natural justice. The Court observed: "The respondent has been tried by observing the due process of law and the verdict of the Security Force Court was confirmed and it is only a post-confirmation petition that was filed under S. 117(2) of the Act and the authority which disposed of the same is not a court and every order passed administratively cannot be subjected to the rigours of principles of natural justice."

As has already been emphasized,59 it is quite difficult and, at times, even an artificial, exercise to label an action of the Administration as legislative, adjudicatory or quasi-judicial or administrative. The difficulty in distinguishing quasi-judicial from administrative acts has led the courts to lean increasingly on the concept of fairness rather than natural justice, so that more and more functions of the Administration may be subjected to the requirement of the right to be heard of the person affected. While the sphere of purely administrative powers may be shrinking gradually as the concept of fairness is expanding, still there exists a reservoir of powers of the Administration where the fairness principle does not apply. It is not possible to frame an exhaustive definition of administrative functions because of their variety and diversity. However, those residuary functions of the Administration which are not characterised as legislative, and where there is no requirement to follow either natural justice or fairness are being taken note of in this Chapter under the heading of Administrative powers.60 Where the courts do not want to apply natural justice, or some important principle thereof, they characterise the function as administrative. The term administrative is inexact but, unfortunately, so many other concepts are imprecise, and the present-day Administrative Law suffers from terminological inexactitude.61 However, in Style (Dress Land) v. Union Territory of Chandigarh ,62 the Supreme Court has held that even the administrative orders and not only quasi-judicial, are required to be made in a manner in consonance with the rules of natural justice, when they affect the rights of the citizens to the property or the attributes of the property. Grant of consent or sanction for the prosecution of an accused govt. servant envisages the application of mind, hence it is quasi-judicial function, whereas the passing of order, individual or general, or conferment of authority individually or generally, or empowering a person for the purposes of filing a complaint, is only an administrative action, facilitating in identifying the complainant before the Court for the purposes of filing and prosecuting the case.63 When two specific and independent powers have been conferred upon the authorities, both the powers can be exercised simultaneously.64 Whenever an executive action is declared as being violative of the provisions of Part III of the Constitution, it will be permissible for the Executive to remove the defect pointed out by the Court, even retrospectively and the previous action can also be validated.65 The High Courts are vested with the disciplinary control as well as administrative control over the Members of the Judicial Service exclusively; but that does not mean that they can also pass orders of dismissal, removal and reduction in rank or termination from service while exercising administrative and disciplinary control over them. Undoubtedly, the High Courts alone are entitled to initiate, to hold inquiry

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and to take a decision in respect of dismissal, reduction in rank or termination from service but the formal order to give effect to such a decision has to be passed by the State Governor on the recommendation of the High Court which is binding on the State Govt./Governor.66 Once appointed an employee has no vested right regarding the terms of his service which are not determined by the consent of the employees but by statute or statutory rules which may be framed and altered unilaterally by the Government. The Govt. can prescribe appropriate qualifications in the matter of appointment or promotion to different posts.67 It is fundamental to the legitimacy of public decision-making that official decisions should not be infected with motives such as fraud (or dishonesty) malice or personal self-interest. Duty to act in good faith is inherent in the process.68 There cannot be a cause of action on the basis of an "attempt at fraud" which did not materialise.69 The executive power of the State extends to all matters with respect to which the State Legislature has power to make law and in absence of any law, the said field can be covered by an executive action, here making of policies.70 3. EXTENT OF EXECUTIVE POWER OF GOVERNMENT OF INDIA The executive power of the Central Govt. extends to the same subjects and to the same extent as that of Parliament, as long as it does not infringe any provision of any law made by Parliament or of the Constitution.71 4. ADMINISTRATIVE v. ADJUDICATORY ORDERS There are significant differences between administrative and adjudicatory orders, viz.: (1)

(2)

There is no requirement of giving the affected party an opportunity of being heard if the nature of the function being discharged by the Administration is regarded as administrative. The means which the administrator takes to inform himself before taking a decision are left to his discretion. On the other hand, if the function is of an adjudicatory nature, the concerned party has to be given a hearing before making the order. This point has already been discussed above.72 The Administration has far more flexibility in exercising its administrative powers than adjudicatory powers. When a decision is made in an adjudicative capacity on merits of the controversy after hearing the concerned parties, the principle of res judicata becomes applicable and the decision becomes binding not only on the concerned parties but even on the decision-making authority itself which cannot then review, change or modify the same unless it is authorised to do so by law. The decision can be reviewed by the appellate authority if provision for revision or for an appeal from the decision-making authority is made by law. An adjudicative power is to be exercised once in a fact-situation for it is of the essence of the judicial power that disputes between the concerned parties be settled finally.73 However, it is not so with respect to an administrative order. The principle of res judicata does not apply to administrative decisions. There is no finality and the concerned authority making such an order is entitled to change or review the same later after reconsidering the matter. Thus, if a licensing officer refuses to issue a license to an applicant, the authority may later decide to issue the license after reconsidering the matter.74 For instance, in Western India Match Co. v. Its Workers ,75 the State Government first refused to refer, but after sometime referred, an industrial dispute to a labour tribunal for adjudication. The Supreme Court ruled that the relevant statutory provision, viz., S. 10(1) of the Industrial Disputes Act, 1947, confers only an administrative power on the government, presumably, because the government does not go into the merits of the dispute but only has power to refer it for adjudication so that the employer-employee relations may not remain disturbed and the dispute may be resolved through a judicial process as speedily as possible.76 Therefore, in the light of the nature of the government's function, and the object for which the power is conferred on it, it could not be held that once the government refuses to refer a dispute it cannot reconsider the matter and change its mind and refer the matter for adjudication either because new facts have come to light, or because it had misunderstood the existing facts, or for any other relevant reason. The function

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of the government being administrative, the principle of res judicata77 applicable to judicial acts cannot be applied when the government first refuses to refer but later changes its mind. The Court has again ruled in A.S. Production Agencies v. Industrial Tribunal 78 that even if the government rejects the request once to make a reference of a dispute to the tribunal, and it does so later on, the reference does not thereby become bad. The government is not reviewing any judicial or quasi-judicial order or determination; it can subsequently refer the dispute in the interest of industrial peace. "It is not absolutely necessary that there ought to be some fresh material before the government for reconsideration of its earlier decision... (When the Government declines to make a reference the source of power is neither dried up nor exhausted."79 The existence or apprehension of the labour dispute enables the government to exercise power under S. 10(1) of the I.D. Act, 1947. Similarly, the Supreme Court ruled in R.R. Verma v. Union of India ,80 that when the government exercises quasi-judicial powers vested in it by a statute, the principle is that the power to review must be conferred by a statute either specifically or by necessary implication. But this principle is not applied to a purely administrative order and no statutory authority is needed to enable it to do so. "To extend the principle to pure administrative decisions would indeed lead to untoward and startling results". The government should remain free to alter its policies or decisions in administrative matters from time to time so that it can carry on its day to day administrative functions effectively.81 S. 20 of the Karnataka Cinemas (Regulation) Act, 1964, empowered the State Government to exempt "any place where a cinematograph exhibition is given" from any provisions of the Act. The State Government rejected an application from the petitioners seeking exemption of a cinema site. The question was whether the petitioners could make another application for exemption and could the government consider the same? The High Court ruled in the affirmative saying that no res judicata rule applied in the situation. Bangalore being a fast growing city, circumstances change every now and then. The Government has to exercise its power to keep in tune with the development of the city so that public interest may be served better. The government can reconsider the application for exemption on its merits without being bound by its earlier order.82 The government can issue or re-issue administrative directions from time to time.83 In Satyanandam,84 the government refused to release the premises in favour of the landlady under S. 13 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. Later, the landlady made another representation stating certain additional and fresh circumstances. The government taking into account the subsequent events reconsidered the matter and passed an order releasing the premises in her favour. Rejecting the contention that the government had no power to review its previous order, the Court observed: "We are unable to accept the contention that the Government cannot review its own order. It is well-settled law of this Court that in case of bona fide need subsequent events must be taken into account if they are relevant on the question of release or possession of the premises in question.... We do not see how to take cognizance of such subsequent events releasing the premises can be described an order in nullity in the facts of this case."

Reference may also be made in this connection to S. Section 21, General Clauses Act, according to which a statutory power to make an order includes "a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind" any orders so issued.85 This provision clarifies that an administrative power to make an order includes power to modify the same. In Bool Chand,86 the relevant statute conferred the power to appoint the Vice-Chancellor of the Kurukshetra University on the State Government. The term of the Vice-Chancellor was fixed at three years. The Act gave no power to determine the tenure of the Vice-Chancellor before the expiry of the three year term. Nevertheless, the Supreme Court ruled that the absence of a specific provision for determining the Vice-Chancellor's tenure could not lead to the inference that his tenure of office could not be determined at all. The Court ruled that it was "unable to hold that a person appointed a Vice-Chancellor is entitled to continue in office for the full period of his appointment even if it turns out that he is physically decrepit, mentally infirm, or grossly immoral".

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Under S. 15 of the relevant Act, in a development area, any development of land could be undertaken only after obtaining the permission from the Vice-Chairman of the development authority. In State of Uttar Pradesh v. Maharaja Dharmander Prasad Singh ,87 the question arose whether the permission once granted could be revoked in the absence of any provision to that effect in the Act. The government claimed that the power of revocation was an inherent power as well as it could be claimed under S. Section 21 of the General Clauses Act in the absence of any express grant of the same at least in three situations: (1) if the permission had been obtained by misrepresentation or fraud on the part of the grantee; (2) if after obtaining the permission there has been violation of the terms and conditions of the grant by the grantee; (3) if the officers and authorities of the development authority concerned with the grant of the permission had betrayed the trust reposed in them by statute and proved disloyal to the authority. On behalf of the permit-holder it was argued that the Vice-Chairman had no authority in law to cancel the permission. The Supreme Court ruled that the power to grant permission under S. 15 was not a quasi-judicial power which "in the absence of express provisions could not enable the review of a judicial order after the exercise on the principle of functus officio".88 It was clearly erroneous to say that "the Vice-Chairman, acting as the statutory authority dispensing permissions for development under the Act, cannot revoke or cancel a permission once granted." The Court observed further: "The power to regulate with the obligations and functions that go with and are incidental to it, are not spent or exhausted with the grant of permission. The power of regulation which stretches beyond the mere grant of permission, takes within its sweep the power, in appropriate cases, to revoke or cancel the permission as incidental or supplemental to the power to grant. Otherwise the plenitude of the power to regulate would be whittled down or even frustrated."

Referring to the first two grounds advanced by the State Government for cancellation of permission, the Court stated: "In these two areas, the power to grant must be held to include the power to revoke or cancel the permit, even in the absence of any other express statutory provisions in that behalf." As to the third ground, thecourt said, in such a case, "the grant may be voidable at the instance of the Development Authority or otherwise entitling the Development Authority to initiate appropriate declaratory or other action to get rid of the effect of the permission."1 While it is established that an administrative order can be reviewed, revised or changed after it has been made even when no such power is specifically conferred on the concerned authority, a caveat needs to be added here in this regard. If an order unfavourable to the concerned person is cancelled and a favourable order made, then there may be no difficulty. But if an order favourable to him is reversed or modified to his disadvantage or cancelled, then it may become necessary for the concerned authority to comply with the principles of natural justice,2 and the grounds for the change must be such as would justify such drastic action.3 Also, in some cases, there may arise equitable considerations of promissory estoppel.4 And, in some specific situation, the court may even deny the power to cancel, withdraw or modify the order on legal or equitable principles, as, for instance, when the interests of third parties may have come into existence on the basis of the earlier order. As the Supreme Court has emphasized in R.R. Verma v. Union of India ,5 if an administrative decision is reviewed, the decision taken after the review remains subject to judicial review on all the grounds on which an administrative decision may be questioned in a court. Thus, in State of Kerala v. K.G. Madhavan Pillai ,6 the government first accorded sanction to the respondent to open a new school but later cancelled the same by exercising power under the General Clauses Act. The Supreme Court ruled that the general power of rescindment under the General Clauses Act has to be determined in the light of the "subject-matter, context and the effect of the relevant provisions of the statute." In the instant case, the Court ruled that the permission could not be cancelled without observing natural justice.7 As has already been stated earlier,8 an order referring a labour dispute to a labour tribunal for adjudication cannot be rescinded later so as to make the proceedings before the tribunal wholly ineffective.9 Under the Land Acquisition Act, an order of acquisition issued under S. 6cannot be cancelled under S. Section 21, General Clauses Act, after the acquired land has statutorily vested in the Government10. (3) While in the case of an adjudicatory order, it is incumbent on the authority concerned to give reasons for its decision,11 there exists no such obligation on the authority taking an administrative action.12 An administrative order is not invalidated on account of absence of reasons. Thus, a government order referring a labour dispute for adjudication to a labour tribunal, need not be a speaking order.13 It may be desirable, but

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not legally essential, for an administrative order to be a reasoned one. An administrative order need not give reasons for making it unless the relevant statute under which it is being made specifically enjoins that reasons be given. The reason underlying this judicial stance is that the present-day government has to work through innumerable agencies covering a wide functional area and if reasons were to be given for each and every administrative order issued by each and every agency, then the administrative machinery may come to a stand-still.14 In Vijay Kumar,15 the Government confirmed the preventive detention order for the maximum period of one year as permitted under COFEPOSA.16 The Court refused to quash the order on the ground that the reasons had not been given in the order. There was no statutory provision requiring giving of reasons for fixing a shorter or longer period of detention. The government has power to revoke the order any time. Similarly, it has been held that a selection committee is not required to give reasons, in the absence of a statutory obligation to do so, for not including the name of an officer in the promotion list,17 or for selecting or not selecting a candidate for a post.18 Howsoever beneficial it may be to give reasons for administrative decisions, Administrative Law has not yet advanced to such a stage as to insist on giving of reasons for every administrative decision in the absence of a statutory obligation to do so. However, the Administration runs some risk by not giving reasons for its decision when the matter comes for review before the court. This matter is discussed later.19 But, then, a statute may require reasons to be given for taking an administrative action. In such a case, it usually becomes obligatory on the part of the Administration to give reasons for its action, as the judicial tendency is to regard such a provision as mandatory rather than as directory.20 Under the Indian Forests Service (Initial Recruitment) Regulations, 1966, the selection board was required to give reasons for not selecting an eligible officer of the State Forest Service to the Indian Forest Service before sending the case to the Union Public Service Commission for advice. The Supreme Court ruled that the requirement of giving reasons was mandatory as the provision was made in public interest with a view to avoid arbitrary or capricious exercise of power by the selection board. Also, it would help the UPSC in giving its advice as it would know the views of the selection board as to why a particular candidate has been excluded by it.21 (4) As will be seen later, the norms of judicial review vary to some extent according as the order being reviewed by the court is regarded as adjudicatory or administrative in nature. The grounds, depth, form and content of judicial review vary from administrative to adjudicatory functions.22 It is true that mere presence of one or two attributes of quasi-judicial authority would not make an administrative act as a quasi-judicial act. In some cases, an administrative authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be a quasi-judicial act. It is a different thing that in some cases, fair play may demand affording of an opportunity to the claimant whose right is going to be affected by the act of the administrative authority, still such an administrative authority would not be a quasi-judicial authority. What distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority.23 Another test which distinguishes administrative function from quasi-judicial function is, the authority who acts quasi-judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency.24 The designation of an act as quasi-judicial or purely executive depends on facts and circumstances of each case.25 The power of any authority to summon witnesses, enforce their attendance, examine them on oath or require discovery and production of documents, shows the quasi-judicial nature of the proceedings before the said authority.26 The decision to drop any proceedings would be quasi-judicial, open to appeal and the mere fact of appointment of the competent authority to carry out the provisions of the Act would not make it an administrative authority. Executive authorities, when empowered under a statute, exercise quasi-judicial powers and orders passed as such would be a quasi-judicial order and not an executive order.27 In S.B.P. & Co. v. Patel Engineering Ltd ,28 the Apex Court observed that once a statute creates an authority, confers on it power to adjudicate and makes its decision final on matters to be decided by it, normally the decision cannot be said to be a purely administrative decision. (para 9) An administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of the parties or confers or

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refuses to confer rights to property which are the subject of adjudication before the Court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of that authority, particularly, if the authority were a Court, and, if the discretion has to be exercised on objective, as distinguished from a purely subjective consideration, it would be a judicial decision (para 35) Any order passed in judicial proceeding (mush less an order passed by the Supreme Court) can by no stretch imagination be described as one of "administrative nature".29 Premature termination of lease under Section 4-A of the Mines and Minerals (Regulation and Development) Act, 1957, after giving a hearing to the lessee is an executive act and not a legislative act.30 Fixation of pay scales is essentially of a function of the executive31 and so is price fixation.32 Merger or division of cadres is an executive act within the administrative sphere of the Government and the Court should not interfere.33 Policy decision to allot land to newspaper concerns and educational institutions is an executive act and not a commercial transaction.34 The action35 of grant of parole is generally speaking an administrative action and so is the grant of sanction for prosecution.36 The Government order regarding remission of sentence is an administrative order.37 The nature of the function of appointing an arbitrator performed by the Chief Justice under Section 11(6) of the Arbitration and Conciliation Act, 1996, being essentially to aid the Constitution of the Arbitral Tribunal immediately and the legislature having consciously chosen to confer the power on the Chief Justice and not a Court, it is apparent that the order passed by the Chief Justice or his nominee is an administrative order.38 An administrative order can be recalled and a mistake can be rectified.39 On appeal against the decision of the Administrative Tribunal, its decision gests merged with the decision of the appellate Court.40 Correspondence exchanged between the State Govt. and the Chairman of the Ludhiana Improvement Trust cannot be treated as an administrative decision taken by the Trust, here decision taken to allot five plots to a party whose land was acquired. Under the Rules the Chairman could sell plots subject to confirmation of the Trust, which, in the instant case, had taken no decision.41 In Chief Marketing (Marketing Division), Coal India Ltd. v. Mewat Chemicals & Tiny SSI Coal Pulverising Unit ,42, the Apex Court held that in allotment of quota in collieries, the legal position on the date of decision is to be taken into account and not that prevailing on the date of application. 5. SOME EXAMPLES OF ADMINISTRATIVE POWERS There exist numerous administrative powers of various types. The range and scope of such powers is vast. These powers range from such simple matters as registration of births and deaths to regulation of a business activity, acquiring property for a public purpose, and detaining a person on the subjective satisfaction of the executive. There exist a miscellany of administrative powers e.g., grant of licences, grant of permissions, registration, inspection, investigation, ordering inquiries, undertaking searches, seeking information, seizing property, even destroying property of an individual without hearing him in the interest of public health, safety and morality. Some idea of the vastness of the range and scope of administrative powers is given below, but this is only illustrative, by no means exhaustive. The catena of administrative powers is too numerous to be fully mentioned here. In broad terms, administrative powers of the Administration fall into the following categories: (1) Non-statutory powers e.g. evolving and implementing of policies; (2) Statutory powers, e.g. execution of laws; applying vague standards laid down in statutes or delegated legislation from case to case. (a) Non-Statutory Powers The extent and scope of the general administrative power of a modern government cannot be defined precisely. The power is amorphous, unstructured, broad and undefined. A government can carry on general administration so long as it does not infringe a constitutional or legal provision or does not infringe any legal right of any person. Formulation of policy and its implementation is pre-eminently a function of the Executive,43 and the task of the Executive is facilitated by the Parliamentary system of government which operates both at the Centre

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and the States in India. An essential characteristic of such a system is the close collaboration between the Executive and the Legislative organs because the Executive depends for its existence on the majority support in the Legislature.44 This principle has been enshrined in the Constitution of India in the proposition that the Council of Ministers shall be collectively responsible to the Lower House of the Legislature.45 The Executive thus has majority support in the House. The Executive organ can therefore count on the automatic support of the Legislature in its policy-making and administrative efforts. An important point to note with respect to the functioning of the administrative organ is that it does not always need a statutory authorisation to act and execute a policy. Many a time, the Administration can implement policies without any statutory sanction. The government is not confined to discharging only such functions as are specifically conferred on it by legislation or the Constitution. Art. 73 of the Constitution confers executive power on the Central Government which extends to all matters with respect to which Parliament has power to make laws. Similarly, under Art. 162 of the Constitution the executive power of the State Government extends to all matters with respect to which the State Legislature has power to make laws.46 Therefore, so long as the government enjoys majority support in the Legislature, it can go on implementing its policies without any specific legislative sanction. In Ram Jawaya v. State of Punjab ,47 the Supreme Court explains this point and illustrates as to how far the powers of the Executive can run without statutory authorization. The Punjab Government initiated the policy of undertaking publishing, printing and selling textbooks for use in aided schools of the State. Objection was taken to this activity of the State Government on the ground inter alia that the Government had no legislative authority or sanction to undertake the business envisaged. The argument was that the Executive could not engage in any trade or business activity without the Legislature passing any law for the purpose. The Supreme Court negatived the contention holding that as the extent of the executive power of the State Government is co-terminus with its legislative power, a State Government's executive power extends to all those matters which fall within the legislative sphere of the State and, similarly, the executive power of the Centre extends to the entire area of legislative power available to the Centre.48 Having said this, the Court next defined the nature of the executive power in these words: "It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away.... The executive Government.... can never go against the provisions of the Constitution or of any law.... but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws".49

And further: "The executive function comprises both the determination of policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State".50

The executive power is not, however, free from ultimate legislative control because of the responsibility of the Council of Ministers to the Legislature. Also, if any activity needs expenditure of money, the same must be sanctioned by the legislature as no money can be withdrawn from the Consolidated Fund without an Appropriation Act.51 Further, if the government requires certain powers in addition to what they possess under ordinary law in order to carry on a particular activity, then specific legislation is necessary. If it becomes necessary to invade or encroach upon a person's rights in order to enable the government to carry on the activity in question, then a specific legislation sanctioning such a course would be needed. In Ram Jawaya, the Court held that the Government required no additional power to carry on the business as whatever was necessary for the purpose, it could secure by entering into contracts with authors and other people. No legal right of the petitioners, much less a fundamental right, was being invaded by the government action as they could continue to carry on the business of publishing and selling books without any restriction. The petitioners had no legal right to have their books prescribed as textbooks in schools.

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This proposition was reiterated by the Court in Naraindas Indurkhya v. State of Madhya Pradesh .52 The Supreme Court ruled that the absence of a statutory provision does not mean that the State Government could not prescribe textbooks for school classes in exercise of its administrative power under Art. 162, provided that in doing so it did not trench upon the rights of any person. These cases establish the proposition that the executive power of a modern state is not capable of any precise definition. The scope of the executive power is residuary, that is to say, "functions which do not fall strictly within the field legislative or judicial, fall in the residuary class and must be regarded as executive."53 The government in exercise of its executive power is charged generally with the duty and responsibility of carrying on the general administration of the country. The administrative power is conterminous with the government's legislative power. Therefore, the government can take administrative action without a specific statutory sanction over the entire area falling within the legislative competence of the concerned legislature, if it does not infringe a legal or a fundamental right of any person and does not infringe a constitutional or legal provision. A mere administrative order without any legal backing is not judicially enforceable against any person.54 In the case-law, one can find quite a few examples of government policies being implemented without any statutory provisions.55 It may also be pointed out that under certain fundamental rights, e.g. Arts. 19, 21, only legislative and not merely administrative action is envisaged.56 The Government can undertake inter alia the following activities administratively without the need of having any specific statutory power for the purpose: (1) (2) (3) (4) (5)

(6) (7) (8) (9) (10)

Engage in a trading undertaking.57 The over-all power for this purpose is to be found in Art. 298 of the Indian Constitution.58 Enter into a contract with any person59 accept or reject a tender,60 and dispose of public property.61 Conferring benefits on any person.62 Enter into treaties with foreign countries.63 But, may be, at times, legislation may become necessary to implement the terms of a treaty. Create posts and make appointments thereto,64 promote government employees from lower to higher administrative posts,65 and fix their seniority,66 grades and emoluments;67 create a cadre or merge one cadre with another,(10)68 or lay down service conditions for its employees.69 Transfer government employees from one place to another.70 Establish fair price shops.71 Issue directions and instructions.72 Appoint an ad hoc enquiry officer or committee to enquire into some matter,73 or an enquiry commission to enquire into a matter of public importance. Suspend a student pending enquiry against him for breach of discipline.74

To illustrate further the scope of non-statutory administrative powers, a few more examples may be given here. The Orissa Government constituted by its resolution the Sanskrit Council to hold examinations and publish results.75 The Orissa Government appointed an enquiry officer, in its executive capacity, to enquire confidentially into allegations against the ex-Chief Minister preliminary to deciding whether a formal inquiry under the Commissions of inquiry Act ought to be ordered or not. The High Court ruled that the inquiry officer was to act in an administrative capacity for he was only to report to the government whether or not there was any prima facie case for ordering a further inquiry by a commission of inquiry.76 His function was merely to examine the available materials to see if a prima facie case was made out to appoint such a commission which, if appointed, would go through into all the allegations by following the principles of natural justice.77 In UK, the Government installed a scheme to make ex gratia payments to the victims of criminal offences out of the moneys voted by Parliament. The Criminal Injuries Compensation Board has been appointed administratively to implement the scheme. The Board has no statutory basis; its awards have no legal backing; they cannot be enforced by law and they are, in truth, part and parcel of an administrative system and none has a right to payment of compensation.78 No statutory power is needed for the government to terminate a contract according to its terms. A major question which normally arises in such a situation however is whether the action complained of is or is not in

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consonance with the terms of the agreement.79 The Government can create administrative bodies through its administrative power, and can assign to these bodies various functions to discharge. These bodies can act subject to the condition that they cannot infringe any person's legal rights. Planning Commission is an outstanding example of a body created by the Government of India under its administrative power. The Commission is an advisory body with no administrative functions to discharge. Nevertheless, it deeply influences the planning process in the country. As will be seen later,80 equities may arise in favour of an affected person even when the government acts only administratively and without any statutory sanction. (b) Statutory Administrative Powers By far the largest and the most significant slice of the functional area of the Administration in modern times emanates from statutory powers. In most cases, private rights of person, property or business are affected by the implementation of proposed policies formulated by the Executive, and so it becomes inevitable to seek the necessary statutory powers for the purpose of executing and effectuating these policies. It is a firm principle of Administrative Law that an administrative action which operates to prejudicially affect the legal rights or a fundamental right of any person, e.g., personal liberty, must have the authority of law to support the same.81 Thus, a restriction requiring a person to reside in a specified place cannot be imposed merely by an executive order without the backing of the law.82 Similarly, right to property of a person cannot be affected adversely merely by administrative action without the backing of a statutory power for the purpose.83 An authority cannot discharge a legislative84 or adjudicatory85 function without the authority of law; it can so act purely in an administrative manner.86 It cannot impose a tax or spend money from the Consolidated Fund without the authority of law. The Supreme Court has laid down the following principle in Naraindas:87 "If the executive action taken by the State Government encroaches on any private rights, it would have to be supported by legislative authority, for under the rule of law which prevails in our country every executive action which operates to the prejudice of any person must have the authority of law to support it."

Formerly passports were issued and refused by the Government of India in exercise of its administrative power. There was no law on the subject. Then, the Supreme Court raised objection to such a procedure in Satwant Singh v. A.P.O. 88 The Court concluded that an Indian passport was factually a necessary condition for travel abroad and without it no Indian could travel outside India. The Court read Art. 21 of the Constitution89 as guaranteeing the right to travel abroad to the Indians. This meant that "no person can be deprived of his right to travel except according to procedure established by law." The Court also ruled that an unfettered discretionary power to issue a passport or not to any one is discriminatory under Art. 14.90 "While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it.91 Thus, enactment of a law to regulate issue, withdrawal and cancellation of passports became necessary. As a result of this judicial pronouncement, the Indian Parliament enacted the Passport Act, 1967.92 Removal of a student from an educational institution purely on academic grounds has been held to be an administrative matter.93 There exist a whole catena of administrative powers conferred by the statutes--too numerous to be mentioned here. A few sample provisions conferring powers of an administrative nature may be noted here for illustrative purposes. Let us first take a provision concerning discipline over the government servants. A person can be suspended from his post without observing natural justice and it is thus an administrative power.1 The government has power to dismiss, remove or reduce in rank a government servant but such a power is exercisable after giving a hearing to the concerned person. This, therefore, may be regarded as adjudicatory power.2 On the other hand, Rule 16(3) of the All India Services (Death-cum-Retirement)Rules, 1958, empowers the Central Government to compulsorily retire a government servant in public interest who

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has put in certain years of service after giving him three months' notice. The provision confers a very wide discretion on the government to retire any of its employees without giving him a hearing, if this is being done in public interest and not as a punishment, and so this may be regarded as an administrative power.3 But when an order of compulsory retirement is being used as a camouflage for dismissal, then the court will insist that the concerned person be given a hearing. Thus, an order of compulsory retirement passed against a civil servant on the ground of causing financial loss to the government was quashed by the Supreme Court as the order was really passed because of the employee's misconduct and the power to retire compulsorily was being used to avoid giving a hearing to the concerned employee.4 The power to make appointments may be conferred on the government by statutes. By and large, this is regarded as administrative power.5 Under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, provision is made for selection of state service personnel for promotion to the Indian Administrative Service (IAS). The Supreme Court has ruled in R.S. Dass v. Union of India 6 that there is no scope for applying the principles of natural justice in matters relating to selection of suitable members of the state service for promotion to a higher service. The Court has reasoned:7 "No vested legal right of a member of the State Civil Service who after being considered is not included in the select list, is adversely affected. Non-inclusion in select list does not take away any right of a member of the State Civil Service that may have accrued to him as a government servant, therefore no opportunity is necessary to be afforded to him for making representation against the proposed supersession."

The proposition has been reiterated by the Court in U.P.S.C. v. Hiranyalal Dev .8 Next, reference may be made to some statutory provisions concerning private property. Under S. 29(1) of the Defence of India Act, 1962, power was conferred on the Central Government or the State Government to requisition any immovable property if, in its opinion, it was necessary or expedient to do so for securing the defence of India, etc. The High Court ruled that the power was of an administrative nature, and, therefore, it was not necessary to observe the principles of natural justice before passing an order under S. 29(1). Being an emergency power, giving an opportunity of being heard to the affected party might defeat the very purpose in view.9 The Requisitioning and Acquisition of Immovable Property Act, 1952, authorises the Central Government to requisition private immovable property for "purposes of the Union" and this term is not deemed in the Act and so the Central Government has a large discretionary power to requisition private property for any purpose deemed necessary by it. Along with it, there is the Land Acquisition Act, 1894, which also confers extensive discretionary powers on Central as well as State governments to acquire private property. Under S. 4, a preliminary notification is to be issued to the effect that land in any locality is needed or is likely to be needed for any public purpose. S. 5-A provides for filing of objections by any person interested in the land and hearing of these objections by the collector. This inquiry has been held to be an administrative inquiry.10 Thereafter, the collector submits his report to the government for appropriate action. Under S. 6 when the appropriate government is satisfied, after considering the collector's report, that any particular land is needed for public purpose or for a company, a declaration is made to that effect. The said declaration is conclusive evidence that the land is needed for public purpose, or for a company, as the case may be. The term "public purpose" is nowhere defined in the Act. As the declaration by the government is conclusive as to the public purpose, courts are debarred from probing into that aspect of the matter and, in effect, the power of the government becomes practically uncontrolled as to what land to acquire and for what purpose to acquire. The government also has power in certain situations to dispense with the procedure of filing and hearing of objections and take land straightaway without much of a formality. For the purpose of compensation, the market value of the land taken is to be determined in the first instance by the collector, but thereafter this matter can be taken to a court.11 This therefore is a quasi-judicial matter. After issuing a notification under S. Section 6, Land Acquisition Act, expressing its desire to acquire some private property, the government can, under S. 48, withdraw from the acquisition and release the property at any time before taking possession thereof. The government can exercise this power unilaterally; there is no requirement that the owner of the land in question should be given an opportunity of being heard before the

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government passes the order. Nor is the government required to give cogent reasons for its decision not to go ahead with its proposal to acquire the piece of land in question.12 We may take a few statutory provisions regulating personal freedom. S. 4(6) of the East Punjab Safety Act, 1949, authorised the district magistrate to extern a person from the district for a period of three months "if satisfied" that it was necessary to do so to prevent him from acting in a manner prejudicial to the public safety or maintenance of public order. Thus, the executive had under this provision an authority to make an order externing a person from a particular area in its subjective satisfaction.13 Issuance of orders of preventive detention under relevant laws is regarded as an administrative matter. According to S. Section 3 of the National Security Act, 1980 the Central Government or the State Government could, "if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to--(i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or maintenance of public order, or (iii) the maintenance of the supplies and services essential to the community... it is necessary so to do, make an order directing that such person be detained."14 We may now turn our attention to a few statutory provisions concerning regulation of trade and commerce--an ever expanding area in modern times. S. 10(1) of the Industrial Disputes Act, 1947, empowers the government--Central as well as State--to refer an industrial dispute to a labour tribunal for adjudication. This has been characterised as an administrative power.15 In Shambu Nath v. Bank of Baroda ,16 the Court reiterated the proposition that in making a reference under S. 10(1), the Government performs an administrative act, and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. Broad powers of regulation of industry are conferred on the Central Government under the Industries (Development and Regulation) Act, 1951. Thus inter alia no one can set up an industrial undertaking in the controlled sector except under a licence issued by the Central Government; a licence is needed for substantial expansion in the capacity of an existing undertaking; and whether or not there has been a substantial expansion or not, the decision of the Central Government is final on this question. A licence is also required if an industrial undertaking wishes to change its location from one place to another. Under certain circumstances, the Central Government can order an investigation to be made into the affairs of an industrial undertaking. Whether circumstances exist warranting initiation of an investigation or not into the affairs of a company is an administrative matter which lies within the subjective satisfaction of the Central Government.17 The investigation if ordered has to be carried out in accordance with the principles of natural justice.18 After receiving the report of the investigation, if the Central Government is of the opinion that the industrial undertaking is being managed in a way detrimental to the industry or the public interest, it can take over the industrial undertaking concerned; but, before doing so, the government is bound to give a hearing to the concerned management,19 and, therefore, the power of take-over cannot now be regarded as administrative according to our formulation of the definition of an administrative power. A less drastic power is conferred on the Central Government by the Essential Commodities Act, 1955, under which, in certain circumstances, the government can appoint an authorised controller with respect to an undertaking and the controller exercises such functions of control as may be specified.20 Power to call for returns and information is administrative in nature.21 Many statutes confer on the Administration the power to conduct investigation or inquiry.22 The power to appoint an investigator or an enquiry commission to enquire into some matter of public importance is regarded as an administrative power.23 A pervasive licensing system is in vogue in India to regulate trade and commerce. By and large issuance or suspension of licences is regarded as an administrative matter, but cancellation of a licence is a quasi-judicial matter.24 Numerous statutes impose the requirement of seeking permission, sanction, consent of the Administration before a person embarks upon the regulated activity. There is no general rule characterising the nature of the power to grant these in all cases. The power may be regarded as administrative in some cases, but quasi-judicial in other cases.25 For example, under S. 197(3), CrPC, prior permission of the Lt. Governor is required to start criminal proceedings against a member of the Delhi Police Force for any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty.26 Reference

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has already been made earlier to the conflict of judicial view as regards the nature of the power of the Advocate-General under S. 92, C.P.C.27 When a statute requires permission of the Administration to do some act, it is a matter of statutory interpretation by the court whether permission is to be sought and obtained before performing the act in question, or it may be secured ex post facto. For example, S. 29(1)(b) of the Foreign Exchange Regulation Act prohibits a non-resident Indian or a company to purchase shares in an Indian company without the permission of the Reserve Bank of India. The Supreme Court has ruled in L.I.C. v. Escorts Ltd ,28 that 'permission' in this provision may mean permission, prior or subsequent to the purchase of shares by the non-resident Indian. In the Court's view, "what is necessary is that the permission of the Reserve Bank of India should be obtained at some stage for the purchase of shares by non-resident companies." Thus, permission can be given by the Reserve Bank before or ex post facto, i.e. after the purchase of shares in a company in India by a non-resident company. However, once sanction is given by the Administration, its withdrawal later will invariably be regarded as a quasi judicial act.29 A number of statutes authorise the Administration to conduct searches of premises and seize property under specified circumstances. Ordering and conducting a search and seizing of property are regarded as administrative functions.30 The following statutory powers have inter alia been held to be administrative in nature: 1. 2. 3. 4. 5. 6.

Power of the Central Government to make a declaration under S. 5(1) of the Special Courts Act, 1979.31 Wholesale cancellation of an examination at a centre because of mass copying.32 Power vested in the Regional Transport Authority by S. 47(3) of the M.V.A., 1939 to limit the number of stage carriage permits because in doing so it is not dealing with individual or competing rights of operators but arrives at its own conclusion objectively.33 Power of the government under the Criminal Law (Amendment) Act, 1961, to forfeit a book questioning the territorial integrity or frontiers of India in a manner prejudicial to the interests or safety or security of India.34 Power of the State Government under S. 99A, CrPC, to forfeit a publication promoting feelings of enmity or hatred between different classes of citizens of India.35 Power of the Executive under S. 401, CrPC, as well as under Arts. 72 and 161 of the Constitution to pardon a convict, or remit his sentence. In Kehar Singh v. Union of India ,36 the Supreme Court has specifically characterised the power vested in the President by Art. 72 as being of an "executive character" in the sense that the condemned person has no right to insist on an oral hearing before the President. He has to submit all the requisite information along with his petition. The Court has observed in this connection:37 "The manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. The President may consider sufficient the information furnished before him in the first instance or he may send for further material relevant to the issues which he considers pertinent and he may, if he considers it will assist him in treating the petition, give an oral hearing to the parties. The matter lies entirely within his discretion.".

7. 8. 9.

Power to order preventive detention of a person.38 Power to declare an association unlawful under S. 3 of the Unlawful Activities (Prevention) Act, 1967.39 Power to suspend a government servant when there are serious charges of misconduct against him.40 It may however be pointed out in this connection that suspension may be by way of punishment also, as for example, suspending a lawyer for a year from practice. In such a case, the principles of audi alteran partem will have to be complied with. No hearing need be given, however, when suspension is being resorted to not as a punishment but only as an interim measure pending a formal enquiry and decision on the charges against the person concerned.

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10.

11.

In Jan Mohd. v. State 41 the Rajasthan High Court has ruled that an elected chairman of a municipal board may be suspended by the State Government under the relevant statutory provision without being given a hearing when there are charges of misuse of power against him. He will be given a hearing when a formal enquiry is instituted into the charges against him. The Court has emphasized that suspension is an interim measure which results in no civil or evil consequences and is not penal in character. Suspension does not determine the matter finally. It only makes the concerned person refrain from discharging the functions of his office temporarily. Its sole purpose is that the person against whom serious allegations of misconduct and abuse of powers are made, may be restrained front causing further damage to the institution. A person need not be given a hearing when an investigation is conducted to determine whether there is a prima face case against him to undertake a formal inquiry. The Supreme Court has enunciated the principle of law applicable in such situations as follows:42

"It is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant."

There are statutes having provisions conferring power on the Administration to take action in the interest of public health, safety and morality, and authorise seizure and even destruction of property of an individual without providing any safeguards.43 These powers are characterised as 'police powers' of the state.44 Prompt action is the keynote of such powers. If quick action is not taken, undesirable things or materials may reach the hands of the consumers; public security and safety may be endangered, and much other harm may result. If hearing is to precede administrative action then the delay involved therein may frustrate the basic purpose underlying the law. Usually, the safeguards provided in such cases are subsequent to the taking of the administrative action. As these kinds of powers present special problems of procedural safeguards, a few illustrations of the statutory provisions may be mentioned here in detail. Since most of the matters concerning police powers are of local concern and require local regulation, the laws on the subject are generally State laws. It is not possible to examine the innumerable local enactments prevailing in this area. Therefore, only a few of the important Central statutes are mentioned here. Ordinarily, no hearing is required for demolishing a wall or building which is in imminent danger.45 Some such powers are available in connection with the transport of materials through the post. Under S. 23 of the Post Office Act, 1898, any postal article which is of explosive or dangerous nature or contains lottery material may be opened and destroyed by the postal authorities. Further, the section provides that any indecent, obscene, or grossly offensive material may be disposed of in such manner as the Central Government may by rule direct. The only safeguard against the abuse of power seems to be that under S. 52 a penalty may be imposed for misappropriating or dishonestly destroying postal articles. However, the difficulty is that once an article is destroyed it may not be possible to prove that it was an article which contravened the provisions of the Act. Another example of a provision to safeguard public safety and morals is furnished by the Young Persons (Harmful Publications) Act, 1956, under which a State Government may, after consultation with the principal law officer of the State, declare harmful publications forfeited to the government by an order notified in the official gazette. Any police officer may seize the same in any territory to which the Act applies. The safeguard provided against the misuse of power is that under S. 5, a person aggrieved by the government's order may within 60 days of the order apply to High Court for setting it aside. To prevent objectionable advertisements relating to drugs and magic remedies, the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 as amended in 1963, provides for the seizure by an authorised gazetted officer of the State Government of any document, article or thing which he had reason to believe contravenes any of the provisions of the Act. This is subject to the safeguard that the officer seizing anything is to inform the magistrate and to take his orders as to its custody from him. The material seized may be forfeited only on the order of the court after the person concerned has been convicted. To check adulteration of food, S. Section 10 of the Prevention of Food Adulteration Act, 1954 provides that if any article of food appears to a food inspector to be adulterated or misbranded, he may seize and carry away the same, or keep it in the safe custody of a vendor of such article to be dealt with in accordance with

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the statute. Similarly, any material found in the possession of manufacturer of any article of food and being apparently of a kind which may be employed for purposes of adulteration may be seized. The safeguards provided are that the food inspector shall call one or more persons to be present at the time when the action is being taken and obtain his or their signatures.46 Any inspector vexatiously and without any reasonable grounds of suspicion seizing any article of food may be punished with fine up to Rs. 500.47 Further, any food article seized by the inspector has to be produced before a magistrate as soon as possible. He may make the necessary order about the matter including the award of compensation if the food is not adulterated.48 The statute also makes provision for testing the quality of food by public analyst and the Central Food Laboratory. Again in the interest of public health, S. 22 of the Drugs Act, 1940, to prevent manufacture of sale of sub-standard or misbranded drugs, provides for the seizure of drugs by an inspector appointed under the Act. The safeguard provided in the statute is that the inspector seizing the drug shall, as soon as may be, inform a magistrate of the fact of seizure and take his orders as to the custody thereof, and further there are provisions for testing the quality of the seized drug by the government analyst and the Central Drugs Laboratory.49 To prevent the spread of a contagious disease, S. Section 374 of the Delhi Municipal Corporation Act, 1957 provides that where the destruction of any hut or shed is, in the opinion of the Commissioner, necessary, he may by notice in writing require the owner to destroy the same within the specified time. If the destruction of the hut or shed is immediately necessary he may ask the owner to destroy the same forthwith or he himself may cause it to be destroyed after giving not less than 6 hours' notice. Under the section, the Commissioner may in his discretion pay compensation to a person who sustains substantial loss by the destruction of such hut or shed. To prevent the spread of the contagious disease of glanders and fancy, the Glanders and Farcy Act, 1899 empowers inspectors to destroy the diseased horses if the veterinary practitioner certifies in writing that the horses are so diseased. To prevent vexatious seizure of animals, the Act provides that the inspectors are punishable with 6 months' imprisonment or a fine of Rs. 500 or with both,50 if found guilty of doing so. As a measure of public safety, S. Section 322 of the Delhi Municipal Corporation Act, 1957, empowers the Commissioner to remove, without notice, anything placed or deposited in any place in contravention of the Act (i.e. encroaching upon any public place), or any article hawked or exposed for sale on any public street, or any public place in contravention of the Act. Another drastic power affecting private property given to the commissioner to protect public safety is under S. 348(1) of the statute which provides that if it appears to the commissioner that any building is in a ruinous condition or likely to fall, or in any way dangerous to any person, he may, by order in writing, require the owner of occupier of such building to demolish, secure or repair such building. If the danger is imminent, he may himself, under clause (3) of the section, demolish, secure or repair the said building or take such steps as may be necessary to prevent the danger. The statute provides no safeguard against wrongful demolition of a building by the commissioner. Since the danger is imminent and there is necessity of taking action at once, it seems that this could be done without giving any notice under clause (1) of the section. Further, for the same reason no hearing may by given to the owner. In a similar situation it was stated by the Calcutta High Court that "if notice has to be given and the parties heard the very purpose of the repair or demolition would be frustrated."51 Probably an application under Art. 226 of the Constitution to the High Court is about the only remedy which the owner may have if there is an abuse of the power conferred by the provision.52 S. 144, CrPC, provides a machinery for issue of orders in urgent cases of nuisance or apprehended danger. Where in the opinion of an executive magistrate, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, he may, by a written order stating the material facts of the case direct any person to abstain from a certain act or to make certain order with respect to property in his possession or under his management. Ordinarily an order under the section is not passed without giving an opportunity to the person concerned to show cause, but it may be passed ex parte if there is not enough time to serve a notice on the concerned party. The maximum time-limit for such an order is two months. The order may be rescinded at any time. If a person requests for the rescission of the order, he must be heard by the magistrate and reasons are to be recorded by him for rejecting the application for rescission. An order under the section is open to revision by the High Court. When S. 144 was challenged under Art. 19 of the Constitution, the Supreme Court upheld its validity by emphasizing that it is "a power used in a judicial manner" and which can stand further judicial scrutiny.53 But when the question arose in

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Gulam Abbas54 whether the Supreme Court could review such an order under Art. 32,55 the Court ruled that the order is administrative in nature and not quasi-judicial. The Court pointed out that under the new Criminal Procedure Code, there is separation of judicial functions from executive functions of the Magistrates. By and large, judicial functions have been allotted to judicial magistrates and executive-administrative functions are allotted to executive magistrates. The Court emphasized that an order under S. 144 is made by an executive, and not a judicial, magistrate and is made in urgent cases of nuisance and apprehended danger to public tranquility and not to decide the rights of the rival parties. The Court explained away the hearing procedure by saying that such a procedure ensures fairness and there may be hearing even in the performance of any executive or administrative function. The Court explained away the provision for revision of an order under S. 144, CrPC by the High Court by saying that it only removes the vice of arbitrariness, if any, in S. 144. These aspects do not make an order under S. 144, CrPC, a quasi-judicial order. It is an executive order passed in the performance of an executive function where "no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made." Such an order is reviewable by the Supreme Court under Art. 32. The function under S. 144 is essentially an executive (police) function. In Municipal Committee, Karnal v. Niramala Devi ,56 the Supreme Court held it to be illegal to award damages for demolition of property by the Municipal Committee in exercise of its statutory powers. In a proceedings initiated for acquisition of property, it was held that denial of compensation by the Government on the claim of statutory vesting was improper.57 An express statutory power carries with it, by necessary implication, all powers and duties incidental and necessary to make the exercise of the powers fully effective.58 6. ADMINISTRATIVE REVIEW/REVISION A municipal corporation issued notice to a certain person to demolish the structure on his land. The Deputy Municipal Commissioner initially directed him to retain a shed which was allegedly old one of prior to a certain date but other structures were directed to be demolished. After 5 years the said order was reviewed by the Additional Commissioner resulting in issue of notice to him to demolish the shed too. The Single Judge of the High held that the exercise of the power of review should be made bona fide within a reasonable time which was set aside by the Divisional Bench holding that there was no evidence on record to show that the shed was constructed prior to the said date and hence was illegally constructed which could not be allowed to be retained. It was contended before the Supreme Court that the Additional Commissioner had no power to review the order passed by a subordinate officer, hence it was a nullity. It was held that in the circumstances of the case, the authority was rightly justified in exercising that power.59 The Central Govt., in exercise of its powers under Section 6(2) of the Food Corporation Act, 1964, to issue instructions to the Food Corporation of India regarding appointment and service conditions of the staff of the FCI, issued certain policy instructions to the FCI regarding recruitment policy and service conditions. Further, on receiving complaints about the irregularities/anomalies committed during the recruitment exercise, the Central Govt. by issuing a second directive imposed a complete ban on the recruitment process and declared the recruitment process to be treated as null and void. The Apex Court held that the wholesale go-by given to the Regulations and manner in which the recruitment process was being done, was very much reviewable as a policy directive under Section 6(2).60 A certain person and his brother were displaced persons. The latter had applied for grant of certain stretch of land which was granted to him. Thereafter, in collusion with the revenue officials, the former got his name mutated in the records and asked for another assignment which was granted by a settlement officer. Later on when it was noticed that the mutation was obtained by fraud, the same officer then as Settlement Commissioner set aside the order, which, on being challenged, was upheld by the Financial Commissioner. The High Court took the view that the Settlement Officer had no jurisdiction to sit over the same order as appellate authority as Settlement Commissioner. The Supreme Court held that the Commissioner under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 has the power to correct the same in his revisional jurisdiction treating it a suo motu review, though it was brought to his notice by way of revision by the grantee himself.61 An order passed by mistake and ignorance of the relevant facts indisputably can be reviewed, if inter alia, it is found that a fraud was practised or there was wilful suppression on the part of the party.62 A query as to the inter se seniority of two lecturers was made to the Regional Joint Director of Education who opined in favour of one of them without notice to the other party. The other lecturer/party made a representation to the RJD who considering

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the matter modified his earlier order by holding in favour of the other. It was held that his earlier order was purely an opinion and not an administrative order and hence his subsequent order did not amount to review. The earlier order, not being a quasi-judicial order passed in exercise of any statutory power, the RJD was not devoid of the power to reconsider his earlier order and revise the same.63 Where an administrative authority passed an order contrary to the policy, it was held that the authority was entitled to consider the matter afresh and put his earlier order in abeyance, pending consideration.64 In Tagin Litin v. State of Arunachal Prasad ,65 the Supreme Court held that an order could be altered or rescinded by the authority issuing it, before it was communicated to the person concerned. In Union of India v. K.M. Shankarappa ,66 the Apex Court held that once a quasi-judicial body like the Appellate Tribunal, consisting of a retired Judge of a High Court or a person qualified to be a Judge of a High Court and other experts in the field, gives its decision that decision would be final and binding so far as the executive and the Govt. is concerned and to permit the executive to review and/or revise that decision would amount to interference with the exercise of judicial functions by a quasi-judicial Board. In Bihar State Co-operative Marketing Union v. Dindyalsingh ,67 it was held that the Registrar of the co-operative marketing could not exercise the power of revision to interfere with his own administrative order passed as an appellate authority. However as a principle of law, there is no legal bar or prohibition against an administrative body in seeking to review its earlier decision provided the parties likely to be affected by such a decision are afforded an opportunity of hearing, which was done in the instant case.68 Merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by previous Government.69 Cancellation of an order, issued without authority under the statute or the rules, does not amount to review. It was held to be only a correction of a patent mistake.70 In Janardan Dubey v. State of Bihar ,71 the Apex Court held that the Govt. has certainly the power to revise its orders but it must be for good reasons. In the instant case the Govt. revised its earlier order without assigning any reason whatsoever. Hence, it was quashed. (a) Mid-Term Review Rule 23(1) of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, empowers the Designated Authority to review the need for continued imposition of anti-dumping duty from time to time and the Designated Authority, if satisfied on the basis of the information received by it that there is no justification for the continued imposition of such duty, can recommend to the Central Govt. for its withdrawl. It was contended that in such Mid-Term Review, it was mandatory for the Designated Authority to evaluate all the relevant economic factors. The Apex Court held that the scope of such a review inquiry by the Designated Authority was limited to the satisfaction as to whether there was justification for continued imposition of such duty on the information received by it.72 (b) Double revision In the Government order the Govt. reitirated its direction to the District Magistrate to comply with the order of the Supreme Court which was not any decision as such. The subsequent revision of the D.M.'s order would not amount to the exercise of the power of revision twice.73 7. COMMUNICATION OF AN ADMINISTRATIVE ORDER A legislative order needs to be notified in the gazette.74 The reason is that a legislative order is of a general nature and it usually affects quite a few persons, known or unknown, and, therefore, its publication in the gazette is necessary for general information. However, a specific law under which the legislative order is being made may impose some additional means of its publication as well.75 The communication of a legislative order individually to each and every person affected by it is not necessary. This position is brought out by the Supreme Court in State of Gujarat v. Panch of Nani Hamam's Pole .76 The reason is that the persons affected by a legislative order may be unspecified and too large, and it may not be possible to inform each and every one of these persons about the order made. However, in case of an administrative order,

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publication in the gazette is not necessary unless the law under which the order is being made itself imposes such a requirement. But, ordinarily, what is necessary is to bring an administrative order (actually or notionally) to the attention of the person affected by it. The reason is that such an order affects specified person or persons. Therefore, its publication in the gazette is not called for, but still it needs to be communicated to the specific person or persons affected thereby. So long as an order lies buried in the official files, without having seen the light of the day, it does not become effective. The government is not bound by it as it can change it. This comes out very clearly in Bachittar Singh.77 The order of the Revenue Minister setting aside the earlier order of 'dismissal' on the employee concerned, and reducing it to an order of 'reversal' instead, was not communicated to the employee. Later, the order was changed to 'dismissal'. The Supreme Court found nothing wrong with the order as the earlier 'reversal' order was never communicated and, thus, it never became effective. Therefore, communication of the order to the concerned person is essential. The government becomes bound by its own order as soon as it is communicated which means as soon as the order is promulgated or despatched because the order is then out of the reach of the government. Even if the order is not communicated as such, but if the affected person is informed of the gist or the order, the order may be regarded as having been communicated. The State Government cancelled the mining lease and the collector informed the lessee that his lease had been cancelled by the government. The Calcutta High Court ruled that although it was true that the order of the State Government as such was not communicated to the appellant "but it cannot be said that the appellant was never informed about the revocation order purported to have been made by the State Government." The government order could not be regarded as invalid or inoperative for want of communication. The Collector's communication was an official communication and it was held to be sufficient communication of the revocation order to the appellant and, thus, capable of affecting his rights. However, the court ruled that, in the instant case, in effect, there was no order made by the State Government which could be communicated.78 There may be a situation where the knowledge of the order may be imputable to the affected person as when the law in question may require the order to be notified in the gazette.79 But a question may arise in a fact-situation whether despatch of the order to the concerned person is adequate communication of the order to him or whether there should also be, in addition, receipt of the order by him to make the order operative against the affected person. On the one hand, it may be argued that in the absence of any knowledge about any such order on the part of the affected person, it will be unjust to hold him responsible for not obeying the order. On the other hand, if receipt of the order by the affected person were to be made compulsory in each and every case, then practical administrative difficulties may arise: he may evade service of the order on himself. As there will always be a time-gap between the despatch of the order in question by the officer making it to the concerned person and his actually receiving the same, the question may be relevant whether the order is presumed to have become effective vis-a-vis the concerned person from the date of the despatch of the order to him, or from the date of its actual receipt by him. No uniform rule can be laid down for the purpose. In some oases; receipt of the order by the affected person may be regarded as necessary: especially when non-compliance of the order by him leads to any punishment. This point clearly emerges from the Privy Council case Lim Chin Aik v. R ,80 where Lord Evershed said: "...where a man is said to have contravened an order or an order of prohibition, the common sense of the language presumes that he was aware of the order before he can be said to have contravened it." It will be unfair to subject a person to any punishment for infringing an order of which he knows nothing. Therefore, mere despatch of the communication of the order in such a case may not be regarded at enough. He should also know about the order. But, in some situations, such a strict rule need not be followed. The Supreme Court has laid down that for certain purposes the order may be treated to have come into effect as soon as it is despatched and thus put out of control of the authority making the order. For example, in State of Punjab v. Khemi Ram ,81 the Court has taken the view that an order of suspension of a government servant takes effect from the date of its despatch to him irrespective of the date on which he receives the same. In the instant case, the employee was due to retire from service on August 4, 58. As there were certain charges against him which needed to be inquired into, the State Government passed an order of his suspension on July 31, 58, and telegraphically informed him that he was suspended from service with effect from August 2, 58. A charge sheet was despatched to him on July 31. The suspension order and the charge sheet reached him after August 4, and the employee claimed that he could not be suspended after he had

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retired. The question was: when did the order of suspension come into force? The Court ruled that the order came into force on the day it was despatched to the employee concerned, viz., July 31, 1958. On that date, the order passed from the hands of the Government. The position, therefore, was not as if the order remained with the Government or that it could have changed its mind about it or modified it. This ruling has been reiterated in several other cases.82 The Supreme Court has however ruled that if the order were of 'dismissal', rather than of 'suspension', then the position would have been different and then the knowledge of the order on the part of the employee would have been necessary as dismissal involves certain serious consequences.83

1 Gyanmandir Mahavidhyalaya Samity v. Udailal Jaroli, (2005) 10 SCC 603. 2 Hemalatha Gargya v. Commissioner of Income Tax, A.P., (2003) 9 SCC 510 [LNIND 2002 SC 748] [LNIND 2002 SC 748] [LNIND 2002 SC 748], 517 (para 11). See also Paros Electronics Pvt. Ltd. v. U.O.I., 1995 Supp (3) SCC 578. 3 State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, 691 (para 77). 4 Ashok Lanka v. Rishi Dixit, (2005) 5 SCC 598 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498], 622 (para 55) : AIR 2005 SC 2821 [LNIND 2005 SC 498] [LNIND 2005 SC 498] [LNIND 2005 SC 498]. 5 K.K. Bhalla v. State of M.P., (2006) 3 SCC 581 [LNIND 2006 SC 24] [LNIND 2006 SC 24] [LNIND 2006 SC 24], 592. (para 38). 6 Bagalore Development Authority v. R. Hanumaiah, (2005) 12 SCC 508 [LNIND 2005 SC 760] [LNIND 2005 SC 760] [LNIND 2005 SC 760], 535 (para 58). 7 State v. Kulwant Singh, (2003) 9 SCC 193 [LNIND 2003 SC 182] [LNIND 2003 SC 182] [LNIND 2003 SC 182], 204 (para 28): AIR 2003 SC 1599 [LNIND 2003 SC 182] [LNIND 2003 SC 182] [LNIND 2003 SC 182]. 8 Govt. of A.P. v. Syed Akbar, (2005) 1 SCC 558 [LNIND 2004 SC 1161] [LNIND 2004 SC 1161] [LNIND 2004 SC 1161], 565-66 (para 16) . 9 State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 [LNIND 2005 SC 610] [LNIND 2005 SC 610] [LNIND 2005 SC 610], 763 (para 28) : AIR 2005 SC 492 [LNIND 2004 SC 1161] [LNIND 2004 SC 1161] [LNIND 2004 SC 1161]. 10 State Inspector of Police v. Surya Sankaram Karri, (2006) 7 SCC 172 [LNIND 2006 SC 645] [LNIND 2006 SC 645] [LNIND 2006 SC 645], 178 (para 16) . 11 Hira Tikkoo v. Union Territory, Chandigarh, AIR 2004 SC 3648 [LNIND 2004 SC 481] [LNIND 2004 SC 481] [LNIND 2004 SC 481]: (2004) 6 SCC 765 . 12 Punjab State Electricity Board Ltd. v. Zora Singh, (2005) 6 SCC 776 [LNIND 2005 SC 609] [LNIND 2005 SC 609] [LNIND 2005 SC 609], 784-85 (para 30) . 13 Gram Panchayat of Village Naulakha v. Ujagar Singh, (2000) 7 SCC 543 [LNIND 2000 SC 1307] [LNIND 2000 SC 1307] [LNIND 2000 SC 1307] . 14 In R/O Ram Ashray Yadav, Chairman, Bihar Service Commission, (2000) 4 SCC 309 [LNIND 2000 SC 539] [LNIND 2000 SC 539] [LNIND 2000 SC 539], 312 (para 5) : AIR 2000 SC 1448 [LNIND 2000 SC 539] [LNIND 2000 SC 539] [LNIND 2000 SC 539]. 15 Hindustan Times v. State of U.P., (2003) 1 SCC 591 : AIR 2003 SC 250 . 16 Haryana Urban Development Authority v. Nalini Aggarwal, AIR 1997 SC 2582 [LNIND 1997 SC 695] [LNIND 1997 SC 695] [LNIND 1997 SC 695]: JT 1997 (5) SC 179 . 17 (2005) 3 SCC 153 [LNIND 2005 SC 200] [LNIND 2005 SC 200] [LNIND 2005 SC 200], 154, 156 (para 2 and 8) : AIR 2005 SC 2021 [LNIND 2005 SC 200] [LNIND 2005 SC 200] [LNIND 2005 SC 200]. 18 (2005) 3 SCC 153 [LNIND 2005 SC 200] [LNIND 2005 SC 200] [LNIND 2005 SC 200], 154, 156 (para 2 and 8) : AIR 2005 SC 2021 [LNIND 2005 SC 200] [LNIND 2005 SC 200] [LNIND 2005 SC 200]. 19 Center for Public Interest Litigation v. Union of India, (2005) 8 SCC 202 [LNIND 2005 SC 797] [LNIND 2005 SC 797] [LNIND 2005 SC 797], 210 (paras 18 and 20) : AIR 2005 SC 4413 [LNIND 2005 SC 797] [LNIND 2005 SC 797] [LNIND 2005 SC 797], approving Metroplitan Properteis Co. v. Lannon, (1968) 3 All ER 204, 310 : (1969) 1 QB 577 : (1968) 3 WRL 694 (CA) .

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20 HUDA v. Kapoor Yadav, (2005) 10 SCC 561 (para 4) . 21 Praga Tools Corporation Ltd v. Mahaboobunnisa Begum, AIR 2001 SC 2361 [LNIND 2001 SC 1185] [LNIND 2001 SC 1185] [LNIND 2001 SC 1185]: (2001) 6 SCC 238 . 22 Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan & Dombivali, (2004) 11 SCC 417 [LNIND 2004 SC 1086] [LNIND 2004 SC 1086] [LNIND 2004 SC 1086], 424 (para 21) : AIR 2004 SC 34 . 23 JT 1996 (11) SC 467 : 1996 (9) Scale 141 . 24 Balbir Singh v. Food Corporation of India Ltd., (1997) 3 SCC 371 [LNIND 1996 SC 2148] [LNIND 1996 SC 2148] [LNIND 1996 SC 2148] : JT 1996 (11) SC 507 . 25 S.P. Goel v. Collector of Stamps, Delhi, AIR 1996 SC 839 [LNIND 1995 SC 1274] [LNIND 1995 SC 1274] [LNIND 1995 SC 1274]: (1996) 1 SCC 573 . 26 Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344 [LNIND 2005 SC 573] [LNIND 2005 SC 573] [LNIND 2005 SC 573], 370-71 (para 38) : AIR 2005 SC 3353 [LNIND 2005 SC 573] [LNIND 2005 SC 573] [LNIND 2005 SC 573]. See also State of A.P. v. Food Corporation of India, (2004) 13 SCC 53, 54 (para 2) . 27 Bru Pal Sharma v. Ghaziabad Development Authority, (2005) 7 SCC 106 [LNIND 2005 SC 622] [LNIND 2005 SC 622] [LNIND 2005 SC 622], 109 (para 17), applying Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65 : AIR 2004 SC 2141 . 28 Suram Chand v. State of J&K, (2005) 13 SCC 433, 434 (paras 1&2) . 29 State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545 [LNIND 2006 SC 5] [LNIND 2006 SC 5] [LNIND 2006 SC 5], 577 (para 89) . 30 (2006) 3 SCC 399 [LNIND 2006 SC 100] [LNIND 2006 SC 100] [LNIND 2006 SC 100], 425, 428 (para 61 and 69.5). See also M.A. Wahid v. State of Kerala, 2001 (3) SLT 642 (1). 31 (2005) 9 SCC 457, 459 (para 7) : AIR 2005 SC 4143. See also Haryana Urban Development Authority v. Seema Handa, (2005) 9 SCC 494, 496 (para 9) ; Haryana Uraban Development Authority v. Darsh Kumar, (2005) 9 SCC 449 [LNIND 2004 SC 725] [LNIND 2004 SC 725] [LNIND 2004 SC 725], 451 (para 9) ; Haryana Urban Development Authority v. Vijaya Aggarawal, (2005) 9 SCC 446, 448 (para 9) : AIR 2004 SC 3952 [LNIND 2004 SC 714] [LNIND 2004 SC 714] [LNIND 2004 SC 714]; Haryana Uraban Development Authority v. K.C. Kad, (2005) 9 SCC 469, 471 (para 6) : AIR 2004 SC 4479 [LNIND 2004 SC 775] [LNIND 2004 SC 775] [LNIND 2004 SC 775]. For non-delivery of allotted plot and non-development work. Development Authority directed to refund deposited money with interest and pay compensation, Haryana Urban Development Authority v. Dev Dutt Gandhi, (2005) 9 SCC 497 [LNIND 2004 SC 871] [LNIND 2004 SC 871] [LNIND 2004 SC 871], 499 (para 9) : AIR 2004 SC 4498 [LNIND 2004 SC 871] [LNIND 2004 SC 871] [LNIND 2004 SC 871]. 32 H.P. Housing Board v. Varinder Kumar Garg, (2005) 9 SCC 430, 432 (paras 9, 10 and 11) : AIR 2004 SC 4133 [LNIND 2004 SC 716] [LNIND 2004 SC 716] [LNIND 2004 SC 716]. 33 Research Foundation for Science (20) v. Union of India, (2005) 13 SCC 673, 674 (para 5) . 34 (2005) 13 SCC 671, 672 (para 2). See also Research Foundation for Science (10) v. U.O.I., (2005) 13 SCC 659, 661 (para 3) . 35 Pollution Control Board, Assam v. Mahabir Coke Industry, (2000) 9 SCC 344 . 36 (2006) 1 SCC 1 [LNIND 2005 SC 735] [LNIND 2005 SC 735] [LNIND 2005 SC 735], 19, 45 (paras 18, 19 and 99. F) . 37 (2006) 3 SCC 429, 430 (para 4) . 38 (1997) 10 SCC 216 : JT 1997 (2) SC 361 . 39 State of Haryana v. Raj Kumar Manu, (1997) 3 SCC 321 [LNINDORD 1997 SC 60] [LNINDORD 1997 SC 60] [LNINDORD 1997 SC 60] : JT 1997 (3) SC 450 [LNINDORD 1997 SC 60] [LNINDORD 1997 SC 60] [LNINDORD 1997 SC 60]. 40 Union Bank of India v. M.T. Latheesh, (2006) 7 SCC 350 [LNIND 2006 SC 628] [LNIND 2006 SC 628] [LNIND 2006 SC 628], 365 (para 37) . 41 Muni Suvrat-Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad, (2006) 8 SCC 590 [LNIND 2006 SC 808] [LNIND 2006 SC 808] [LNIND 2006 SC 808], 611-12 (para 57), following Syed Muzaffar Ali v. Municipal Corpn. of Delhi, 1995 Supp (4) SCC 426 and impliedly approving Bilkishbhai Moizbhai Vasi v. Municipal Corpn for Greater Bombay, WP No. 1286 of 1980 decided on 10-8-1983 (Bom) and Abdul Rehman Siddique v. Ahmed Mia Gulam Mohuddin Ahmedji, (1996) 2 Mah LJ 1042. 42 A. Sudhakar v. Postmaster General, (2006) 4 SCC 348 [LNIND 2006 SC 213] [LNIND 2006 SC 213] [LNIND 2006 SC 213], 356 (paras 17 and 18) .

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43 Supra, Chapter I. 44 Supra, Chapter III. 45 Supra, Chapters IV, V, VI. 46 Ramkanyadevi v. State, AIR 1980 Kant 182 . 47 Registrar of Co-op. Societies v. K. Kunjambu AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340; Jain, Cases, 77, 115. 48 Supra, Chapter IX. 49 Supra, Chapter IX. 50 Supra, Chapters IX, X, XI, & XII. 51 A.K. Kraipak v. Union of India, AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]: (1969) 2 SCC 262 ; Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197]: (1985) 4 SCC 417; Jain, Cases, 504, 877, 917. Also see, in this connection. J. Mohapatra & Co. v. State of Orissa, AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]: (1984) 4 SCC 103. Chapter XI; Jain, Cases, 860 . 52 Franklin v. Minister of Town & Country' Planning, (1948) AC 87 . 53 AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]: (1975) 2 SCC 818 : 1975 (2) LLJ 326 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]; Jain, Cases, Chapter XIV, Sec. C. 54 Supra. Chapter X. 55 Neelima Misra v. Harinder Kaur Paintal, AIR 1990 SC 1402 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173]at 1408 : (1990) 2 SCC 746 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173] : 990 (2) SLR 435; Jain, Cases, Chapter XIV, Sec. A. 56 Neelima Misra v. Harinder Kaur Paintal, AIR 1990 SC 1402 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173], 1408 : Srinivas v. UOI, (1990) 2 SCC 746 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173] . 57 Harinder Kaur v. Chancellor, Lucknow Union, 1989 Lab IC 2248. Also, L.N. Mathur v. Chancellor, Lucknow University, AIR 1986 All 273 [LNIND 1984 ALL 275] [LNIND 1984 ALL 275] [LNIND 1984 ALL 275]. 58 AIR 1991 SC 564 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53], 569 : (1991) 1 SCC 654 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53] : 1991 Crlj 664; Jain, Cases, Chapter XIV, Sec. A. 59 Supra, Chapters III & IX. 60 For examples of such functions, see, infra, this chapter. 61 In some statutes, in other countries, the term 'administrative' has been used. This may give rise to important problems of interpretation. Thus, in England, the Parliamentary Commissioner is empowered to investigate complaints of injustice caused by maladministration in the exercise of administrative functions by government departments. What does the term administrative mean here? Does it only mean administrative as distinguished from legislative? Or does it also mean as distinguished from quasi-judicial or adjudicatory as well? The British Ombudsman taking a liberal view of his jurisdiction has investigated functions at times where natural justice was followed and thus could be regarded as quasi-judicial or adjudicatory from this point of view. On Ombudsman, see, infra, Vol. II. 62 (1999) 7 SCC 89 [LNIND 1999 SC 711] [LNIND 1999 SC 711] [LNIND 1999 SC 711], 99 (para 11) : AIR 1999 SC 3678 [LNIND 1999 SC 711] [LNIND 1999 SC 711] [LNIND 1999 SC 711]. 63 Rakesh Kumar Jain v. State, (2000) 7 SCC 656 [LNIND 2000 SC 1070] [LNIND 2000 SC 1070], 660 (para 4) . 64 Commissioner of Trade Tax v. Upper Doab Sugar Mills Ltd, AIR 2000 SC 1829 [LNIND 2000 SC 496] [LNIND 2000 SC 496] [LNIND 2000 SC 496]: (2000) 3 SCC 676. 65 Indra Sawhney v. UOI, AIR 2000 SC 498 : (2000) 1 SCC 168 . 66 Registrar (Administration), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265 [LNIND 1999 SC 817] [LNIND 1999 SC 817] [LNIND 1999 SC 817]: (1999) 7 SCC 725 . 67 : State of J&K v. Shiv Ram Sharma, (1999) 3 SCC 653 [LNIND 1999 SC 318] [LNIND 1999 SC 318] [LNIND 1999 SC 318]. 68 de Smith's Administrative Law, 5th Edn., para 13-010, as cited in Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 [LNIND 1999 SC 484] [LNIND 1999 SC 484] [LNIND 1999 SC 484], 740 (para 24) : AIR 1999 SC 1801 [LNIND 1999

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SC 484] [LNIND 1999 SC 484] [LNIND 1999 SC 484]. 69 Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727 [LNIND 1999 SC 484] [LNIND 1999 SC 484] [LNIND 1999 SC 484], 740 (para 24) : AIR 1999 SC 1801 [LNIND 1999 SC 484] [LNIND 1999 SC 484] [LNIND 1999 SC 484]. 70 Indian Drugs & Pharmaceuticals Ltd. v. Punjab Drugs Manufacturers Association, (1999) 6 SCC 247 [LNIND 1999 SC 310] [LNIND 1999 SC 310] [LNIND 1999 SC 310], 251-52 (para 10) : AIR 1999 SC 1626 [LNIND 1999 SC 310] [LNIND 1999 SC 310] [LNIND 1999 SC 310], relying on Naraindas Indurkhya v. State of M.P., (1974) 4 SC 788 and Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]: (1955) 2 SCR 225 . 71 Satya Narain Shukla v. Union of India, (2006) 9 SCC 69 [LNIND 2006 SC 387] [LNIND 2006 SC 387] [LNIND 2006 SC 387], 76 (para 16), relying on Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123] : AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]. 72 Supra, Chapter IX. Also this chapter. 73 See, under, heading : 'Res judicata', supra, Chapter XIV; AIR 1962 SC 53 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961 SC 229]: 1962 (2) SCR 644. Also see, Neelima Misra v. Harinder Kaur Paintal, AIR 1990 SC 1402 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173], at 1408 : (1990) 2 SCC 746 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC 173] . 74 See, under heading : 'Adjudicatory Body not to Revise/Review its own orders', supra, Chapter XIV ; 1982 Pub Law 613; Jain, Cases, Chapter XIII, Sec. L. 75 AIR 1970 SC 1205 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]: (1970) 1 SCC 225 : 1970 (2) LLJ 256 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]; Jain, Cases, Chapter XIV, Sec. C. 76 Infra, this chapter. Also see, supra, Chapter XIV, Under heading 'Executive Interference' with Tribunal Justice'. 77 For Res Judicata, see, supra, Chapter XIV, Jain, Cases, Chapter XIII, Sec. D. 78 AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]: (1979) 1 SCC 1 ; Jain, Cases, Chapter XIV, Sec. C. 79 A.S. Production Agencies v. Industrial Tribunal, AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284], 175 : (1979) 1 SCC 1 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284] . 80 AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]: (1980) 3 SCC 402 : 1980 (2) LLJ 152 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]; Jain, Cases, Chapter XIV, Sec. C. Also see, Michael Akehurst, Revocation of Administrative Decisions, (1982) Pub. Law, 613. 81 Ramakanyadevi v. State, AIR 1980 Kant 182.Also, R.R. Verma v. Union of India, AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]: (1980) 3 SCC 402 : 1980 (2) LLJ 152 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]. For discussion on the Res Judicata Rule, see, note 21, supra. 82 Ramkanyadevi v. State, AIR 1980 Kant 182 . 83 Supra, Chapter VIII. 84 M. Satyanandam v. Dy. Secy. to the Govt. of Andhra Pradesh, AIR 1987 SC 1968 [LNIND 1987 SC 495] [LNIND 1987 SC 495] [LNIND 1987 SC 495]: (1987) 3 SCC 574; Jain, Cases, Chapter XIV, Sec. C. 85 For Comments on this provision, see, K.P. Khaitan v. U.O.I., AIR 1957 SC 676 [LNIND 1957 SC 49] [LNIND 1957 SC 49] [LNIND 1957 SC 49], 678 : 1958 (2) LLJ 461 [LNIND 1957 SC 49] [LNIND 1957 SC 49] [LNIND 1957 SC 49] ; Starboard Manufacturing Co. v. Gutta Mill Workers' Union, AIR 1953 SC 95 [LNIND 1952 SC 95] [LNIND 1952 SC 95] [LNIND 1952 SC 95]: 1953 (1) LLJ 186 ; Amir Shad Khan v. L. Hmingliana, AIR 1991 SC 1983 [LNIND 1991 SC 362] [LNIND 1991 SC 362] [LNIND 1991 SC 362]: (1991) 4 SCC 39 : 1991 Crlj 2713; Jain, Cases. Chapter XIV, Sec. C. For text of S. Section 21, General Clauses Act, see, Amir Shad Khan v. L. Hmingliana, AIR 1991 SC 197 : (1991) 4 SCC 39 : 1991 Crlj 2713 . 86 Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 2922 at p. 294 : (1968) 1 SCR 434 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967 SC 254]. Also, Jain, Cases, Chapter VIII, 503. 87 AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505 : JT 1989 (1) SC 118 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680], Jain, Cases, Chapter VIII 597. 88 See, under heading : 'Adjudicatory Body not to Revise/Review its own orders', supra, Chapter XIV. 1 In view of this ruling, the view expressed by the Madras High Court in V. Dhandayuthapani v. S.P. Krishnamurthi, AIR 1988 Mad 79, cannot be regarded as good law. In this case, the High Court ruled that after rejecting an application for exemption from a rule, the government could not reverse its order and grant exemption. The court thus equated an administrative order with a quasi-judicial order which is not a correct approach. Also see in this connection, Jain, Cases, Chapter XIV. Sec. C.

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2 Supra, Chapters IX and X. Also see, State of U.P. v. Maharaja Dharmendra Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505; Purtabpore Co. v. Cane Commissioner, Bihar, AIR 1970 SC 1896 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350]: (1969) 1 SCC 308; Jain, Cases, Chapter XIII, Sec. J. 3 State of U.P. v. Maharaja Dharmander Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505. Also see, under Discretionary Powers, infra, Chapter XIX . 4 Infra, Chapter XXII. Also see, Sanjaya Sales Corpn. v. National Mineral Development Corp. Ltd., AIR 1993 AP 62 [LNIND 1991 AP 142] [LNIND 1991 AP 142] [LNIND 1991 AP 142]. 5 AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]: (1980) 3 SCC 402: 1980 (2) LLJ 152 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]; Jain, Cases, Chapter XIV, Sec. C. 6 AIR 1989 SC 49 [LNIND 1988 SC 466] [LNIND 1988 SC 466] [LNIND 1988 SC 466]: (1988) 4 SCC 669 : JT 1988 (4) SC 613 [LNIND 1988 SC 466] [LNIND 1988 SC 466] [LNIND 1988 SC 466]. 7 See, S.C. & Weaker Section Welfare Ass. v. State of Karnataka, AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180]: (1991) 2 SCC 604; Jain, Cases, 519. 8 See, under heading : 'Executive Interference with Tribunal Justice', supra, Chapter XIV. 9 See, for example, State of Bihar v. Ganguly, AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92] [LNIND 1958 SC 92]: 1958 (2) LLJ 634; Jain, Cases, Chapter XIII, Sec. K. 10 Lt. Gov. v. Avinash Sharma, AIR 1970 SC 1576 : (1970) 2 SCC 149. 11 Supra, Chapter X. Also see, S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986]: (1990) 4 SC 594 : 1990 Crlj 2148; Jain, Cases, Chapter IX, 776. 12 Hukam Singh v. State of Punjab, AIR 1975 P&H 148. Also see, Spl. Land Acquisition Officer, Bombay v. Godrej & Boyce, (1988) 1 SCC 50 [LNIND 1987 SC 712] [LNIND 1987 SC 712] [LNIND 1987 SC 712]; infra, Chapter XVII; Jain, Cases, Chapter XVI, Sec. H. 13 See, infra, this chapter. 14 Mahabir Jute Mills v. Shibban Lal Saxena, AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]: (1975) 2 SCC 818 : 1975 (2) LLJ 326 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]; Jain, Cases, Chapter XIV, Sec. C. 15 Vijay Kumar v. Union of India, AIR 1988 SC 934 [LNIND 1988 SC 141] [LNIND 1988 SC 141] [LNIND 1988 SC 141]: (1988) 2 SCC 57: 1988 Crlj 951. 16 The Conservation of Foreign Exchange and Prevention of Smuggling Act. 17 Union Public Service Commission v. Hiranyalal Dev, AIR 1998 SC 1069 : (1988) 2 SCC 242 : 1988 (2) SLR 148 [LNIND 1988 SC 653] [LNIND 1988 SC 653] [LNIND 1988 SC 653]; Jain, Cases, Chapter XIV, Sec. B. Also, R.S. Dass v. Union of India, AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]: 1986 Supp SCC 617; Jain, Cases, Chapter XIV, Sec. B. See, contra, Mayer Simon v. Advocate General, AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]. The High Court held there that the function of the Advocate General under S. 92, CPC, was administrative, but, nevertheless, he still ought to give reasons for his refusal to give his consent. This case falls out of the generally accepted pattern in Administrative Law. For comments on this case, see, M.P. Jain, Adm. Law in I.L.I, (1975) XI Annual Survey of Indian Law, 474. 18 National Institute of Mental Health & Neuro Sciences v. K.K. Raman, AIR 1992 SC 1806 [LNIND 1991 SC 636] [LNIND 1991 SC 636] [LNIND 1991 SC 636]: 1992 Supp (2) SCC 481 : 1992 (2) LLJ 616 [LNIND 1991 SC 636] [LNIND 1991 SC 636] [LNIND 1991 SC 636] . 19 For further discussion on the question of effect of not giving reasons for an administrative order, see, infra, Chapter XIX, under Discretionary Powers. 20 Collector of Monghyr v. Keshav Prasad, AIR 1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136]: 1963 (1) SCR 98; Narayan Das v. State of Madhya Pradesh, AIR 1972 SC 2086 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]: (1972) 3 SCC 676 : 1972 Crlj 1323; State of Uttar Pradesh v. Lalai Singh, AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333]: (1976) 4 SCC 213 : 1977 Crlj 186 ; Ajantha Industries v. Central Board of Direct Taxes, AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]: (1976) 1 SCC 1001 : (1976) 102 ITR 281 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]. Also see, infra, Chapter XIX, under Discretionary Powers also. Jain, Cases, Chapter XVI, Sec. C 21 Union of India v. H.P. Chothia, AIR 1978 SC 1214 [LNIND 1978 SC 124] [LNIND 1978 SC 124] [LNIND 1978 SC 124]: (1978) 2 SCC 586; Jain, Cases, Chapter XIV, Sec. B.

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22 See, infra, Vol. II, under Judicial Control. 23 Indian National Congress (I) v. Institute of Social Wlefare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 700 (paras 26 and 27) : AIR 202 SC 2158 . 24 Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400], 701 (para 29) : AIR 2002 SC 2158 [LNIND 2002 SC 400] [LNIND 2002 SC 400] [LNIND 2002 SC 400]. 25 Engg. Mazdoor Sabha v. Hind Cycles Ltd., 1963 Supp (1) SCR 625, 628: AIR 1963 SC 874 [LNIND 1962 SC 337] [LNIND 1962 SC 337] [LNIND 1962 SC 337]. 26 State of Maharashtra v. Marwanjee F. Desai, (2002) 2 SCC 318 [LNIND 2001 SC 2858] [LNIND 2001 SC 2858] [LNIND 2001 SC 2858], 328 (para 10) : AIR 2002 SC 456 [LNIND 2001 SC 2858] [LNIND 2001 SC 2858] [LNIND 2001 SC 2858]. 27 State of Maharashtra v. Basantilal, (2003) 10 SCC 620 (para 5) : AIR 2003 SC 4688 . 28 (2005) 8 SCC 618 [LNIND 2005 SC 851] [LNIND 2005 SC 851] [LNIND 2005 SC 851], 642, 657-59 (paras 9 and 35), per majority. 29 Punjab & Sind Bank v. Allahabad Bank, (2006) 4 SCC 780 [LNIND 2006 SC 220] [LNIND 2006 SC 220] [LNIND 2006 SC 220], 785 (para 11) . 30 State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517 [LNIND 2006 SC 210] [LNIND 2006 SC 210] [LNIND 2006 SC 210], 533-34 (para 26) . 31 State Bank of India v. K.P. Subbaiah, JT 2003 (5) SC 565 [LNIND 2003 SC 555] [LNIND 2003 SC 555] [LNIND 2003 SC 555]: 2003 (5) Scale 261 : AIR 2003 SC 3016 [LNIND 2003 SC 555] [LNIND 2003 SC 555] [LNIND 2003 SC 555]: (2003) 11 SCC 646. 32 Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227 [LNIND 2005 SC 7] [LNIND 2005 SC 7] [LNIND 2005 SC 7], 232 (para 16) : AIR 2005 SC 744 [LNIND 2005 SC 7] [LNIND 2005 SC 7] [LNIND 2005 SC 7]. 33 Association for the Officers of the W.B. Audit & Accounts Service v. W.B. Audit & Accounts Service Association, 1995 Supp (4) SCC 44 . 34 Govt. of A.P. v. Maharshi Publishers Pvt. Ltd., JT 2002 (9) SC 277 [LNIND 2002 SC 686] [LNIND 2002 SC 686] [LNIND 2002 SC 686]: 2002 (8) Scale 291 : AIR 2003 SC 296 [LNIND 2002 SC 686] [LNIND 2002 SC 686] [LNIND 2002 SC 686]: (2003) 1 SCC 95. 35 Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023 [LNIND 2000 SC 323] [LNIND 2000 SC 323] [LNIND 2000 SC 323]: (2000) 3 SCC 409 . 36 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 [LNIND 2005 SC 580] [LNIND 2005 SC 580] [LNIND 2005 SC 580], 656-57 (para 16), relying on State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 and Supdt. of Police (CBI) v. Deepak Choudhary, (1995) 6 SCC 225 [LNIND 1995 SC 797] [LNIND 1995 SC 797] [LNIND 1995 SC 797] : AIR 1996 SC 186 [LNINDORD 1995 SC 57] [LNINDORD 1995 SC 57] [LNINDORD 1995 SC 57]. 37 Jayaram Reddy v. Govt. of A.P., JT 1999 (10) SC 399. See also Laxman Naskar v. State of W.B., AIR 2000 SC 2762 [LNIND 2000 SC 1180] [LNIND 2000 SC 1180] [LNIND 2000 SC 1180]: (2000) 7 SCC 626. 38 Konkan Railway Corporation Ltd. v. Mehul Construction Co., (2000) 7 SCC 201 [LNIND 2000 SC 1131] [LNIND 2000 SC 1131] [LNIND 2000 SC 1131], 209 (para 6) : AIR 2000 SC 2821 [LNIND 2000 SC 1131] [LNIND 2000 SC 1131] [LNIND 2000 SC 1131], affirming Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 SCC 479 [LNIND 1999 SC 26] [LNIND 1999 SC 26] [LNIND 1999 SC 26] and Ador Samia (P.) Ltd., v. Peekay Holdings Ltd. (1999) 8 SCC 572 [LNIND 1999 SC 1491] [LNIND 1999 SC 1491] [LNIND 1999 SC 1491] : AIR 1999 SC 3246 [LNIND 1999 SC 1491] [LNIND 1999 SC 1491] [LNIND 1999 SC 1491]. 39 Maharashtra State Seeds Corporation v. Hariparasad Drupadrao Jadhao, (2006) 3 SCC 690 [LNIND 2006 SC 138] [LNIND 2006 SC 138] [LNIND 2006 SC 138], 698 (para 22). 40 Union of India v. West Coast Paper Mills Ltd., (2004) 2 SCC 747 [LNIND 2004 SC 264] [LNIND 2004 SC 264] [LNIND 2004 SC 264], 759 (para 42) : AIR 2004 SC 1596 [LNIND 2004 SC 264] [LNIND 2004 SC 264] [LNIND 2004 SC 264]. 41 Chairman, Ludhiana Improvement Trust v. Kanwaljit Singh, (2004) 9 SCC 421 [LNIND 2004 SC 142] [LNIND 2004 SC 142] [LNIND 2004 SC 142], 428 (para 13). 42 (2004) 4 SCC 146 [LNIND 2004 SC 411] [LNIND 2004 SC 411] [LNIND 2004 SC 411], 156-57 (para 16) : AIR 2004 SC 2640 [LNIND 2004 SC 411] [LNIND 2004 SC 411] [LNIND 2004 SC 411]. 43 A.S. Sangwan v. U.O.I., AIR 1981 SC 1545 : 1980 Supp SCC 559; Jain, Cases, Chapter XIV, Sec. D; U.O.I. v. S.L. Sutta, AIR 1991 SC 363 [LNIND 1990 SC 869] [LNIND 1990 SC 869] [LNIND 1990 SC 869]: (1991) 1 SCC 505 : 1991 (1) SLR 564; Jain, Cases, Chapter XIV, Section D; Oswal Woollen Mills Ltd. v. U.O.I., AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983

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SC 167] [LNIND 1983 SC 167]: (1983) 4 SCC 345; Jain, Cases, 457. For more cases on policy-making by the Executive, see, infra, under Promissory Estoppel, Chapter XXII; Jain, Cases, Chapter XXI. 44 Jain, Indian Constitutional Law, 106, 182 (1987). 45 Arts. 75(2) and 164(2) of the Constitution of India. 46 Mohan Kumar Singhania v. U.O.I., AIR 1992 SC 1: 1992 Supp (1) SCC 594 : 1991 LIC 2334. 47 AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]: 1955 (2) SCR 225; Jain, Cases, Chapter XIV, Sec. D. 48 Jain, Indian Constitutional Law, at 346-357. 49 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]at 555-56 : (1955) 2 SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]. 50 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]at 556 : (1955) 2 SCR 225 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]. 51 Jain, Indian Constitutional Law, at 45, 174. 52 AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]: (1974) 4 SCC 788; Jain, Cases, Chapter XIV, Sec. D. 53 Jayantilal Amrathlal v. F.N. Rana,, AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC 246]: 1964 (5) SCR 294. 54 Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333]. 55 See, for example, U.O.I. v. Anglo Afghan Agencies Ltd., AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334]: 1968 (2) SCR 366; infra, Chapter XXII, under Promissory Estoppel; Jain, Cases, Chapter XXI. 56 See, Jain, Indian Constitutional Law, 523, 576 (1987). Also see, infra, Chapter XVIII ; Jain, Cases, Chapter XV. 57 See, infra, Chapter XXIII, for a fuller discussion, under Government Contracts. Also see, Jain, Indian Constitutional Law, 811-15 (1987); Jain, Cases; Chapter XXII. 58 For discussion on Art. 298, see, Jain, Indian Constitutional Law, 811-815 (1987). Also see, infra, Chapter XXIII, under Government Contracts. 59 Mahabir Auto Stores v. Indian Oil Corp., AIR 1990 SC 1031 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC 135]: (1990) 3 SCC 752 : (1990) 69 Comp Cas 746. Also see, infra, Chapter XXIII, under Govt. Contracts; Jain, Cases, Chapter XXII . 60 Sri Rama Eng. Contractors v. Dept. of Space, Govt. of India, AIR 1981 AP 165 [LNIND 1981 AP 64] [LNIND 1981 AP 64] [LNIND 1981 AP 64]. 61 Haji T.M. Hassan v. Kerala Financial Corp., AIR 1988 SC 157 [LNIND 1987 SC 766] [LNIND 1987 SC 766] [LNIND 1987 SC 766]: (1988) 1 SCC 166 ; Chetlal Sao v. State of Bihar, AIR 1986 Pat 267; also see, infra, under Government contracts, Chapter XXIII . Also see, Jain, Indian Constitutional Law, 811-15 (1987) Jain, Cases, Chapter XXI . 62 See, infra, under Government Contracts, Chapter XXIII . Also see, Jain, Indian Constitutional Law, 811-15 (1987) Jain, Cases, Chapter XXI. 63 Maganbhai v. U.O.I., AIR 1969 SC 783 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6]: (1970) 3 SCC 400 ; U.O.I. v. Manmull, AIR 1954 Cal 615 [LNIND 1954 CAL 137] [LNIND 1954 CAL 137] [LNIND 1954 CAL 137]; Nirmal Bose v. U.O.I., AIR 1959 Cal 506 [LNIND 1959 CAL 71] [LNIND 1959 CAL 71] [LNIND 1959 CAL 71]. 64 B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67]: 1967 (1) LLJ 698 : 1966 (3) SCR 682 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67]; Jain, Cases, 387; State of Kerala v. A. Lakshmikutty, AIR 1987 SC 331 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428]: (1986) 4 SCC 632 : 1987 (1) SLR 17; Sikkim v. Dorjee Tshering Bhutia, AIR 1991 SC 1933 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392]: (1991) 4 SCC 243 ; Shamkant Narayan Deshpande v. Maharashtra Industrial Dev. Corp., AIR 1993 SC 1173 : 1993 Supp (2) SCC 194 : 1993 (2) LLJ 686 ; J.K. Public Service Comm. v. Narinder Mohan, AIR 1994 SC 1809 : (1994) 2 SCC 630 : 1994 (1) LLJ 780. 65 Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222]: 1968 (2) LLJ 830 ; S.L. Sachdev v. Union of India, AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432]: (1980) 4 SCC 562; supra, 219, 229.

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66 Accountant-General v. Doraiswamy, AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93; Jain, Cases, 201. 67 Shamkant Narayan Deshpande v. Maharashtra Industrial Development Corporation, AIR 1993 SC 1113. 68 Vinay Kumar Verma v. State of Bihar, AIR 1990 SC 1689 [LNIND 1990 SC 214] [LNIND 1990 SC 214] [LNIND 1990 SC 214]: 1990 (2) LLJ 365 : (1990) 2 SCC 647 [LNIND 1990 SC 214] [LNIND 1990 SC 214] [LNIND 1990 SC 214]. 69 Mysore State Road Transport Corp. v. Gopinath Gundachar Char, AIR 1968 SC 464 [LNIND 1967 SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293]: 1968 (2) LLJ 144; Balasubramaniam v. Tamil Nadu Housing Board, AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]: (1987) 4 SCC 738 : 1988 (2) LLJ 435 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661]; Jain, Cases, 435. 70 D.D. Suri v. A.K. Barren, AIR 1971 SC 175 : (1970) 3 SCC 313 ; Rajendra Roy v. U.O.I., AIR 1993 SC 1236 [LNINDORD 2012 CATND 1367] [LNINDORD 2012 CATND 1367] [LNINDORD 2012 CATND 1367]: (1993) 1 SCC 148. 71 Sarkari Sasta Anaj Vikreta Sangh v. State of Madhya Pradesh, AIR 1981 SC 2030 : (1981) 4 SCC 471. The necessary legislative power for the purpose can be found in entry 33(b), List III, VII Schedule to the Constitution. 72 Supra, Chapter VIII; Jain, Cases, Chapter VII, 357-465. 73 Harekrishna Mahtab v. Chief Minister, Orissa, AIR 1971 Ori 175. 74 Abhay Kumar v. K. Srinivasan, AIR 1981 Del 381 [LNIND 1981 DEL 114] [LNIND 1981 DEL 114] [LNIND 1981 DEL 114]. 75 G. Misra v. Orissa Association of Sanskrit Learning & Culture, AIR 1971 Ori 212 [LNIND 1969 ORI 26] [LNIND 1969 ORI 26] [LNIND 1969 ORI 26]. 76 Harekrishna Mahtab v. Chief Minister, Orissa, AIR 1971 Ori 175. Also see, infra, Chapter XVI for discussion on Commissions of Inquiry; Jain, Cases, Chapter XVII . 77 Union of India v. W.N. Chadha, AIR 1993 SC 1082, at 1102 : 1993 Supp (4) SCC 260 : 1993 Crlj 859. 78 R. v. Criminal Injuries Compensation Board, ex p. Lain,, (1967) 2 QB 864 ; R. v. Criminal Injuries Comp. Board, ex P. Tong, (1977) 1 All ER 171, 175. 79 Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137]: (1977) 3 SCC 457; Also see, infra, Chapter XXIII under Government Contracts. Also, Jain, Cases, Chapter XXII. 80 See, infra, Chapter XXII, under Promissory Estoppel; Jain, Cases, Chapter XXI . 81 Ram Jawaya v. State of Punjab, AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]: 1955 (2) SCR 225, supra, note 55; Bennett Coleman & Co. v. U.O.I., AIR 1973 SC 106 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC 514]: (1972) 2 SCC 788 ; Chamkaur Singh v. State of Punjab, AIR 1991 P&H 26; supra, 609; also see, infra, Chapter XXIII ; Jain, CasesChapter XV. 82 State of Madhya Pradesh v. Bharat Singh, AIR 1967 SC 1170 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16]: 1967 (2) SCR 454 ; Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436]: 1963 (2) Crlj 329 : 1964 (1) SCR 332 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436] ; Kartar Singly v. Chief Engineer, Irrigation Punjab, AIR 1966 Punj 362. 83 State of Mysore v. Adiga, K.C., AIR 1976 SC 853 : (1976) 2 SCC 495. Also see, Art. 300A of the Indian Constituion. 84 Supra, Chapters IV & V. 85 Supra, Chapters IX & XIII. 86 Supra, this Chapter. Under Non-Statutory Functions. 87 Naraindas Indurkhya v. State of M.P., AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]: (1974) 4 SCC 788. 88 AIR 1967 SC 1836 [LNIND 1967 SC 427] [LNIND 1967 SC 427] [LNIND 1967 SC 427]: 1967 (3) SCR 525. 89 See, infra, Chapter XVIII on Art. 21. Also, Jain, Cases, Chapter XV. 90 See, infra, Chapter XVIII on this point. Also see, Jain, Cases, Chapter XV. 91 Per Subba Rao, C.J., AIR 1967 SC 1836 [LNIND 1967 SC 427] [LNIND 1967 SC 427] [LNIND 1967 SC 427]at 1845 : 1967 (2) SCR 525. 92 See, Maneka Gandhi v. U.O.I., which arose out of this statute : AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC

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25] [LNIND 1978 SC 25]: (1978) 1 SCC 248.; Jain, Cases, 522. 93 Jawaharlal Nehru University v. B.S. Narwal, AIR 1980 SC 1666 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND 1980 SC 366]: (1980) 4 SCC 480. 1 Radhey Shyam v. State of Rajasthan, AIR 1985 Raj 65 ; Sujeeth PJ Ferrao v. University of Mysore, AIR 1985 Kant 250 [LNIND 1984 KANT 320] [LNIND 1984 KANT 320] [LNIND 1984 KANT 320]. Also see, supra, Chapter IX, under Dismissal from Service. 2 See, under : 'Dismissal from Service', supra, Chapter IX. 3 U.O.I. v. M.E. Reddy, AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]: 1980 2 SCC 15 : 1980 (1) LLJ 7 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]; Jain, Cases, Chapter XIV, Sec. E; Baldev Raj v. Union of India, AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333]: (1980) 4 SCC 321 : 1980 (2) LLJ 459 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333] ; S.R. Venkataraman v. Union of India, AIR 1979 SC 49 : 1979 (1) LLJ 25 : (1979) 2 SCC 491. 4 Kailash Chandra Agarwal v. State of Madhya Pradesh, AIR 1987 SC 1871 : (1987) 3 SCC 513 : 1987 (5) SLR 171 ; Ram Ekbal Sharma v. State of Bihar, AIR 1990 SC 1368 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831]: (1990) 3 SCC 504 : 1990 (2) LLJ 601 [LNIND 1990 SC 269] [LNIND 1990 SC 269] [LNIND 1990 SC 269]. Also see, Anoop Jaiswal v. Govt. of India, AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]: (1984) 2 SCC 369 : 1984 (1) LLJ 337 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21] ; U.O.I. v. Shaik Ali, AIR 1990 SC 450 [LNIND 1989 SC 500] [LNIND 1989 SC 500] [LNIND 1989 SC 500]: 1989 Supp (2) SCC 771 : JT 1989 (4) SC 123 [LNIND 1989 SC 500] [LNIND 1989 SC 500] [LNIND 1989 SC 500]; Baikuntha Nath Das v. Chief District Medical Officer, Baripada, AIR 1992 SC 1020 [LNIND 1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176]: (1992) 2 SCC 299 : 1992 (1) LLJ 784 [LNIND 1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176]. Also see, supra, Chapter IX, under : 'Dismissal from Service'. 5 Bool Chand v. Chancellor, Kurukshetra University, AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967 SC 254], 294 : 1968 (2) LLJ 135. 6 AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]: 1986 Supp SCC 617; Jain, Cases, Chapter XIV, Sec. B. 7 R.S. Dass v. Union of India, AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]: 1986 Supp SCC 617, 605. 8 AIR 1988 SC 1069 [LNIND 1988 SC 653] [LNIND 1988 SC 653] [LNIND 1988 SC 653]: (1988) 2 SCC 242 ; Jain, Cases, Chapter XIV, Sec. L.; Also see, State of Sikkim v. Dorjee Tshering Bhutia, AIR 1991 SCC 1933 : (1991) 4 SCC 243. 9 Chowgule R.E. & C.Co. v. Govt. of Goa, AIR 1970 Goa 80. 10 See under : 'Property Rights', supra, Chapter IX. 11 M.P. Jain, Administrative Process under the Land Acquisition Act in ILI, Proceedings of the Seminar on Urbanisation and the Law in India, 173-210 (1968). 12 Spl. Land Acquisition Officer, Bombay v. Godrej & Boyce, AIR 1987 SC 2421 [LNIND 1987 SC 712] [LNIND 1987 SC 712] [LNIND 1987 SC 712], 2422 : (1988) 1 SCC 50 [LNIND 1987 SC 712] [LNIND 1987 SC 712] [LNIND 1987 SC 712]; Jain, Cases, Chapter XVI, Sec. H. 13 N.B. Khare v. Union of Territory of Delhi, AIR 1950 SC 211 [LNIND 1950 SC 30] [LNIND 1950 SC 30] [LNIND 1950 SC 30]: 1951 Crlj 550 : 1950 SCJ 328. 14 For discussion on this provision see, M.P. Jain, Indian Constitutional Law, 612-63O (1987). Besides NSA, preventive detention orders can also be issued by the government under the following statutes: The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974; The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980; The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 15 State of Madras v. C.P. Sarathy, AIR 1953 SC 53 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84], 57 : 1953 (1) LLJ 174 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84] : 1953 SCR 334 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84]; Western India Match Co. v. Its Workers, AIR 1970 SC 1205 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]: (1970) 1 SCC 225 : 1970 (2) LLJ 256 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4] ; Mahabir Jute Mills v. Shibban Lal Saxena, AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]: (1975) 2 SCC 818 : 1975 (2) LLJ 326 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239] ; A.S. Production Agencies v. Industrial Tribunal, AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]: (1979) 1 SCC 1; Jain, Cases, Chapter XIV, Section C; Ram Avtar Sharma v. State of Haryana, AIR 1985 SC 915 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122]. Jain, Cases, Chapter XIII, Sec. K. 16 AIR 1978 SC 1088 [LNIND 1978 SC 35] [LNIND 1978 SC 35] [LNIND 1978 SC 35]; Jain, Cases, Chapter XIII, Sec. K. 17 Infra, Chapter XVI.

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18 Supra, Chapter X; Jain, Cases, Chapter XVII, Sec. A(i). 19 Kesava Mills Ltd. v. Union of India, AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]: (1973) 1 SCC 380 ; Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]: (1981) 1 SCC 664. 20 K.P. Khaitan v. Union of India, AIR 1957 SC 676 [LNIND 1957 SC 49] [LNIND 1957 SC 49] [LNIND 1957 SC 49]: 1958 (2) LLJ 461 : 1957 SCR 1052; See, M.P. Jain, Administrative Process under the Essential Commodities Act, 1955 (I.L.I., 1964); Jain, Cases, Chapter I. 21 Infra, Chapter XVI; JAIN, Cases, Chapter XVII. 22 Infra, Chapter XVI; Jain, Cases, Chapter XVII. 23 Ramkrishna Dalmia v. S.R.. Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279. Also see, infra, Chapter XVI and Jain, Cases, Chapter XVII, Sec. B . 24 Supra, Chapter IX, under Licensing, notes 110-118. Also, Purtabpur Co. v. Cane Commr., Bihar, AIR 1970 SC 1896 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350]: (1969) 1 SCC 308; Jain, Cases, Chapter XIII, Sec. J. 25 Vellore Education Trust v. State of Andhra Pradesh, AIR 1988 SC 130 : 1987 Supp SCC 543; see infra, Chapter XVI . 26 See, infra, under Ombudsman, Maladministration etc. For relevant cases on this point see: Matajog Dubey v. H.C. Bhari, AIR 1956 SC 44 [LNIND 1955 SC 89] [LNIND 1955 SC 89] [LNIND 1955 SC 89]: 1956 Crlj 140 : (1955) 28 ITR 941 [LNIND 1955 SC 89] [LNIND 1955 SC 89] [LNIND 1955 SC 89] ; Pukhraj v. State of Rajasthan, AIR 1973 SC 2591 [LNIND 1973 SC 255] [LNIND 1973 SC 255] [LNIND 1973 SC 255]: (1973) 2 SCC 701 : 1973 Crlj 1795 ; Balbir Singh v. D.N. Kadian, AIR 1986 SC 345 [LNIND 1985 SC 356] [LNIND 1985 SC 356] [LNIND 1985 SC 356]: (1986) 1 SCC 410 : 1986 Crlj 314 ; Naga People's Movement of Human Rights v. U.O.I., (1998) 2 SCC 109 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511], 146 (para 52) : AIR 1998 SC 431 [LNIND 1997 SC 1511] [LNIND 1997 SC 1511] [LNIND 1997 SC 1511]. 27 Mayer Simon v. Advocate General, AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]and Also see, supra, under heading: 'Administrative Action to Give Jurisdiction to the Courts to Adjudicate', Chapter IX. 28 AIR 1986 SC 1375, 1403 : (1986) 1 SCC 264 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362] : (1986) 59 Comp Cas 548; Jain, Cases, Chapter XIV, Sec. E. 29 See, State of Uttar Pradesh v. Maharaja Dharmender Prasad Singh, AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]: (1989) 2 SCC 505; Jain, Cases, 597; Rama Debi v. Union of India, AIR 1988 Cal 39; Jain Cases, Chapter XIII, Sec. L. 30 See, for example, S. 110(1) of the Customs Act, 1962; S. 66 of the Gold (Control) Act, 1968; Narayanappa v. C.I.T., AIR 1967 SC 523 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427]: 1967 SCR 590: (1967) 63 ITR 219 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427] ; Collector, Central Excise v. L.K.N. Jewellers,, AIR 1972 All 231; see, infra, Chapter XVI and Jain, Cases, Chapter XVIII . 31 Delhi Administration v. V.C. Shukla, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179]: 1980 Supp SCC 249. 32 Bihar S.E. Board v. Subhas Chandra, AIR 1970 SC 1269 [LNIND 1970 SC 117] [LNIND 1970 SC 117] [LNIND 1970 SC 117]: (1970) 1 SCC 648; Jain, Cases, 622; Sanjay Kumar Ram Council of Higher Secondary Education, Orissa, AIR 1993 Ori 81 [LNIND 1992 ORI 12] [LNIND 1992 ORI 12] [LNIND 1992 ORI 12]. 33 Mohd. Ibrahim v. S.T.A., Tribunal, Madras, AIR 1970 SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251]: (1970) 2 SCC 233. 34 Narayan Das v. State of Madhya Pradesh, AIR 1972 SC 2086 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]: (1977) 3 SCC 676 : 1972 Crlj 1323. 35 State of Uttar Pradesh v. Lalai Singh, AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333]: (1976) 4 SCC 213 : 1977 Crlj 186; Jain, Cases, Chapter XVI, Sec. C. 36 AIR 1989 SC 653 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586]: (1989) 1 SCC 204: 1989 Crlj 941. 37 Kehar Singh v. Union of India, (1989) 1 SCC 204 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586] at 217 : AIR 1989 SC 653 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586]. 38 Vijay Kumar v. Union of India, AIR 1988 SC 934 [LNIND 1988 SC 141] [LNIND 1988 SC 141] [LNIND 1988 SC 141]: (1988) 2 SCC 57 : 1988 Crlj 951. 39 Rajendra Prasad Agarwal v. Union of India,, AIR 1993 All 258 [LNIND 1993 ALL 213] [LNIND 1993 ALL 213] [LNIND 1993 ALL 213].

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40 State of Orissa v. Bimal Kumar Mohanty, AIR 1994 SC 2296 : (1994) 4 SCC 126 : 1995 (1) LLJ 568 ; Bihar S.E. Board v. Subhas Chandra, AIR 1970 SC 1269 [LNIND 1970 SC 117] [LNIND 1970 SC 117] [LNIND 1970 SC 117]: (1970) 1 SCC 648 ; Sanjay Kumar Ram v. Council of Higher Secondary Education, Orissa, AIR 1993 Ori 81 [LNIND 1992 ORI 12] [LNIND 1992 ORI 12] [LNIND 1992 ORI 12]. 41 AIR 1993 Raj 88, Also see, ( Lewis v. Heffer, 1978) 3 All ER 354 ; Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465. 42 Union of India v. W.N. Chadha, AIR 1993 SC 1082 : 1993 Crlj 859 : 1993 Supp (4) SCC 260. The Supreme Court referred to the following English cases in support of this view : Wiseman v. Borneman,, (1971) AC 297 ; Pearlberg v. Earth, (1972)1 WLR 534; Regina v. Barnet and Camden Rent Tribunal, ex.p. Frey Investments Ltd., (1977) 2 QBD 342 ; Herring v. Templeman, (1973) 3 All ER 569 ; R. v. Peterborough Justice, ex.p Hicks, (1977) 1 WLR 1371 ; Norwest Holst Ltd. v. Secretary of State for Trade , (1978) 1 Chapter Div. See also, Indian Explosives Ltd. (Fertiliser Div.) v. State of Uttar Pradesh (1981) 2 Lab LJ 159. Also, infra, Chapter XVI. 43 Such powers are characterised as "summary powers" is the United States. According to Freund, these powers are exercised "to apply compulsion or force against person or property to effectuate a legal purpose, without a judicial warrant to authorise such action." Further, "In Anglo-American jurisprudence such a power constitutes an anomaly, since normally the way to compulsion leads through the courts." Administrative powers over Persons and Property 196 (1928). Also Hart, An Introduction to Administrative Law 548; De Smith, Judicial Review of Administrative Action, 216-19 (1980). 44 See M.P. Jain, Indian Constitutional Law, 685-86, 850 (1987). 45 Siddhartha v. Calcutta Municipality, AIR 1985 Cal 153 [LNIND 1984 CAL 196] [LNIND 1984 CAL 196] [LNIND 1984 CAL 196]. 46 S. 10(7). 47 S. 10(9). 48 S. 11. 49 S. 25. 50 S. 12(1). 51 Ajay Kumar Ghose v. Calcutta Corporation, AIR 1956 Cal 410 [LNIND 1955 CAL 143] [LNIND 1955 CAL 143] [LNIND 1955 CAL 143], 413. 52 See, infra, Vol. II, under Judicial Control, for a discussion on the scope of Art. 226. 53 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 [LNIND 1961 SC 14] [LNIND 1961 SC 14] [LNIND 1961 SC 14]: 1961 (2) Crlj 16 : 1961 (3) SCR 423 [LNIND 1961 SC 14] [LNIND 1961 SC 14] [LNIND 1961 SC 14] ; State of Bihar v. K.K. Mistra, AIR 1971 SC 1667 [LNIND 1969 SC 441] [LNIND 1969 SC 441] [LNIND 1969 SC 441]: (1969) 3 SCC 337; Madhu Limaye v. S.D.M., Monghyr, AIR 1971 SC 2486 [LNIND 1970 SC 501] [LNIND 1970 SC 501] [LNIND 1970 SC 501]: (1970) 3 SCC 746 : 1971 Crlj 1720. Also see, infra, under Fundamental Rights and Discretionary Powers, Chapter XVIII. For cases in this area, see, Jain, Cases, Chapter XV. 54 Gulam Abbas v. State of Uttar Pradesh, AIR 1981 SC 2198 [LNIND 1981 SC 425] [LNIND 1981 SC 425] [LNIND 1981 SC 425], 2224 : 1981 Crlj 1835 : (1982) 1 SCC 71 [LNIND 1981 SC 425] [LNIND 1981 SC 425] [LNIND 1981 SC 425]; Jain, Cases, Chapter XIV, Sec. A. 55 As will be discussed later, under Art. 32, no writ petition lies in the Supreme Court challenging a quasi-judicial order as no fundamental right is said to be infringed by such an order, see, Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 [LNIND 1962 SC 584] [LNIND 1962 SC 584] [LNIND 1962 SC 584]: 1963 (1) SCR 778 ; Pioneer Traders v. C.C.I. & E, AIR 1963 SC 734 [LNIND 1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319]: 1964 (1) SCJ 595 : (1983) 13 ELT 1376 ; N.S. Mirajkar v. State of Maharashtra, AIR 1967 SC 1 [LNIND 1966 SC 74] [LNIND 1966 SC 74] [LNIND 1966 SC 74]: 1966 (3) SCR 744. See infra, Vol. II, under Judicial Control. 56 AIR 1996 SC 872 : (1996) 1 SCC 623. 57 State of W.B. v. Ajay Kumar Das, 1995 Supp (3) SCC 681. 58 J.K. Sythetics Ltd. v. Collector of Central Excise, (1996) 6 SCC 92 : AIR 1996 SC 3527 : 1996 (7) JT 674. See also ( Shree Krishna Gyanoday Sugar Ltd. v. State of Bihar, 1996) 10 SCC 11 [LNIND 1996 SC 1260] [LNIND 1996 SC 1260] [LNIND 1996 SC 1260] : AIR 1996 SC 2610 [LNIND 1996 SC 1260] [LNIND 1996 SC 1260] [LNIND 1996 SC 1260]; Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd., AIR 1996 SC 646 [LNIND 1996 SC 22] [LNIND 1996 SC 22] [LNIND 1996 SC 22]: (1996) 1 SCC 642; State of Bihar v. Ranchi Timber Traders Association, AIR 1996 SC 2774 [LNIND 1996 SC 1098] [LNIND 1996 SC 1098] [LNIND 1996 SC 1098]: (1996) 5 SCC 276. 59 Kantaprasad D. Patel v. Municipal Corporation of Greater Bombay, (1996) 8 SCC 755 (paras 3 and 4).

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60 Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618 [LNIND 2005 SC 199] [LNIND 2005 SC 199] [LNIND 2005 SC 199], 627-28 (para 12) : AIR 2005 SC 2775 [LNIND 2005 SC 199] [LNIND 2005 SC 199] [LNIND 2005 SC 199]. 61 Financial Commissioner (Taxation), Punjab v. Harbhajan Singh, (1996) 9 SCC 281 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199], 283 (para 5) : AIR 1996 SC 3287 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199], reversing Harbhajan Singh v. Financial Commissioner (Taxation), Punjab, AIR 1977 P&H 237, relying on Gulab Ajwani v. Saraswati Bai, (1977) 3 SCC 581 : AIR 1978 SC 326. 62 G. Srinivas v. Govt. of A.P., (2005) 13 SCC 712 [LNIND 2005 SC 715] [LNIND 2005 SC 715] [LNIND 2005 SC 715], 718 (para 20). 63 R. Sulochana Devi v. D.M. Sujatha, (2005) 9 SCC 335 [LNIND 2004 SC 1027] [LNIND 2004 SC 1027] [LNIND 2004 SC 1027], 347 (para 20). See also Chief of Marketing (Marketing Division), Coal India Ltd. v. Mewat Chemicals & Tiny SSI Coal Pulversing Unit, (2004) 4 SCC 146 [LNIND 2004 SC 411] [LNIND 2004 SC 411] [LNIND 2004 SC 411], 156 (para 15) : AIR 2004 SC 2640 [LNIND 2004 SC 411] [LNIND 2004 SC 411] [LNIND 2004 SC 411]. 64 Chief Executive Officer, Zilla Parishad, Beed v. Syed Yasin, AIR 1996 SC 1994 : (1996) 9 SCC 275. 65 AIR 1996 SC 2121 [LNIND 1996 SC 966] [LNIND 1996 SC 966] [LNIND 1996 SC 966]: (1996) 5 SCC 83. 66 (2001) 1 SCC 582 [LNIND 2000 SC 1673] [LNIND 2000 SC 1673] [LNIND 2000 SC 1673], 585 (para 7) : AIR 2000 SC 3678 [LNIND 2000 SC 1673] [LNIND 2000 SC 1673] [LNIND 2000 SC 1673]. 67 1995 Supp (4) SCC 647. 68 D. Ganesh Rao Patnaik v. State of Jharkhand, (2005) 8 SCC 454 [LNIND 2005 SC 798] [LNIND 2005 SC 798] [LNIND 2005 SC 798], 472 (para 25) : AIR 2005 SC 4321 [LNIND 2005 SC 798] [LNIND 2005 SC 798] [LNIND 2005 SC 798]. 69 State of Karnataka v. All India Manufacturers Organisation, (2006) 4 SCC 683 [LNIND 2006 SC 286] [LNIND 2006 SC 286] [LNIND 2006 SC 286], 708-09 (para 66), relying on State of U.P. v. Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 and State of Haryana v. State of Punjab, (2002) 2 SCC 507 [LNIND 2002 SC 34] [LNIND 2002 SC 34] [LNIND 2002 SC 34] : AIR 2002 SC 685 [LNIND 2002 SC 34] [LNIND 2002 SC 34] [LNIND 2002 SC 34]. 70 Union Territory, Chandigarh Administration v. Managing Society Goswami, GDSDC, AIR 1996 SC 1759 [LNIND 1996 SC 2253] [LNIND 1996 SC 2253] [LNIND 1996 SC 2253]: (1996) 7 SCC 665. 71 (1996) 8 SCC 461, 462 (paras 2 and 3). 72 Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary, (2006) 4 SCC 303 [LNIND 2006 SC 206] [LNIND 2006 SC 206] [LNIND 2006 SC 206], 317-19 (para 29, 30 and 36). 73 Abhimanyu Prasad v. State of U.P., (2003) 12 SCC 719, 722 (paras 10-12). 74 Supra, Chapter VI. 75 Supra, Chapter VI. 76 AIR 1986 SC 803 [LNIND 1985 SC 363] [LNIND 1985 SC 363] [LNIND 1985 SC 363]: (1986) 1 SCC 566; Jain, Cases, Chapter XIV, Sec. F. Also see, Chapter XIV, notes 192a-197. 77 Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108]: 1962 Supp (3) SCR 713; supra, Chapter XIV, notes 159 and 194; Jain, Cases, Chapter XX. Also see, State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270]; Bahadursingh Lakhubhai Gohil v. Jagdishbhai M. Kamalia, (2004) 2 SCC 65, 74 (para 22) : AIR 2004 SC 1159 : 1961 (2) SCR 371. State of Kerala v. A. Lakshmikutty,, AIR 1978 SC 331 : (1986) 4 SCC 632 : 1987 (1) SCR 17. For communication of a quasi-judicial order, See, under heading : 'Communication of Adjudicatory order', supra, Chapter XIV. 78 Serajuddin & Co. v. State of Orissa, AIR 1974 Cal 296 [LNIND 1973 CAL 227] [LNIND 1973 CAL 227] [LNIND 1973 CAL 227]; Jain, Cases, Chapter XI, 931. 79 State of Gujarat v. Panch of Nani Hamam's Pole, AIR 1986 SC 803 [LNIND 1985 SC 363] [LNIND 1985 SC 363] [LNIND 1985 SC 363]: (1986) 1 SCC 566. 80 (1963) 1 All ER 223 (PC); Jain, Cases, Chapter XIV, Sec. F. 81 AIR 1970 SC 214 [LNIND 1969 SC 371] [LNIND 1969 SC 371] [LNIND 1969 SC 371]: (1969) 3 SCC 28 : 1969 SLR 833 [LNIND 1969 SC 371] [LNIND 1969 SC 371] [LNIND 1969 SC 371]; Jain, Cases, Chapter XIV, Sec. F. 82 State of Punjab v. Balbir Singh, AIR 1977 SC 635 : 1976 (2) LLJ 4 : (1976) 3 SCC 242 [LNIND 1975 SC 383] [LNIND 1975 SC 383] [LNIND 1975 SC 383]; Jain, Cases, Chapter XIV, Section F. 83 State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 [LNIND 1966 SC 3] [LNIND 1966 SC 3] [LNIND 1966 SC 3]:

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1966 (2) LLJ 188; Jain, Cases, Chapter XIV, Sec. F, where an order of reversion was involved.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XVI SOME TYPICAL ADMINISTRATIVE POWERS AND PROCEDURES

CHAPTER XVI SOME TYPICAL ADMINISTRATIVE POWERS AND PROCEDURES 1. INTRODUCTORY In this Chapter we take note of some specific sundry but typical powers, enjoyed by the Administration. The powers discussed here are used very widely. One underlying purpose of these powers is to enable the Administration to gather information. Information of varied types is usually needed by administrative authorities to better discharge their assigned functions. To this end, statutes confer powers on authorities enabling them inter alia to hold inquiries and investigations, to search and seize, to require filing of reports and returns, to inspect, to summon witnesses and compel production of documents. Some statutes, like the Income Tax Act, 1961, confer all these powers;1 some like the Commissions of Inquiry Act, 1952, confer some of these powers2 and some statutes confer only one type of power. What powers are conferred by a statute on the authorities concerned depends on the terms of the statute. A statute will confer such of these powers as may seem to be necessary by its objectives and the exigencies of the situation. These powers while basically informational as regards the Administration, are, nevertheless, coercive in nature as far as the individual against whom these powers are used is concerned. For example, When an inquiry officer is appointed to enquire into the affairs of an individual, the primary aim of the Administration may be to find out whether there have been any lapses in his conduct of his affairs, but for the individual concerned, it may cause great harassment and put him in jeopardy; his reputation may be tarnished by the mere appiontment of the inquiry officer; his business may suffer as a consequence thereof; he may have to spend large sums of money in defending his actions before the inquiry officer and, ultimately, he becomes vulnerable as action may be taken against him if any lapse or fault or illegality is found as a result of the inquiry. Search is much more coercive in nature and vitally affects the individual's privacy. It is axiomatic that an administrative authority can employ only such coercive processes as the statute in question sanctions. No coercive method can be employed against any person without the authority of law.3 Thus, if an administrative body does not have legal power to compel attendance of witnesses or production of documents then it can only issue letters requesting persons to appear and/or produce documents, and it is then open to the persons so requested to comply with the request or not.4 The powers discussed in this Chapter are of great consequence in the modern administrative process. It is necessary that these powers be subject to proper safeguards so that they are not misused or abused. 2. INQUIRIES & INVESTIGATIONS In many situations, before the Administration takes any action, it may conduct an inquiry or investigation into some circumstances or state of affairs. The terms 'inquiry' and 'investigation' are frequently used interchangeably in the Indian statutes as there is no generic difference between the two. Interpreted broadly the term governmental investigation may include each and every attempt on the part of a governmental agency to secure any information--even research and investigations of a scientific, commercial, agricultural, or of similar character which are constantly being conducted by various governmental agencies. Further, attempts by the police to solve particular crimes may fall under the heading 'Investigation'. But the term is being used here not in such a broad sense but comparatively in a restrictive

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sense. Administrative Law is concerned primarily with administrative investigations and public inquiries, and not scientific, commercial, agricultural or inquires of similar character. Thus, investigations conducted by Bureau of Economics and Statistics, Planning Commission, Department of Industries and Commerce, Department of Labour and Employment, and the like, are excluded from the scope of our discussion. To enable the Administration to discharge effectively and efficiently the multifarious functions entrusted to it in today's welfare state, the Administration needs relevant information, facts, data relating to various matters. As the Administration has expanded and intensified, the quest for facts and more facts has gained momentum and has seemingly become an irresistible force. The modern Administration accordingly exercises broad powers of conducting investigations and inquires into various matters. The primary purpose of this technique is to collect information required by an agency with a view to decide upon a further course of action to meet a given situation, or to find correctives to a given problem. In the context of today's complicated socioeconomic life, the Administration has come to depend more and more on ascertainment of facts. It is right to say that an action taken in ignorance of full facts may not only fail to correct the given situation, but may even worsen it and create more problems. The policymaker or the administrator can initiate effective remedial measures to deal with specific problems only when he is in full possession of relevant information, facts and figures, and to collect these, inquiries and investigations become an inevitable tool in the hands of the Administrators. Besides, an Administrator needs to resort to varied other compulsory processes to get information from the individuals. The information so collected may be used by the Administration to formulate policies; it may constitute as the basis for executive action or legislative action by way of framing new legislation or amending old laws. The factual information or data collected by the Administration may be used by it for purposes of rulemaking, licensing, adjudication of disputes, law enforcement, supervision etc. Besides, an inquiry may be undertaken to unearth evidence for some suspected breach of law. If any deviation from law is found, prosecution of the concerned person may be initiated on the basis of the evidence received during the course of the inquiry. Inquiries may also be undertaken to determine the causes of some specific happening or event or calamity which may have caused public disquiet, such as, a serious air or rail accident, or military deficiencies, industrial disputes or business depression, or a matter of administrative lapse like police firing. The Administration may hold enquiries in certain cases to gauge public reaction to any proposed policy, scheme or proposal sponsored or to be sponsored by the government. At times, the Administration may hold an inquiry to give an opportunity to ventilate their grievances and objections by interests affected by a particular policy. This is a facet of democratisation of policy making by the government as well as the concept of open government.5 At times, information may be sought to be collected for "purposes no more specific than illuminating obscure areas to find out what if anything should be done."6 There are therefore myriad of circumstances when the Administration may seek to resort to inquiries. Inquiries constitute a significant machinery of government; they assist the functioning of government. While the technique of inquiry may have several advantages, it also has a few disadvantages particularly when an inquiry is directed against a specific person. The use of a compulsory process by the Administration to collect information from an individual interferes with his freedom. Even when an investigation may not result in any followup action subsequently, and may not subject the individual concerned to any liability, nevertheless, the initiation of an inquiry by itself may have serious consequences for him as he may be subjected to a good deal of physical inconvenience, mental agony and expenses; his reputation and business may suffer adversely in the process. There is also the prospect that as a result of the inquiry some further action may be taken against him. It is therefore necessary to incorporate some safeguards in the administrative technique of inquiry and investigation so as to reconcile administrative exigencies of holding an inquiry into the affairs of an individual with his interests and rights. It is necessary to think of proper safeguards subject to which only the power of inquiry may be invoked by the Administration. There are many variants of the inquiry procedures. An inquiry may be launched administratively, or under the power of inquiry given by a statute. In the latter case, the procedure for holding the inquiry, its scope and purpose are all determined by the terms of the specific statute under which the inquiry is being held. Provisions in this regard differ from statute to statute. (a) Administrative Inquiries

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At times, the government may initiate inquiries on an informal and ad hoc basis under its administrative powers without any statutory authority.7 As for example, in September 1966, the Government of India appointed a committee, known as the Sarkar Committee, to probe into the frauds and irregularities committed by government employees and private persons in the matter of import and export of iron and steel, and to recommend departmental, civil or criminal action against the persons involved. At times, the Government may institute such an inquiry to study a problem in depth and collect relevant data with a view to formulate policies and undertake legislation to meet a situation of public importance. For example, in 1957, the Government of India constituted an ad hoc Committee to suggest amendments in the Companies Act.8 Such a committee functions under the handicap of not having any coercive powers to compel attendance of witnesses and production of documents or other evidence, or take evidence on oath. However, such a power may not be necessary when most of the relevant evidence is available in the form of documents with the department concerned. Also, the government servants may not refuse to cooperate with such a committee in their own interests. An informal inquiry may be preferable in some situations to a formal inquiry under the Commissions of Inquiry Act for several reasons.9 It can be held in private and in strict confidence, without much fanfare, practically outside the public gaze, and away from any publicity. The witnesses may feel freer to give evidence before such a committee than they would be otherwise. Under the Commissions of Inquiry Act, the inquiries are usually held in public. An informal committee may recommend action by way of redress or punishment against the individuals concerned, but a commission of inquiry under the Act may not be able to do so.10 Finally, while the Act gives immunity to statements made by a person testifying before the commission from being used against him in any civil or criminal proceedings, and this may frustrate the ultimate objective of the government of bringing civil or criminal action against the wrongdoers, no such immunity is available when an inquiry is conducted on an ad hoc basis. On the other hand, there may be doubt in the public mind about the credibility of such enquiries and there may be moments when there may arise a nationwide crisis of confidence in the integrity of public life or about other matters of vital public importance, and to restore public confidence and maintain a high standard of public life, an open public inquiry may become a necessity as people may not have enough confidence in an administrative inquiry being fair and impartial, especially when it is conducted by a government official. For such a purpose, and in such a situation, recourse may be had to the machinery provided by the Commission of Inquiry Act, 1952(CI Act).11 Even when an inquiry body is appointed by the government under its administrative powers, S. 11 of the Commissions of Inquiry Act empowers the government to apply all or any of the provisions of the Act to the body concerned. S. 11says that where any inquiry authority is appointed by the government (other than a commission under S. 3, CI Act), to make an inquiry into a definite matter of public importance, the government may by notification in the official gazette apply any provision of this Act to that authority. On issue of such a notification, "the authority shall be deemed to be a commission appointed under S. 3of this Act."12 Such a course of action was adopted in the case of the Newspaper Inquiry Fact Finding Committee. To begin with, the committee was appointed in 1972 administratively to inquire into the "economics of the newspaper industry." The terms of reference of the committee were inter alia to ascertain the different elements of the total revenue earned by the newspapers; and to ascertain all the elements of the cost of production of the daily newspapers. The committee issued a detailed questionnaire to all the daily newspapers in the country but the response thereto was very poor. The committee had no power to direct any one to answer the questionnaire. The Government therefore came to the conclusion that the various provisions of the CI Act be made applicable to the committee. Thus, as the committee felt difficulties in collecting the necessary information on a voluntary basis, the Government extended the provsions of the CI Act to it.13 In connection with administrative inquiries, reference may also be made to another case, viz., Prafulla Chandra v. State.14 A fire incident on 19/3/84 at Paradip resulted in huge destruction. The State Government appointed the Additional Chief Secretary to the Orissa Government as an inquiry authority to inquire into the incident. This was done administratively. Later, the inquiry authority was conferred with certain specific powers under Ss. 5(1) and 11of the CI Act.15 The inquiry authority made a report putting the responsibility for the incident on certain superior police officers (without specifically naming them) and a few private individuals. The Government signified its acceptance of the report. The affected persons moved writ petitions

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in the High Court for quashing the findings/observations made in the report on several grounds, inter alia: the findings were based on no materials and there was violation of the principles of natural justice. The Court ruled that although the inquiry report by itself had no force or any penal effect yet the petitioners did suffer an injury by virtue of the findings and recommendations of the inquiry officer. The Court ruled that the inquiry officer was bound to follow the principles of natural justice. The notification appointing the inquiry authority itself contained a mandate that the principles of natural justice were to be complied with. The Court accordingly observed : "Though it was a fact finding body and did not perform any judicial function and the findings arrived at by such commission are not enforceable proprio viqore and it was to determine and regulate its own procedure of enquiry and there was no lis nor any determination of lis, it has a duty to act following the principles of natural justice... which duty had been cast upon it by the notification itself."

The Court found that there was failure of natural justice by the inquiry authority in the instant case as it did not give any opportunity to the petitioners for explaining the materials if any found against them. On this ground, therefore, the adverse comments/observations made against the petitioners were liable to be quashed. The Court ruled further that the adverse findings of the inquiry authority were based on "presumption which lacks a reasonable foundation from the materials on record." A finding of fact based on no evidence can be quashed by the Court by issuing a writ.16 It may be pointed out that though in its opinion the Court cited the fact that the notification appointing the inquiry authority required it to apply natural justice as an element to hold that the inquiry authority was bound to apply natural justice before making any adverse observations against any person, this is not an essential factor. Even if the notification were silent on this point, on general principles, the authority would still have been bound to apply natural justice.17 In support of this proposition, reference may be made to Pergamon Press.18 The respondent obtained a scheduled caste certificate and on this basis he was selected for government service. A complaint was made against him that he belonged to a backward caste but not to a scheduled caste. Consequently, the government appointed an inquiry officer to enquire into the respondent's social status and make a report to the government. The order appointing the inquiry officer specifically directed him that he should give notice of the inquiry to the respondent and that he "should record the statements of the persons in his presence." The inquiry officer examined several persons, and recorded their statements, without giving any notice to the respondent. The Supreme Court held that the inquiry was not fair and proper as the inquiry officer violated the terms of the inquiry. The Court directed that a fresh inquiry be held and that the inquiry officer must observe the conditions in the terms of the enquiry as stated above and "must also see to it that the principles of natural justice and fairplay are observed."19 On the other hand, in Harekrishna Mehtab v. Chief Minister, Orissa,20 certain allegations were made against the ex-Chief Minister of Orissa. The Government of Orissa by an administrative order appointed a retired Supreme Court judge, Shri Mudholkar, to go into the allegations and report whether there was any prima facie case for further enquiry by a commission of inquiry. Mudholkar reported that on a few allegations, a further inquiry ought to be held by a commission. Mahtab moved for a writ of certiorari to quash this report on several grounds,21inter alia, that the principles of natural justice had not been observed. The first important question was whether a writ could at all be issued against Mudholkar who was not appointed to enquire under any statutory provision. The High Court held, basing itself on R. v. Criminal Injuries Compensation Board,22 that a writ of certiorari could be issued against a non-statutory authority as well. The State government had appointed Mudholkar in exercise of its executive power to assist it in arriving at its own satisfaction as required under Section 3of the Commission of Inquiry Act.23 The High Court was clearly of the opinion that although Mudholkar did not constitute a statutory body, a writ of certiorari could issue against his report if other conditions were fulfilled. The Court also took the view that the inquiry in the instant case being an inquiry by an inquiry officer appointed by the Government in the exercise of its executive power under Art. 162of the Constitution24 was merely an administrative inquiry for he was only to report whether there was a prima facie case for further inquiry by a commission of inquiry under the Commissions of Inquiry Act. In the instant case, the inquiry officer was not required to determine the matters conclusively and he had no power

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to compel production of evidence. The evidence before him was not tested by crossexamination, nor was it given on oath. He was not required by the order appointing him to act in a quasi-judicial manner. He was required to act confidentially. It was open to him to examine or not any witness or take any evidence. His function mainly was merely to examine the available materials to see if a prima facie case was made out for appointment of a commission of inquiry which itself would thoroughly go into all the allegations by following the principles of natural justice. The inquiry report (did not affect any interest or right of the petitioner. The formation of the opinion by the State Government under S. 3of the C.I. Act as regards the appointment of a commission is a subjective matter.25 The inquiry which the government may undertake to reach the ultimate decision whether to appoint a commission or not is not a quasi-judicial inquiry in which any party has a right of being heard. The State Government appointed the inquiry officer to assist it to arrive at its own satisfaction. Therefore, the Court held, the inquiry by the inquiry officer also was purely administrative and not quasi-judicial in character. The Court also ruled that the inquiry officer in the instant case had acted in a fair and just manner. In Mahtab, the inquiry officer was not deciding any substantive issue on merits. He was merely to assess whether there existed any prima facie case against the ex-Chief Minister so that a formal inquiry may be launched against him. The concerned person would undoubtedly get an opportunity of being heard at the inquiry. This approach has now been sanctioned by the Supreme Court in Union of India v. W.N. Chadha.26 The Supreme Court has ruled in Chadha that a hearing cannot be claimed by the concerned person at the stage of investigation, i.e., when the investigating officer is not deciding any matter but is merely collecting evidence to ascertain whether a prima facie case is made out against him or not, and a full inquiry is to take place thereafter when the concerned person would have an opportunity of being heard. The Supreme Court held that, where the provisions in the Standing Order enabled the Indian Oil Corporation to dismiss its employee without holding any domestic enquiry where he was convicted by a Criminal Court, the dismissal on such ground was valid.27 (b) Statutory Inquiries A number of statutes confer powers on the Administration to undertake inquiries and investigations in specific situations and for specific purposes. A host of purposes are served by the administrative process of statutory inquiries. For example, under S. Section 54 of the Dentists Act, 1948, the Central Government may appoint a commission of inquiry if it is of the opinion that the Dental Council is not complying with the provisions of the Act. The commission is to consist of three persons--two to be appointed by the Government, of whom one is to be a High Court Judge, and one is to be appointed by the Council itself. The Commission inquires in a summary manner and reports to the Central Government on the matters referred to it, together with such remedies, if any, as the commission may like to recommend. The Central Government may accept the report or remit it to the commission for modification or reconsideration. The Income Tax Act, 1961, contains an elaborate scheme of investigations and inquiries for the purpose primarily of helping in the process of lawenforcement by enabling the tax authorities to track down cases of tax evasion, and, subsequently, to take the necessary followup action, to the extent, if necessary, of prosecuting the defaulting tax payer depending upon the state of material collected against him.28 At times, an investigation any be launched as a form of postmortem after some definite event has taken place, e.g., accidents involving railways,29 motor vehicles,30 ships,31 and aircrafts.32 The aim of such an inquiry is to find out causes of an accident, to ascertain whether there has been negligence and incompetence on the part of the staff, or violation of the standards fixed by law, or defects in the construction and maintenance of the equipment and to suggest steps so as to prevent the occurrence of mishaps and accidents in future, and generally to fix responsibility for the accident. The report of the investigation may lead to taking action against the defaulting staff, taking of precautionary measures to avoid such accidents in future, amendment of the relevant law, etc. For example, S s. 33 and 34 of the Inland Vessels Act, 1917, authorises the State Government to appoint a court of investigation if any inland steam vessel has been wrecked, abandoned or materially damaged or has caused loss or material damage to any other vessel. The court making investigation may inquire into incompetency or misconduct of the master, engineer or engine driver, wrongful act of default on his part causing any wreck, abandonment, damage, casualty or loss. The

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type of inquiries mentioned above may be characterised as investigatory inquiries. In the modern political thinking of a socialist pattern of society and welfare state in India, the area of private enterprise has come to be severely controlled and regulated by the Administration.33 One of the techniques used for the purpose of regulation of, and supervision over, private commercial activities is that of investigation and inquiries. Powers for this purpose have been conferred on the Administration under various statutes. Under the Industries (Development and Regulation) Act, 1951, the government is authorised to launch an inquiry into the affairs of an undertaking falling in the list of scheduled industries. The government can exercise this power in certain specified circumstances only, viz., where it is of the opinion that there has been or is likely to be substantial fall in the volume of production of the undertaking in question, deterioration in the quality of a product, rise in prices of a product, or where the undertaking in question is being managed in a manner highly prejudicial to public interest.34 Following the completion of the inquiry, the government may give such directions to the industrial undertaking as it may deem appropriate in the circumstances,35 or assume management of the undertaking for a specified period.36 Under the Banking Companies Act, 1949, the Reserve Bank of India may investigate the affairs of a banking company, and if the Central Government, after receiving the report of the investigation, is satisfied that the affairs of the company are being carried on in a manner detrimental to the interests of the depositors, it may prohibit the company from receiving fresh deposits or direct the Reserve Bank to apply for winding up of the company.37 The Indian Companies Act, 1956, has several specific and elaborate provisions regarding investigations into the affairs of companies.38 The government may order an investigation into the affairs of a company on the application of the company's shareholders. On receipt of a report from the Registrar of Companies, or on a special resolution being passed by the company, or on the order of a court declaring that the affairs of the company ought to be investigated by an inspector appointed by the Central Government. under S. Section 237of the Indian Companies Act, 1956, the Central Government may appoint one or more inspectors to investigate the affairs of a company, inter alia, if in the opinion of the government there are circumstances suggesting that the "business of the company is being conducted with intent to defraud its creditors, members or any other person, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members." On the basis of the investigation report, the government may take any further action, e.g., it may prosecute the guilty persons in a court, recover damages on behalf of the company by resorting to courtproceedings or take other appropriate action under the Companies Act as provided therein.39 Describing the nature of this investigation, the Supreme Court has observed : "The investigation carried on by the inspectors is no more than the work of a fact finding commission. . . At the commencement of the inquiry and indeed throughout its proceedings, there is no accused person, no accuser and no accusation against any one that he has committed an offence".40

The Power of the Central Government to order an investigation in the affairs of a company is discretionary and not obligatory. The power is neither judicial nor quasi-judicial.41 under S. Section 107, Customs Act, 1962, any customs officer, empowered by the collector of customs for the purpose, may, during the course of an inquiry in connection with smuggling of goods, examine any person acquainted with the facts and circumstances of the case. Further, under S. 108, any gazetted customs officer has power to summon any person whose attendance he considers necessary to give evidence in any enquiry which such officer is making in connection with the smuggling of any goods. Such an inquiry "shall be deemed to be a judicial proceeding within the meaning of S. 193 and S. 228 of the Indian Penal Code." This means that a person summoned tinder S. 108is bound to appear and state the truth when giving evidence. If he does not answer he would render himself liable to be prosecuted under S. 228, IPC. If, on the other hand, he answers and gives false evidence he would be liable to be prosecuted under S. 193, IPC, for giving false evidence in a judicial inquiry.42 A customs officer is not regarded as a police officer and statements made before him by a person during the course of an inquiry under Ss. 107 and 108, Customs Act, arc not covered by Ss. 24 and 25of the Evidence Act.43 The person against whom an inquiry is held is not regarded as an accused. Not much purpose would be served by multiplying examples of statutory provisions authorising the

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Administration to conduct inquiries and investigations as there is an abundance of them in the statute book.44 A few general observations may, however, be made at this stage on the basis of the abovementioned illustrative clauses. Some of the provisions mention very vague and inarticulate grounds to initiate investigatory proceedings, e.g., the Industries (Development and Regulation) Act specifies such a vague ground as "the undertaking being managed in a manner highly prejudicial to public interest." Investigations intiated on vague or flimsy grounds in the hope of finding something incriminating against the individual concerned are destructive of individual liberty and may have serious impact on him and his affairs. It is necessary, therefore, to lay down in the statute the circumstances when the Administration may initiate an inquiry. But much of the purpose of doing so would be frustrated if the grounds for initiating inquiries are laid down in broad or vague language. Where the statute specifies in somewhat definite terms the circumstances when an inquiry can be ordered, it may be possible for the courts to quash an inquiry on the ground that the Administration has not exercised its discretion properly. Reference may be made here in some detail to S. 237(b)of the Companies Act. The discretionary power of the Company Law Board to order an investigation into the affairs of a company is subject to all those restraints of Administrative Law as apply to any other discretionary power.45 Quashing the order of investigation into the affairs of Barium Chemicals passed by the Company Law Board under S. 237(b)of the Companies Act, the Supreme Court pointed out that there existed no materials suggestive of an intent to defraud, or a fraudulent or unlawful purpose, or misfeasance or misconduct towards the company or its members by the management. Thus, there was no material indicating the circumstances suggestive of the things set out in S. 237(b). The allegation of mala fides was however rejected by the Court.46 The Supreme Court, in Rohtas Industries Ltd, v. S.D. Agarwal,47 with reference to the appointment of an inspector to investigate the affairs of a company under S. 237(b)of the Companies Act, has stated :48 "From the provisions contained in Ss. 235 and 236it is clear that the legislature considered that investigation into the affairs of a company is a very serious matter and it should not be ordered except on good grounds. It is true that the investigation under S. 237(b)is of a fact finding nature. The report submitted by the Inspector does not bind anybody. The Government is not required to act on the basis of that report, the company has to be called upon to have its say in the matter but yet the risk--it may be a grave one--is that the appointment of an Inspector is likely to receive much press publicity as a result of which the reputation and prospects of the company may be adversely affected. It should not therefore be ordered except on satisfactory grounds."

At another place in the judgment, the Court has observed : "In interpreting S. 237(b)we cannot ignore the adverse effect of the investigation on the company. Finally we must also remember that the section in question is an inroad on the powers of the company to carry on its trade or business..."

Thus, the Supreme Court quashed an order of investigation under S. 237(b)of the Companies Act because the material in the possession of the government did not suggest that there was fraud on the part of the company (the factor mentioned in the section for ordering investigation) and the opinion formed by the government as to fraud was "a wholly irrational opinion." The Court said that no reasonable person much less any expert body like the Government of India, on the material before it "could have jumped to the conclusion" that the company was guilty of any fraud.49 Again, in Hariganga Cement Ltd. v. Company Law Board,50 an order directing an investigation into the affairs of the petitioner company under S. Section 237of the Companies Act was quashed by the Bombay High Court on the ground that "none of the circumstances" which could have led the Board to the conclusion to order investigation was in existence. The Court said : "The formation of the opinion under S. Section 237of the Companies Act by the Central Government is subjective, but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable."51

Though the purpose of investigation under S. 237(b)is collection of facts, yet it cannot be denied that even in such a case the consequences of ordering an investigation are serious for an individual. In case of a company, an order of investigation may have much more serious repercussions on its business, reputation and credibility. There is need therefore for the government to have some relevant material in its possession for making an order of investigation. The courts have ruled that under S. 237(b), Companies Act, the Board has to proceed reasonably, that is, what a reasonable body of men would have done in a given situation; it must not be actuated by bad faith or dishonesty, it must exclude irrelevant considerations.52 If the statute

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confers a blanket power on the Administration to order an investigation without any restriction or mentioning any ground, then the control of such a power through a court action does not appear to be feasible beyond what can be achieved by applying the general principles of Administrative Law regulating exercise of discretionary powers. This aspect of the matter however falls more properly within the scope of discretionary powers--a topic discussed later in some detail.53 The Supreme Court has ruled that S. 237(b), Companies Act, is not violative of Arts. 14and 19(1)(g) of the Constitution.54 Then, there is the question of procedure to be followed in conducting inquiries. No fixed pattern is insisted upon in this connection. At times, the procedure may be as elaborate as before a quasi-judicial body and may thus conform with the principles of natural justice. The reason is that the inquiry carried out may have a prejudicial and adverse effect on the reputation and rights of some individuals.55 Here the proceedings of inquiry and of hearing intermingle--the former taking place for the enlightenment of the government and the latter to provide a safeguard to the individual by giving him an opportunity to clear himself. Reference may be made here to S. 15of the Industries (Development & Regulation) Act.56 Though the section is silent as to the hearing to be given yet it has been held that the management of the undertaking concerned should be given an opportunity of being heard at such an inquiry.57 In England, it was held in Re pergamon Press Ltd.58 that an inspector appointed under the Companies Act, 1948, to investigate into the affairs of a company was required to give a hearing (though not an opportunity to crossexamine witnesses) to all those who may be prejudicially affected by his report, as his findings may be damaging to the concerned individual, may ruin his reputation or may expose him to criminal prosecutions or civil actions. The inspector must act fairly. Lastly, one other aspect of inquiries may be noted here. While an inquiry may have the negative aspect of causing harassment to the individual concerned, it may, nevertheless, have a positive aspect as well. On occasions, the government may order an enquiry prior to its taking any drastic action against him. In such a case, inquiry may prove to be his first line of defence. He can present his side of the facts and evidence with a view to avoid the ultimate action. If the statute would confer power on the Administration to take action without an inquiry, the governmental action may be based on lack of data or facts, and the individual may be subjected to much worse harassment. Through the inquiry, the individual gets an early opportunity to clear himself against any suspicion or allegation so that any drastic action against him may possibly be avoided. Looked at from this angle, investigation may afford some protection to the individual against adverse administrative action. When there is a provision for an inquiry preceding an action, the provision for inquiry is regarded as mandatory and any action taken without an inquiry may have to be quashed, e.g., action taken under S. 18-Aof the Industries (Development and Regulation) Act without investigation under S. 15of the Act. The moral of this is that the power to initiate an inquiry, inevitable though it may be in the modern complex social conditions, needs to be wielded in such a manner that it safeguards individual's interests along with promoting administrative exigencies. Besides the investigatory inquiries mentioned above, some statutes prescribe other forms of inquiries. As for example, some statutes prescribe inquiries to be held into objections raised by interested persons against some proposed governmental measure or policy. Reference to this type of inquiries has been made earlier.59 This mechanism of airing objections may be regarded as democratic participation in governmental policymaking or taking discretionary decisions.60 Such an inquiry is not directed against any individual specifically, but is directed against some governmental proposal, and is open to interested persons to give vent to their views on, and raise objections to, the proposed government measure. The basic purpose underlying the inquiry procedure is to allow persons interested in the matter to present their arguments and evidence with a view to fully inform the decisionmaking authority of the issues involved so that the best possible decision in public interest can be arrived at. Usually, in such a case, the person holding the inquiry is different from the actual decisionmaker. Thus, S. Section 5A of the Land Acquisition Act prescribes such an inquiry before any land is acquired by the Administration. Reference has already been made to the inquiries under the Motor Vehicles Act into objections against proposed nationalisation of any bus route.61 As already stated, the Supreme Court has applied principles of natural justice to such an inquiry.62 An inquiry into objections is basically different from an inquiry of an investigatory or factfinding type mentioned above. It

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may be of interest to know that the process of public inquiries in widely used in England as a part of the process preliminary to a government decision in many areas with a view to gauze public reaction to government proposals.63 Some statutes prescribe an 'inquiry' before an authority adjudicates upon any matter. Such an 'inquiry' is practically synonymous with hearing according to the principles of natural justice. After holding the inquiry which involves giving a hearing to the affected person, the authority gives a definitive judgment based on law and facts.64 This type of inquiry is adjudication in nature and also is different from an investigatory type inquiry where the inquiring agency does not render any definitive decision. (c) Parliamentary Inquiry In recent days, inquiries have been mounted by joint committees of the two Houses of Parliament in specific matters of public importance. Reference may be made to two such recent inquiries, viz.: Bofors scandal and Bombay Stock Exchange scandal. Inquiries in these matters which assumed great public importance were held by JPC's, i.e. Joint Parliamentary Committees. These committees were set up because of the incessant demand by the opposition parties on the floor of the two Houses for such a probe. The government agreed to appionting JPC's keeping in view political exigencies. Under the Rules of Procedure and Conduct of Business of the two Houses of Parliament, a committee appointed by a House in entitled to take oral or written evidence or call for documentary evidence in connection with a matter under its consideration, examination or investigation. A committee has power to send for persons, paper and records. If a witness fails to appear before a committee when summoned or called by it by a letter, or a person refuses to provide any document when so required by a committee, his conduct constitutes contempt of the House and may be reported to the House by the concerned committee.65 While in theory an inquiry by a Parliamentary committee may be justified on the ground of government's accountability to Parliament, it cannot be asserted that in practice an inquiry by a parliamentary committee is effective. The reason is that a parliamentary committee is composed of members from all political parties represented in the House in proportion to their strength. Therefore, usually, an inquiry made by a parliamentary committee is influenced by partisan political considerations. The attempt of the ruling party members on the committee is to mitigate the responsibility of the government for the matter under enquiry, while the attempt of the opposition members is to magnify the same. The committee gets divided on party lines and in this, often, truth is a casualty. Therefore, usually, a probe into a matter of public importance through a commission of inquiry is preferred. In England, the Tribunal of Inquiry (Evidence) Act, 1921, was passed to displace the procedure prevalent until then by which select parliamentary committees were used "to investigate alleged wrong doing in high places". This was a political tribunal and such a procedure was highly unsatisfactory as it consisted of members representing the relative strength of the majority and minority parties in the House of Parliament appointing the select committee. Such a body could never be objective and free from party political influences and inevitably it divided on political basis. This is a grave defect in any tribunal investigating allegations of public misconduct--particularly as the subject matter of inquiry often has highly charged political overtones. These defects are minimised through the use of machinery envisaged by the Commissions of Inquiry Act. 3. THE COMMISSIONS OF INQUIRY ACT, 1952 The statute par excellence for the purpose of conducting enquiries in various situations is the Commissions of Inquiry Act, 1952. This Act confers powers on the government to appoint commissions of inquiry on a wide variety of subjects. Inquiries into varied subjectmatters have been undertaken under the Act.66 The most common subjects for appointing inquiry commissions are railway and air accidents and police firings. Commissions of inquiry have

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been appointed to inquire into various other matters, e.g., the state of press in India and its present and future lines of development; causes of food contamination; economic conditions and problems of tea, coffee and rubber industries; investments made by the Life Insurance Corporation in the shares of Mundhra concerns and fixing responsibility for the same; irregularities and frauds committed by certain persons managing the affairs of industrial concerns, as for example, into the affairs of Dalmia-Jain companies; the extent and effect of concentration of economic power in private hands and the prevalence of monopolistic and restrictive trade practices in India. Several commissions have been appointed under the Act to enquire into allegations of misuse of power by ex-ministers and chief ministers in office-Das Commission in 1963 and the Grover Commission in 1977--to hold inquiries against the Chief Ministers of Punjab and Karnataka respectively.67 The most important commission appointed under the Act to inquire into the misdeeds of the holders of public offices was the Shah Commission appointed in 1977 in the wake of widespread public demand for an inquiry into the excesses, malpractices and abuses of power during the emergency from 1975 to 1977. The commission headed by Shri J.C. SHAH, retired Chief Justice of the Supreme Court of India, was appointed by the Central Government through a notification dated May 28, 1977. Its terms of reference were to hold an inquiry into the circumstances leading to the proclamation of emergency in June, 1975, by the Indira Gandhi Government and also to inquire into misuse of power and abuse of authority and the excesses committed during the emergency. Recently, an inquiry commission, headed by M.P. THAKKAR, J., a Judge of the Supreme Court, was appointed to inquire into the assassination of Prime Minister Indira Gandhi. Another commission was appointed under R.N. MISRA, J., another Judge of the Supreme Court, to inquire into the outbreack of riots in Delhi and other parts of the country as an aftermath of the assassination of Indira Gandhi. Several other commissions have been appointed from time to time to inquire into various other matters.68 A number of these commissions have been headed by the sitting or retired Judges of the Supreme Court or the High Courts. The underlying purpose in appointing most of these inquiry commissions has been to ascertain facts for the information of the government as well as the public so that if any malpractices or problems are disclosed as a result of the inquiry, corrective legislative or administrative measures may be undertaken by the concerned government. The commission of inquiry under the Act in question constitutes an important instrumentality for holding public inquiries into matters causing concern to the public mind. Some of the problems which have arisen in relation to the C.I. Act are discussed below. According to S. 3of the Act, the Central or State Government may appoint a commission of inquiry of its own motion, if it is of opinion that it is necessary to do so, for the purpose of making an inquiry into any "definite matter of public importance", and for performing such other functions as may be specified, within such time as may be specified in the notification. The appiontment of the commission is to be made through a notification in the official gazette. The Supreme Court has ruled in Shammbhu Nath v. Kedar Prasad69 that a plain reading of S. 3(1)CI Act, "makes it manifest that the notification appointing a commission of inquiry must be published in the official Gazette. It is an imperative requirement and cannot be dispersed with." The object of publication in an official gazette is twofold : (i) to give publicity to the notification; and (ii) to provide authenticity to the contents of that notification in case some dispute arises with regard to its contents. under S. 3, the government has to form an opinion that it is necessary to appoint a commission of inquiry to inquire into any definite matter of public importance. It has been judicially held that the formation of the opinion of the government to appoint a commission of inquiry is subjective and the government is not required at this stage to hold a quasi-judicial inquiry in which any of the parties concerned has any right of being heard.70 It is not necessary to recite the formation of such opinion in the notification itself as its formation can be proved by evidence aliunde and by affidavits filed in the court.71 It has been further held that a government is under no legal or statutory obligation to appoint a commission to inquire into any definite matter of public importance. The question of appointing a commission falls within the discretion of the government and none can compel the government to appoint such a commission to enquire into any matter. Consequent upon the assassination of Prime Minister Indira Gandhi, there were

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widespread riots in Delhi during October 31 to November 10, 1984. A nonpolitical organisation concerned with the protection of fundamental rights of the people filed a writ petition in the Delhi High Court seeking, inter alia, mandamus directing the Central Government to appoint a commission to inquire into the causes of the riots and the role played by the police and the politicians therein. The Court rejected the petition72 holding that neither the government was under any legal or statutory obligation nor the petitioners had any legal or statutory right to compel the government, to appoint a commission of inquiry even when there was a definite matter of public importance. To the same effect is the decision of the Kerala High Court in Rajendran73 that "the question of appointment of a commission would arise only if, in the opinion of the government, it is found necessary to appoint one or when the government is compelled to do so as a result of the resolution passed in that behalf, either by the Lok Sabha or by the Legislative Assembly of the State concerned. The expression 'if it is of opinion' used in the subsection makes it abundantly clear that, unless compelled by the Lok Sabha or the State Legislative Assembly of the State concerned, the government has the discretion to appoint or not to appoint a commission in terms of Sec. 3 of the Act, depending upon its opinion." The above judicial view seems to be based on a literal interpretation of S. 3, Cl Act and is based on the orthodox view of discretionary powers such as was entertained by the courts in the pre -Padfield era. Since Padfield, the courts have adopted a more activist stance and judicial view has undergone a change in the common law world as regards the exercise of discretionary powers.74 A view more in tune with the prevailing judicial thinking has been recently expressed by the Orissa High Court. When more than one hundred persons died in Cuttack by consuming spurious liquor, the government satisfied itself by merely holding an inquiry through an administrative officer into the grim tragedy. People were not satisfied with such an inquiry and they wanted a judicial inquiry (the term is used for a commission of inquiry headed by a Judge). Accordingly, a public interest petition was filed in the High Court under Art. 226seeking a direction to the State Government to appoint such a body to enquire into the tragedy and the High Court accepted the petition and issued the direction sought for even in the face of opposition by the government. The Court based its decision on two main grounds : (a) S. 3, CI Act, confers not merely a discretion pure and simple but discretion coupled with duty.75 The word 'may' can be interpreted as 'shall' in certain situations. "When a power is coupled with duty, its exercise almost ceases to be discretionary and it becomes mandatory," said the High Court. Accordingly, if there arises a matter of great public importance, then the government is duty bound to institute an inquiry therein to ascertain facts so that appropriate steps may be taken to avert such a tragedy in future. (b) Refusal to exercise discretion vested in the government is subject to judicial control in the same manner as its exercise. Refusal to exercise discretion on irrelevant grounds is bad. In the instant case, the Court ruled that refusal to appoint a commission of inquiry was to serve an 'alien' purpose and so it was invalid.76 There were serious complaints against the working of government hospitals in Rajasthan. A public interest writ petition77 was filed in the High Court for issuing a direction to the State Government to appoint a commission of inquiry to enquire into the working of these hospitals. The Court took the view that while it could not direct the government to set up a commission under S.3(1), CI Act, as it was a discretionary function with the government, it could itself set up a committee to enquire into the matter. The Court observed on the point : "But it can hardly be disputed that the Court has power to appoint commissioner/ commissioners and investigators to make inquiries, collect data, submit its report to the Court suggesting remedial measures, if any. In that case the report as aforesaid should be made available to both the parties whom maybe asked to give their objections, if any, to the report and file affidavits, and then the Court may give such directions as it deems proper in public interest to the State Government. . ."78

The abovementioned cases open up a new vista as many a time, in spite of public clamour, the government avoids appointing a commission of inquiry to enquire into a matter of public importance. In such an eventuality, the High Court may itself--either (i) appoint an inquiry committee under its own auspices to ascertain facts and then make necessary directions, or (ii) direct the government to appoint a commission of inquiry. These judicial pronouncements can be justified as an instance of government accountability to the people for lapses in the administration.

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It has been held judicially that the functions entrusted to the commission appointed under the CI Act, besides that of inquiry must be such as are ancillary and in aid of the inquiry itself and it cannot be a function independent of, or unconnected with, such an inquiry.79 Thus, where, while appointing a commission under S. 3, the government required it to recommend further action, if any, that must be taken against particular government officials whose conduct was assessed to merit this, such a term of reference was held to be not at all necessary for the purpose of the commission and was outside the scope of the Act, the reason being that a commission of inquiry under S. 3has no judicial powers and its report is purely recommendatory and not effective proprio vigore.80 Also, under S. 3, CI Act, it is necessary to fix the time within which the commission has to complete the inquiry. In Dalmia, the original notification appointing the commission did not mention the timelimit for the commission to complete its inquiry. Later, a new notification was issued amending the original notification fixing two years as the timelimit for the commission. In the following case,81 the Andhra Pradesh High Court has ruled that if a notification under S. 3appointing a commission does not specify the time within which the commission has to complete the inquiry, then, until the defect is cured, the commission is debarred from functioning notwithstanding the fact that the notification is not regarded as invalid. It means that the commission would remain in a state of suspended animation. However, the timelimit once fixed can be extended. S. 3does not provide for extension of the timelimit. But, for this purpose, S. Section 21 of the General Clauses Act can be invoked which provides that the power to issue a notification includes the power inter alia to amend the same. The extension of time from time to time is only an exercise of the power to amend the notification issued at the time of appointing the commission in question.82 The government is obligated to appoint a commission if a resolution to this effect is passed by the House of the People or a State Legislative Assembly, as the case may be.83 It has been held that there is no bar on the government appointing a commission in exercise of its discretionary power under S. 3even when a resolution to appoint a commission on the same matter had earlier been defeated in the House.84 under S. 2, read with S. 3, the Central Government can appoint a commission to inquire into any matter relatable to any entry enumerated in List I, II or III in the VII Schedule to the Constitution.85 On the other hand, the State Government can appoint such a commission to inquire into any matter relatable to any matter in List II or III. Thus, as regards Lists II and III, both the Central Government and the State Governments can appoint a commission of inquiry. To avoid conflict or overlapping of jurisdiction between the Centre and the States in this area, it has been provided that where a commission has been appointed to inquire into any matter by the Central Government, a State Government cannot appoint a commission to inquire into the same matter except with the approval of the Central Government.86 Conversely, where a commission is appointed by a State Government to enquire into any matter, the Central Government is barred from appointing another commission to inquire into the same matter unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.87 The commission may consist of one or more members appointed by the Government. Where the commission consists of more than one member, one of them is appointed as its chairman.88 The Act confers on the commission several powers which such a commission may need to perform its functions adequately. under S. 4, the commission has the powers of a civil court while trying a suit under the Civil Procedure Code in respect of the following matters : (i) summoning and enforcing the attendance of any person and examining him on oath; (ii) requiring the discovery and production of any document; (iii) receiving evidence on affidavits; (iv) requisitioning any public record or copy thereof from any court or office; (v) issuing commissions for examining witnesses or documents; (vi) any other matter which may be prescribed in the rules. The commission thus has compulsive powers to require the attendance of witnesses from any part of India. The powers under S. 4are automatically conferred on every commission appointed under S. 3. However, under S. 5(1), if the concerned government is of opinion that, having regard to "the nature of the inquiry to be made and other circumstances of the case", Ss. 5(2), (3), (4) or (5)should be made applicable to a commission, the government may "by notification in the official gazette" direct that all or any of the specified provisions shall apply to that commission. under S. 5(2), the commission can require any person, subject to any privilege which he may claim under the law, to furnish information on such points or matters as, in the opinion of the commission, may be useful for, or relevant to, the subject of inquiry and any person so

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required shall be deemed to be legally bound to furnish such information within the meaning of Ss. 176 and 177, IPC. It may be noted that the obligation of a person to disclose information under S. 5(2)is subject to any privilege available under the law for the time being in force. S. 5(2)by itself does not confer any special privilege, but any privilege confered by any other law would be available under that sub-section. It has been held that unless S. 5(2)is made applicable to the commission in pursuance of S. 5(1), the commission has got unfettered discretion to allow production of documents including those privileged under S. 123of the Evidence Act.89 under S. 5(3), the commission may also be authorised to have power of search and seizure of documents relating to the subjectmatter of the inquiry.90 Thus, the commission or any officer, not below the rank of a gazetted officer, specially authorised in this behalf by the commission, may enter any building or place where the commission has reason to believe that any books of account or other documents relating to the subjectmatter of the inquiry may be found, and may seize such books of account and documents, subject to the provisions of S s. 102 and 103, CrPC., in so far as they may be applicable.91 In Narayanadoss v. T. Neeladri Rao,92 an argument was raised that this provision conferred an uncontrolled and arbitrary power of entry and seizure on commissions of inquiry in general. Further, in the instant case, the commission was appointed to inquire into the widespread mismanagement of the properties of the Hindu religious and charitable trusts created for public purposes and it was, therefore, contended that there was also a violation of the fundamental rights guaranteed by Arts. 25 and 26of the Constitution.93 Rejecting the argument, the Court pointed out that the sub-section gave no such sweeping powers, but merely authorised the specified officers to enter buildings and places where the relevant books or documents could be found, and the power of seizure was hedged in by several restrictions or safeguards, including those contained in S s. 102 and 103, CrPC., 1898 . There was little danger of a search party interfering with the rituals, worship etc. in a math or violating its sanctity or religious sentiments. under S. 5(4), the commission is to be deemed to be a civil court for the purposes of Ss. 175, 178, 179, 180 or 228of the Indian Penal Code and when any such offence is committed in the view or presence of the commission, it may forward the case for trial to a magistrate. under S. 5(5), any proceeding before the commission is to be deemed to be a judicial proceeding within the meaning of Ss. 193 and 228 of the IPCS. 193 prescribes punishment for giving false evidence at any stage of judicial proceedings1 and S. 228for intentional insult or interruption to public servants sitting in judicial proceedings.2 under S. 5A, the commission may utilise the services of officers and investigating agencies for conducting any investigation pertaining to the inquiry. It has been held judicially that the maxim of delegatus non potest delegare3 does not apply to the investigating officers appointed by the commission to collect material and record statements of persons and officers and then to submit reports to the commission.4 under S. 5B, the commission is authorised, for the purpose of conducting an inquiry, to appoint persons having special knowledge of any matter connected with the inquiry as assessors, to assist and advise the commission in the inquiry. According to S. 6, statement made by a person, while giving evidence before the commission, will subject him to, or be used against him in, any civil or criminal proceeding except a prosecution for giving false evidence, provided that the statement in question--(i) is made in reply to a question which he is required by the commission to answer; or, (ii) is relevant to the subjectmatter of the inquiry.5 The purpose underlying S. 6is to encourage people to come forward and give evidence before a commission without apprehending that they will be subjected to any civil or criminal liability because of their giving evidence. Earlier, in Sohanlal v. State,6 the Bombay High Court had interpreted S. 6restrictively ruling that the statement made by a person before the commission could be used to controvert his testimony given later in a criminal trial, as provided for by S. 145, Evidence Act, as it would not amount to a "use against the person making the said statement" because "no liability is thereby fastened on him." But this restrictive view of S. 6has now been overruled by the Supreme Court. The Supreme Court has ruled that considering the restrictions contained in S. 6, the statement made by a witness before a commission could not be used in a criminal trial either for purposes of crossexamination to contradict the witness or to impeach his credit.7 This provision gives only a limited protection as it extends protection only to oral statements made before the commission. S. 6does not give any protection to the production of any incriminating document and gives no immunity with regard to the same.8 It needs to be pointed out that Art. 20(3)does not apply to an inquiry by a fact finding body. The Supreme Court has ruled that the protection against selfincrimination under Art. 20(3)cannot be claimed

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unless the person concerned is a person accused of an offence. Thus, Art. 20(3)does not apply to an investigation or inquiry.9 under S. 7, the government may, through a notification in the official gazette, declare that the commission (not appointed under a resolution of the House), shall cease to exist if it thinks that its continued existence is unnecessary. However, when a commission is appointed in pursuance of a resolution of the House, it cannot be wound up until a resolution for its discontinuance is passed by the concerned House.10 under S. 8A(1), if a vacancy occurs in a multimember commission, it may continue to act. under S. 8A (ii), if a change occurs in the composition of the commission "by reason of any vacancy having been filled or by any other reason," the commission need not commence the inquiry afresh; it can continue with the inquiry from the stage at which the change took place.11 S. 8Bembodies the principle of natural justice not to condemn a person unheard.12 Although the commission is not an adjudicatory body, but is merely a factfinding body whose report is not a judgment binding on any one, yet adverse observations made by such a highpowered body against an individual may mar his reputation or lead to serious, even irremediable consequences for him. To avoid such a contingency, S. 8Bplaces the commission under a statutory obligation to give to a person reasonable opportunity of being heard if it considers it necessary to inquire into his conduct, or if the commission is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry.13 It is implicit in this provision that notice has to be issued in the absence of the person whose conduct is being inquired into or the person whose reputation, in the opinion of the commission, is likely to be affected adversely by the inquiry. under S. 8C, the concerned person is entitled to crossexamine the witnesses, address the commission, and be represented by a lawyer.14 S. 8Bis an embodiment of natural justice. Its great significance has been underlined by the Supreme Court recently. A commission15 was appointed to enquire into certain incidents involving lawyers and police. Two police officers, Kiran Bedi and Jinder Singh, along with three other officers were involved in the inquiry. While the three officers were given the benefit of S. 8B, Kiran Bedi and Jinder Singh were asked by the commission to testify on oath and subject themselves to crossexamination even before any other witness was examined. They refused to do so arguing that as their conduct was subject to enquiry by the commission, they had a right under S. 8Bto be examined only after other witnesses had been examined. The commission did not agree with their contention. On a writ petition being filed by them in the Supreme Court under Art. 32, the Supreme Court agreed with their contention arguing that as their reputation was at stake they were entitled to the protection of S.8B.16 The Court pointed out that the inquiry commission was not justified in calling upon these officers to stand in the witness box at the very initial stage of the inquiry. S. 8Bcontemplates inter alia an opportunity being given to the concerned person to produce evidence in his defence and under S. 8Che has a right to crossexamine the witnesses deposing against him. The Court observed on this point : "Calling upon a person governed by S. 8Bto produce evidence in his defence at the very inception of the inquiry is a contradiction in terms in as much as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses who are yet to be examined, it would also reduce the right of crossexamination by such person to a mere formality for the obvious reason that by the time the witnesses who are to be crossexamined and produced, the defence of such person which would normally constitute the basis for the line and object of crossexamination would already be known to such witnesses and they are likely to refashion their statements accordingly."17

Subject to any rules made for the purpose under S. 12, the commission enjoys broad power to regulate its own procedure.18 It is for the commission itself to decide whether it will sit in public or in private.19 S. 9provides for indemnity to the government, the members of the commission or other persons acting under their directions in respect of anything which is done or intended to be done in good faith in pursuance of the Act. As has already been stated earlier, an inquiry committee can be constituted by the government, de hors the Act, under its administrative power.20 S. 11authorises the government to direct that all or any of the provisions of the Act will be made applicable to the authority set up under any resolution or order of the

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government for the purpose of making any inquiry into any definite matter of public importance. On the issue of a notification under S. 11, such an authority is to be deemed to be a commission appointed under S. 3for the purposes of the Act. Thus, an inquiry body appointed initially de hors the Act is converted by legal fiction into a commission under S. 3as soon as a notification is issued under S. 11.21 S. 12(b)provides that the appropriate government may make rules in regard to the manner in which inquiries may be held and the procedure to be followed.22 Accordingly, the Central Government has promulgated the Central Commission of Inquiry (Procedure) Rules, 1960, under the Act. To protect a commission or its members from scurrilous attacks in the press or elsewhere, S. 10A(1)provides that if any person makes or publishes any statement or does any other act to bring the commission or any of its members into disrepute, he can be punished with simple imprisonment up to 6 months, and/or fine.23 The offence under sub-section (1) is triable by the High Court upon a written complaint by a member, or an authorised officer of the commission.24 An appeal lies from the High Court to the Supreme Court as a matter of right, both on facts as well as on law.25 Before 1986, S. 3(4), C.I. Act, required the Central or the State Government, as the case may be, to lay before Lok Sabha, or the State Assembly, the report of a commission of inquiry appointed by it along with a memorandum of action taken on the report within six months from the date of submission of the report by the commission to the government. This was an important provision as it promoted the concept of open government which involve giving information to the public on important public matters. The provision also brought the follow-up action by the government on the report of a commission within the scrutiny of the concerned legislature. In 1986, the C.I. Act was amended and a new Section 3(5)was introduced authorising the government not to place an inquiry commission report before the House or the Assembly, as the case may be, if it was satisfied that "in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or in the public interest," it was not expedient to lay the report or any part thereof before Lok Sabha or the Assembly and issue a notification to that effect. S. 3(6), another newly added provision, requires that a notification issued under sub-sec. 3(5) shall be laid before Lok Sabha or the Assembly, as the case may be, if it is sitting, as soon as may be after the issue of the notification. And, if the House is not sitting, within seven days of its reassembly. The government is required to seek approval of the House or the Assembly to the notification in question by a resolution moved within 15 days beginning with the date of laying of the notification. The notification shall have effect as modified by the House concerned and shall have no effect if not approved, as the case may be. This amendment has been criticised as a retrograde step being against the tenet of open government.26 It has been argued, and rightly so, that when a commission gives a report after an inquiry into a matter of public importance, the public has a right to know the truth and also about the remedial measures proposed to be taken to rectify the situation. There is otherwise no point in wasting scarce public resources in mounting fruitless inquiries and hiding the reports from the public. The ground of "public interest" to withhold the report is so vague and broad that the government can withhold the report on any ground, especially when its findings are inconvenient to the government itself. Public interest becomes synonymous with interest of the government. Though the decision of the government to withhold a commission's report is made subject to the veto of the House concerned that is no effective safeguard as the majority in the House automatically supports the government in whatever decision it arrives at. The above are the salient provisions of the allimportant Commissions of Inquiry Act (CI Act). It would appear from the phraseology of S. 3, mentioned above, that it provides ample scope for the constitution of commissions of inquiry on a wide variety of subjects. The idea underlying the provisions mentioned above is to create an inquiry body having a substantial degree of independence from government control both in the public perception as well as in reality. The only control the government exercises over the functioning of the commission after its appointment is the power to close it down and stop it from continuing with the inquiry under S. 7, CI Act.27 To promote the value of independence of the commission of inquiry from government control, the Supreme Court has made a significant pronouncement in State of Madhya Pradesh v. Ajay Singh.28 A commission was appointed by the Madhya Pradesh Government with Justice Ramalinga, a Judge of the Madras High Court, to enquire into the Churhat Lottery matter. The term of the commission was extended from time to time. When Justice Ramalinga was due to retire from the High Court, he wrote to the

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M.P. Government to settle the modalities of his continuing to work as the commission after his retirement. Instead of replying to this letter, the Government appointed another retired High Court Judge instead of Justice Ramalinga as the commission of inquiry. The Supreme Court quashed the new appointment taking the view that the Government could not make the new appointment unless there was vacancy in the commission. The State Government could not reconstitute the commission by replacing or substituting the existing member of the commission. The Court observed : "The scheme of the enactment is that the appropriate government should have no control over the commission after its constitution under Section 3of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the commission apart from winding up the commission by issuance of a notification under S. 7of the Act if the continued existence of the commission is considered unnecessary..."

The Court emphasized that the commission should function as an independent body free from any government control so that it may enjoy public confidence. In the instant case, no vacancy had arisen as Justice Ramalinga was willing to act as the commission. The Supreme Court therefore directed the Government to finalise the terms and conditions so as to enable Justice Ramalinga to continue as the commission of inquiry. The CI Act confers on the commission of inquiry adequate powers to enable it to perform its functions adequately. The commission envisaged by the CI Act is merely a factfinding body; it does not decide any dispute. It is neither a civil court, nor are its proceedings judicial, nor do the provisions of the CrPC or the Evidence Act apply to its proceedings. The commission has no power of adjudication; it does not produce any document of a judicial nature. Enquiry by a commission is not an inquiry by a civil or a criminal court; its proceedings are not equivalent to the proceedings of a court of law. Its procedure is inquisitorial rather than accusatorial as is followed in a criminal court. Though S. 4clothes the commission with certain powers of a civil court, it does not generally confer the status of a court on it. under S. 5(4), the commission is deemed to be a civil court, and S. 5(5)imparts to its proceedings the character of a judicial proceeding, for certain pruposes. These provisions only create a legal fiction for certain purposes which cannot be extended beyond the purposes for which it is created. Reading S. 5(4)as a whole, it is clear that the commission is fictionally a civil court only for the limited purposes enumerated in that sub-section.29 In the proceedings before the commission, there is no lis; there are no accused, no accusers, no specific charges for trial, nor is the government, under the law, required to pronounce one way or (the other on the commission's findings.30 The report of the commission is merely of a recommendatory nature. It is not in any way binding on the government. It is not enforceable proprio vigore. The court cannot enforce it.31 The Supreme Court has ruled that the report of a commission of inquiry has no evidentiary value in the trial of a criminal case. The Thakkar Commission had enquired into the events leading to the assassination of Prime Minister Indira Gandhi. Some of the evidence collected by the commission could possibly be relevant for the purposes of trial of the accused of murdering the Prime Minister. He wanted a copy of the report of the commission (which was secret) to be produced in the court. But the Court refused to summon the report. The Court also ruled that in view of S. 6, the copies of the statements made before the commission by some witnesses could not be supplied to the accused.32 Basically, an inquiry under the CI Act is usually mounted by the government for the information of its own mind. These attributes of the commission have been emphasized upon by the courts from time to time while discussing the various legal problems which have arisen under the CI Act in its practical working since its enactment.33 The Supreme Court has ruled that findings of a commission of inquiry are not binding on a court and the court has to arrive at its own conclusions after an independent assessment of the evidence tendered before it.34 (a) Legal issues arising under the Act A number of significant points of legal controversy have emerged over a period of time under the Act. Generally speaking, commissions may be divided into two categories--advisory and investigative. The advisory commissions are appointed purely to gather information, study a problem and advise the government on questions of public policy questions. The Monopolies Inquiry Commission is the best

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example of such a commission of inquiry.35 But many a time, commissions have been appointed to inquire into the conduct of individuals and officials. These may be characterised as investigative commissions. While basically the purpose of such a commission is also to inform the mind of the government on some public issues, the inquiry may also have a deep inpact on some individuals. When a commission holds a searching inquiry into an event causing public concern with the object of ascertaining the truth and attributing blame where blame is due, reputation of individuals may be tarnished in the process. Their affairs may be pryed into; some incriminating material may be found as a rusult of the inquiry leading to some legal action being taken against them; their reputation may be at stake and their businesses may suffer. The Chagla Commission to enquire into the Mundhra affair, the Shah Commission to enquire into the abuse of power during the emergency (1975-77); the commission appointed to enquire into the affairs of Dalmia-Jain companies,36 and a host of other commissions37 fall in this category. Here public concern and individual interests come in conficit with each other. While the public may be concerned with ascertaining the truth and apportioning blame, the individual may suffer in the process and, therefore, he is interested in protecting his own interests. A balance needs to be drawn between these two conflicting interests. Most of the legal controversies have arisen in relation to such commissions of inquiry. When a commission is appointed to inquire into the affairs of an individual, he often makes an attempt to thwart the functioning of the commission at the very threshold, or he may challenge the procedure followed by, or the report of, the commission, by raising various legal objections. The courts have to decide on the validity of these objections and, thus, a volume of caselaw has been built up elucidating the various aspects of the functioning of the commission of inquiry.38 Some of these salient legal points may be noted here. Reference may first be made to the several constitutional points which have arisen in relation to the commissions of inquiry. A basic question has been raised about the constitutional validity of the Commissions of Inquiry Act. The Central Government appointed a commission to inquire into the affairs of certain companies belonging to the Dalmia Jain group. It was argued that the Act fell outside the legislative competence of Parliament. Referring to entries 94 in list I and 45 in list III in the Seventh Schedule to the Constitution, read with Art. 246,39 it was contended in Dalmia40 that while Parliament could make a law authorising the appointment of an inquiry commission to ascertain facts with a view to undertake some legislation, it could not do so for administrative purposes, much less for holding an enquiry into any wrongs alleged to have been committed by individuals with a view to punish them. The Supreme Court rejected the contention holding that the relevant entries empowered Parliament to enact a law for holding inquires not only for legislative purposes but also for administrative purposes. Thirdly, it was argued that the inquiry in question usurped the function of the court and was judicial in nature and hence the Act was ultra vires the Parliament. The Supreme Court rejected this argument as well because the commission was not an adjudicatory body. The only power it had was to enquire and make a report embodying its recommendation. The commission had no power to pass an order which could be enforced proprio vigore. The court pointed out that a clear distinction must be drawn between "a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken".41 In the former case, the function could not be characterised as judicial42 and there was thus no usurpation by Parliament or the government of the powers of the judicial organs of the country. Nevertheless, the court made an exception and held that part of the commission's function which envisaged it to make recommendations about the action to be taken "as and by way of securing redress of punishment" was ultra vires the scope of the Act. The Court pointed out that redress or punishment for wrongs already committed should be imposed by properly constituted courts exercising their discretion on the facts of the case without being influenced in any way by the view of any person or body, howsoever august or highpowered it might be. The commission could, however, propose proper legislative or administrative measure to eradicate the evil and could even suggest drastic punishments for future delinquents. Another argument raised in Dalmia against the constitutional validity of the CI Act. was that Parliament in authorising the appointment of a commission of inquiry, and the Government in appointing the same, have usurped judicial powers which was unconstitutional. The Supreme Court rejected the argument saying that neither the Government nor Parliament has itself undertaken any inquiry at all. Further, the commission is only a recommendatory, and not an adjudicatory, body. "The commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore." As no judicial functions properly so called

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are exercised by the commission there could be no question of usurpation by Parliament or the Government of the powers of judicial organ of the Union. Another argument raised in Dalmia against the constitutional validity of S. 3was that it conferred on the Government an arbitrary and uncontrolled discretion as regards the appointment of a commission and was therefore void under Art. 14of the Constitution. The Supreme Court negatived the argument by pointing out that the policy to control the discretion conferred by S. 3, CI Act, is laid down in the preamble to the Act and hence the discretion is not unguided or uncontrolled,43 that the power to appoint a commission is vested only in the Government which is a high powered body. Also, a commission can be appointed only to inquire into a definite matter of public importance and not for any purpose, and this gives sufficient guidance to the government.44 It may so happen that while the Act may be constitutionally valid, the notification issued thereunder appointing the commission may not be so. Accordingly, in some cases, notifications appointing commissions of inquiry have been challenged on constitutional grounds. An interesting question of this nature arose in Border Security Force v. State of Meghalaya.45 The question pertained to the respective jurisdiction of the Centre and the States to appoint a commission of inquiry. There was firing in a town in Meghalaya by the Border Security Force. The Government of Meghalaya appointed a commission to inquire and report on the circumstances under which firing took place. B.S.F. filed a writ petition in the High Court objecting to the inquiry on the ground that the B.S.F. being an armed force subject to the control of the Central Government, a State has no power to order an inquiry into any action taken by the B.S.F. under Ss. 2 and 3, CI Act., a State Government can appoint a commission of inquiry to inquire into any matter relatable to any entry in List II or List III. Public order and police force fall under entries 1 and 2 of List II.46 On the other hand, "any other armed forces" and "Deployment of any armed force of the Union" fall under entries 2 and 2A of List 1.47 Overruling the contention of the B.S.F. that their conduct could not be enquired into by a commission appointed by a State Government, the Court said that such a position was not supported by any statutory provision. Law and order being allotted to the State, the State could enquire into the causes of disruption of law and order. The mere fact of appointing such a commission does not interfere with the Central Government's control over the B.S.F. inasmuch as the commission is merely a factfinding body and its report has no binding effect. If the report finds any thing wrong with the working of the B.S.F., the matter would then have to be referred to the Central Government for taking necessary corrective action. Another significant constitutional question, again having a bearing on Centre-State division of powers, is : Can the Central Government appoint a commission to inquire into the acts of corruption, misdeeds and acts of misuse of power, committed by the ministers or the exministers of a State, or is it a matter exclusively belonging to the State concerned? The classic case on the point is State of Karnataka v. Union of India.48 By a notification, the State of Karnataka appointed a commission to inquire into a set of charges against the Chief Minister and a few other Ministers of the State. Thereafter, the Central Government appointed a commission to inquire into certain charges against the Chief Minister and certain ministers of the State of Karnataka. The validity of the commission was challenged. The Supreme Court ruled that the Commissions of Inquiry Act confers a very wide and undefined power on the Central Government to appoint a commission to enquire into any matter of public importance. The only limit on the power is that the inquiry must relate to a "definite mater of public importance". The Act makes no provision for . giving effect to the commission's findings. The commission is merely a factfinding body having no power to pronounce a binding or definitive judgment. It collects facts through the evidence laid before it, and after considering the same, it submits its report which the appointing government may or may not accept. The inquiry commission is not a court. under S. 4of the Act, it is merely clothed with certain powers of a civil court but it does not have the status of a court. The Court further ruled that the Central Government is not constitutionally debarred from appointing a commission to inquire into the conduct of the state ministers. While the Central Government does not exercise any control or supervisory jurisdiction over the executive functions of the State Government, the power of the Central Government to appoint a commission of inquiry for the purpose of finding facts in regard to allegations of corruption, favouritism and nepotism against a sitting Chief Minister or State Ministers does not constitute interference with the executive functions of the State government.49 The power to appoint a commission in such a matter does not offend the principle of collective responsibility of the State's Council of Ministers or the privilege of the State Legislature to control the Ministry. S. 3(1)of the Commissions of Inquiry Act places restrictions on the appointment of commissions by the Centre and the State simultaneously to

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inquire into the same subjectmatter.50 But there can be no objection in both the Governments appointing separate inquiry commissions if the scope of inquiry of both is different although the persons whose actions are to be inquired into are the same for both the inquiries. In the instant case, the State Government had already appointed a commission of inquiry to look into actions of the Ministers. But the Court found, after analysis of the terms of reference of the two commissions, one appointed by the State and the other by the Centre, that both could coexist as their areas of inquiry were different from each other and did not overlap. Can a State Government appoint a commission to enquire into the misdeeds of the exministers? Many such commissions have been appointed and have been upheld by the courts. A constitutional argument against doing so has been that the ministers are collectively responsible to the Legislature and, therefore, only the legislature can take any action against them. This argument was raised in State of Jammu & Kashmir v. Bakshi Gulam Mohammad.51 The Jammu & Kashmir Government appointed a commission under S. 3of the J&K Commission of Inquiry Act, 1962 (which is equivalent to S. 3, CI Act), to inquire into the actions of the ex-Chief Minister by way of securing pecuniary advantages through abuse of his official position. Bakshi challenged the appointment of the commission arguing that a minister was responsible for his actions to the legislature and, therefore, no action could be taken against him (barring an action for a criminal or a tortuous act) unless the Legislature demanded it. In substance the argument was that an enquiry could be directed into the actions of a minister only at the instance of the Legislature and not by a mere order of the Government. The Supreme Court made a short shrift of the argument by saying that on the date the commission was appointed, Bakshi was no longer a minister and, therefore, there was no question of his responsibility to the legislature. In Krishna Ballabh Sahay,52 the Supreme Court observed that an inquiry into the misdeeds of a Minister would be ordered not by the minister himself but by same one else. When a Ministry goes out of office, its successor Ministry may consider any glaring charges against it and may order an inquiry if justified, "otherwise each Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny".53 The Kerala High Court has observed that the Government is competent to appoint a commission to inquire into "lapses on the part of Ministers, acquisition of vast wealth by Ministers or near relations by abuse of official position, acts of malfeasance, misfeasance and misappropriation on the part of Ministers."54 Constitutional objections against the appointment of inquiry commissions have also been formulated on the basis of infringement of certain fundamental rights. For example, in The Statesman v. Fact Finding Committee,55 the appointment of the Newspaper Fact Finding Committee was objected to on the ground that to do so was inconsistent with the freedom of the press guaranteed by Art. 19(1)(a)of the Constitution.56 The Calcutta High Court rejected the argument saying that the inquiry committee being merely a fact finding committee, the question of the freedom of the press being adversely affected or not would arise only when the government took some concrete steps after the inquiry report was submitted. The argument of administrative discrimination was raised in Dalmia. The argument was advanced that appointing a commission to inquire into the actions of certain specified individuals amounted to discrimination against them which was a breach of Art. 14of the Constitution which guarantees equality before law and equal protection of law to all. This point is discussed more fully later in this book.57 At the second level, objections against the appointment of the commission may be formulated under the CI Act itself. The first major point of controversy arises with regard to the purposes for which a commission of inquiry can be appointed. S. 3of the Act authorises the government to appoint a commission to inquire into a "definite matter of public importance". What is the significance of this expression? The question has been raised in several cases. When a commission is appointed to inquire into a matter, a question can be raised whether the said matter falls under the description "definite matter of public importance". The discretion given to the government under S. 3, CI Act., is of wide import. S. 3gives a very broad power to the government to launch an inquiry practically into any matter, the only limitation on this power being that the matter be a "definite matter of public importance". If the matter to be inquired into is not definite, but is vague or speculative, the court may intervene and quash the appointment of the commission. The Bihar Government appointed a commission to inquire into the extent of assets of certain exministers at the beginning and at the end of their tenure of office, whether they had acquired assets by abusing their official position, and also inquire into acts of corruption, favouritism, abuse of power and other malpractices committed by them. The Supreme Court observed in Krishna Ballabh Sahay v. Commission of Inquiry:58

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"If the charges were vague or speculative suggesting a fishing expedition we would have paused to consider whether such an inquiry should be allowed to proceed. A perusal of the grounds assures us that the charges are specific, and that records rather than oral testimony will be used to establish them. . . . ."

The power of the government to appoint a commission under S. 3, CI Act, though broad is not unfettered or uncontrolled; the courts are competent to decide whether the matter to be inquired into is a definite matter of public importance or not. Thus, the principle is that if the court finds that the matters assigned to a commission for inquiry are vague and general in nature, the court can issue a writ of prohibition to prohibit the commission from proceeding with the inquiry on the ground that the condition precedent for exercising the power under S. 3, CI Act., has not been fulfilled. But, in practice, it is rarely that a court will hold that the matters to be inquired into are not 'definite' or of 'public importance'. On the whole, the courts are very liberal in upholding the action of the government in appointing a commission of inquiry.59 In a few cases, however, the courts have quashed the governmental action on the ground that the charges to be enquired into were vague. Thus, in P.K. Kunju v. State of Kerala,60 the government constituted a commission of inquiry to inquire into the allegations made by the two members of the legislature on the floor of the House against the finance minister of the State, which allegations were also supported by letters to the Speaker and the Chief Minister. However, these allegations and the letters were not appended to the notification appointing the commission, not even the substance thereof was mentioned. It was held that the allegations mentioned in the notification suffered from vagueness. Orient Paper Mills v. Union of India,61 is a difficult case on the point. The Central Government appointed a commission of inquiry to investigate into allegations relating to the Birla Group of concerns. In the instant case, the Calcutta High Court found the following matters as neither 'definite' nor of any 'public importance' but absolutely vague and general in nature : the circumstances in which large salaries had been paid to the wives and relatives of the of high executives of Birla concerns, without any service or inadquate service being rendered by them in recompense; attempt to defraud the government of its legitimate revenue; unauthorised retention of foreign exchange; whether the Birla concerns derive any undue benefit by the employment of retired senior government servants; whether Birla concerns employed "contact men"; and whether any senior government servant or well known politician was treated free at the Bombay Hospital run by the Birla concerns. As the condition precedent for exercising the power under S. 3had not been fulfilled, the Court issued a writ of prohibition to prohibit the commission from enquiring these matters. The notification appointing a commission of inquiry was held not vitiated when it did not mention specifically the names of the persons to be proceeded against in the inquiry but did mention the categories of such persons.62 Can the conduct of an individual be the subjectmatter of an inquiry by a commission appointed under S. 3, CI Act. The question was considered by the Supreme Court for the first time in Ram Krishna Dalmia v. Justice Tendolkar.63 The Government of India appointed a commission to enquire into and report on the affairs of some Dalmia-Jain companies, and acts of fraud and irregularities of certain persons who controlled these companies. The commission was further required to report on "any irregularities, frauds, or breaches of trust or action in disregard of honest commercial practices or contraventions of any law... in respect of the companies and firms whose affairs are investigated by the commission which may come to the knowledge of the commission and the action which in opinion of the commission should be taken as and by way of securing redress or punishment or to act as a preventive in future cases." The appointment of the commission was challenged inter alia on the ground that the phrase "definite matter of public importance", for enquiring into which a commission could be appointed under S. 3of the CI Act., did not envisage the conduct of an individual person or a company as it could not possibly be a matter of public importance and far less a definite matter of that kind. Rejecting the argument, the Supreme Court observed :64 We see no warrant for the proposition that a definite matter of public importance must necessarily mean only some matter involving the public benefit or advantage in the abstract, e.g., public health, sanitation or the like or some public evil or prejudice, e.g., floods, famine or pestilence or the like. Quite conceivably the conduct of an individual person or company or a group of individual persons or companies may assume such a dangerous proportion and may so prejudicially affect or threaten to affect the public wellbeing as to make such conduct a definite matter of public importance urgently calling for a full inquiry.

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The Court stated further :65 "In the tempo of the prevailing conditions in modern society events occur which were never foreseen and it is impossible for Parliament or any legislature to anticipate all events or to provide for all eventualities and, therefore, it must leave the duty of taking necessary action to the appropriate government."

Thus, in several cases, the conduct of an individual has been held to be a definite matter of public importance.66 In the Bakshi case,67 the Supreme Court ruled that S. 3of the Inquiry Act (which is synonymous with S. 3, CI Act) was broad enough to cover an inquiry into the conduct of an individual; an inquiry into the conduct and abuse of his official position by a person while in office was "a matter of public importance" although the person in question might have ceased to be a minister. "It is of public importance," observed the Court, "that public men failing in their duty should be called upon to face the consequences... The cleanliness of public life in which the public should be vitally interested must be a matter of public importance...." The Court ruled that there was no vagueness involved when an inquiry is to be made into such matters as to find out the extent of the assets of the persons concerned both at the beginning and at the and of their tenure of office, whether these persons obtained financial gains by abusing their position, whether they indulged in corruption and favouritism etc. The usefulness and justification of holding inquiries into individual conduct under the Act under discussion is not far to seek. Allegations are often made against individuals, and if these allegations are inquired into, it serves a useful purpose either when the inquiry body exonerates those persons or finds them guilty. In the former case, the inquiry sets at rest suspicions against the individuals concerned and vindicates them in the public eye. In the second case, the guilty are exposed. Many a time, it may not be possible to prosecute persons for their conduct under the criminal law, for to hold them guilty of an offence, the offence has to be proved beyond reasonable doubt, and such evidence may not be available. In such a case, exposure through an inquiry, which generates a lot of publicity, serves the purpose. While appointing a commission, it is not necessary for the government to name specific individual or individuals against whom inquiry is to be made; it is sufficient if the category of persons is mentioned.68 Besides the matter mentioned above, the following other matters inter alia have also been held to be 'definite matters of pubilc importance' for the purpose of appointment of commission of inquiry under the CI Act : (1) (2) (3)

widespread mismanagement of public endowments dedicated to religious and charitable purposes and eradication of the evil;69 the economics of the newspaper industry;70 conduct of members of the legislature, public servants, holders of public offices by reason of their political affiliation.71

It has also been ruled that by necessary implication, S. 3does not confer power on a government to appoint more than one commission to inquire into the same charges or allegations because there is a possibility that the two commissions may arrive at two different findings.72 In this case, appointment of the commission was held had in law being contrary to the terms of S. 3(1)as its field of inquiry coincided with that of another commission appointed by the government earlier. The State Government cannot exercise power to appoint two separate commissions to inquire into the same allegations. A Commission may be appointed to inquire into a matter pending before a civil court,73 or a criminal court.74 The commission commits no contempt of court by enquiring into a matter pending before a court. Nor does it amount to usurping judicial functions because the commission's report is not enforceable proprio vigore; in making the, enquiry, the commission performs only a statutory duty.75 A commission may be appointed to enquire into a matter pending police investigation. The reason is that there is no prosecution of any body before the commission; there is no accused as such to defend himself and there is no charge of any criminal offence against any body. The Commission is required to collect facts fairly to all concerned and in the best manner possible and advise the government with its findings. It will be ultimately. for the government to accept the commission's findings and take appropriate measures as advised or even otherwise.76 Similarly, there is no bar in the government appointing a commission for inquiring into matters which have previously been investigated or inquired into by any other agency of the government and whose findings have been

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accepted by the government.77 However, the government cannot appoint a commission for a matter in respect of which legal proceedings have already been taken and disposed of as such a matter remains no longer a matter of public importance.78 A commission of inquiry was appointed under Section 3of the Commission of Inquiry Act, 1952, to inquire into the alleged misconduct of an advocate at a police station on a specified day. Advocates fall under the disciplinary jurisdiction of the Bar Council under the Advocates Act. The question, therefore, was whether appointment of a commission to inquire into the conduct of an advocate was inconsistent with the Advocates Act. Explaining the position, the Madras High Court stated in U. Dakshinamoorthy v. Commission of Inquiry79 that a commission of inquiry is appointed for the purpose of finding out the facts in respect of a definite matter of public importance. There is absolutely no sanction behind the report of the commission. Government may pursue the matter through the court of law on the basis of the facts found by the commission or may close the matter once for all. There can be no conflict or overlapping of the findings given by the commission with those arrived at by the authority under the Advocates Act. The commission is purely a fact finding body; it does not have the moorings of a court; there are neither opposing parties nor the presence of a lis in issue before it. under Section 8B(a),80 the commission can inquire into the conduct of any person after giving him a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. The Bar Council can act on the report of the commission.81 The commission cannot decide upon the action to be taken even if it rinds the conduct of the advocate improper. The functions of the two bodies--Bar Council and the Commission of inquiry--are mutually exclusive. The propriety of the conduct of the advocate is to be inquired into by the commission. Whether that is professional misconduct or not has to be judged by the Bar Council. The term 'misconduct' used in the reference to the commission only means 'improper conduct'. under Section 8-B(a)of the Act, the commission is entitled to inquire into the conduct of a person who is involved in an incident being inquired into by the commission. The term 'misconduct' is not used in the notification used in the technical sense of professional misconduct used in Section 35of the Advocates Act. As already stated, S. 3of the CI Act says that the commission appointed under the Act may not only enquire but also do such other acts as may be assigned to it. The courts have put a rider on the broad scope of this clause.82 Discussing this clause, the Supreme Court has said in Dalmia that this means that any act assigned to the commission must be ancillary to its main inquiring function. In Dalmia,83 the Court declared a part of the terms of reference of the commission as ultra vires on this ground. The commission was asked to make recommendations for taking any action "as and by way of securing redress or punishment". The Court opined, that redress or punishment for wrongs committed by any one has to be imposed by a court. Considering the nature of the commission of inquiry, viz., that it has no judicial powers; its report could only be recommendatory and that statement made by any person before it cannot be used as evidence in any civil or criminal proceedings under S. 6. The Court ruled that there was no point in the commission making recommendations regarding action to be taken by way of redressal or punishment. This part of the terms of reference was thus held as not at all "necessary or ancillary to the purposes of the commission" and so was declared ultra vires the Act.84 Objections to the appointment of a commission of inquiry can also be formulated on the basis of general principles of Administrative Law. Therefore, although the power of the government to appoint such a commission under S. 3, CI Act, is broad and discretionary, and the formation of the government's satisfaction to appoint a commission is subjective, nevertheless, it is subject to all those restraints to which the exercise of any discretionary power is subject.85 Thus, it is necessary that there be some materials and some circumstances on the basis of which the Government could come to the conclusion that it was necessary to appoint such a commission.86 The Government should apply its mind to all facts and circumstances before appointing a commission.87 The most commonly invoked ground for the purpose has been mala fides.88 It has been contended in several cases that the action of the government to appoint the commission was mala fide.89 Appointment of the commission of inquiry under S. 3, CI Act is a matter of discretion of the government; mala fides on the part of the authority appointing the commission would vitiate discretionary decision. If niala fides can be established, undoubtedly, the governmental action will fall through. But it is difficult in practice to prove mala fides. This ground has been raised in several cases but it has invariably been rejected by the courts. Only in

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one case, P.K. Kunju v. State of Kerala,90 has the Kerala High Court quashed the order on the ground of mala fides.91 The facts in this case were as follows : the State Government was a coalition of several parties. The Chief Minister and the Finance Minister belonged to two different parties. The government appointed a commission of inquiry to probe into some allegations of misconduct against the Finance Minister. The High Court quashed the notification appointing the commission on the ground that it was mala fide and discriminatary. There were several ministers against whom similar allegations had been made but no action was taken against them. The Court observed: "The sequence of events, and the uncontroverted averments, make the petitioner's case of mala fides, the more readily acceptable. . . On all the facts and circumstances placed before us. . . we feel that this was a mere ruse to drop the petitioner from the Ministry, and that the dominant object of ordering the enquiry against him was not to maintain the purity and integrity of administration."

In Krishna Ballabh Sahay,92 for instance, the petitioner (ex-Chief Minister) challenged the appointment of a commission to inquire into his actions as the Chief Minister by the subsequent government as mala fide. He attributed malice and mala fides to the government and abuse of its powers under the CI Act. for an illegitimate purpose, i.e. vilification for political gain. But the Supreme Court rejected the argument saying that the question of mala fides could be decided if it could be held that the allegations were false, and it was for the commission to find facts. "Whether they lead to the conclusion that the inquiry was justified or was malicious, cannot be said just now, when there are only allegations and recriminations but no evidence." To the argument that the charges levied against the petitioner were false and scurrilous, the Court's reply was that "the truth or otherwise of the allegations is for the commission's consideration." When the existing government appoints a commission to inquire into the misdeeds of the previous government, the courts have refused to accept the allegation of mala fides based solely on the ground of acute political rivalry between the two governments. The view of the courts has been that if political rivalry alone were to be regarded as the litmus test for mala fides, then the object of the CI Act would be crippled for, in that case, one government cannot probe into the actions of another government, and no government would appoint a commission to probe into its own actions.93 Another common ground either to challenge the appointment of the commission or its terms of reference has been 'non-application of mind' by the government.94 Such an attack has succeeded in a few cases. For example, in Balakrishna,95 the High Court excluded a term of reference on the ground of non-application of mind. In this case, first an inquiry committee was appointed under an administrative order. Its report was ex parte and very unsatisfactory. Thereafter, a commission was appointed under S. 3, CI Act. Rejecting the argument against appointment of the commission, the Court ruled that since the earlier committee report was summary and suffered from fundamental infirmities, and there was constant public demand for the appointment of the commission of inquiry, it could not be said that the government appointed the commission mala fide, or without applying its mind, or without taking into account relevant considerations, or by taking into account irrelevant considerations. Nothing in the CI Act prevents appointment of a commission of inquiry into a matter when the first inquiry committee's report is found to be unacceptable. In State of Madhya Pradesh v. Arjun Singh,1 the Supreme Court quashed a term of reference to the commission of inquiry as there was no relevant material before the State Government on which it could form its subjective opinion. The Court emphasized that the formation of opinion by the State Government to appoint a commission and make a reference thereto "depends on the subjective satisfaction of an appropriate government" but it "should be based on an objective or real material and not merely on some vague allegations or hearsay evidence or to make a fishing enquiry." When a government makes an inquiry preliminary to reaching the decision whether to appoint an inquiry commission or not, such an inquiry is not quasi- judicial in nature and none of the parties concerned can therefore claim the right of being heard.2 Another ground to challenge the appointment of a commission of inquiry may be bias.3 It may be argued that in a given circumstance, the composition of the commission may be challenged on the ground that it is likely to be prejudicial and biased against the petitioner.4 An argument was advanced by the Statesman in The Statesman v. Fact Finding Committee,5 that by virtue of its composition, the committee was likely to be

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prejudicial and biased against the Statesman and was unlikely to be impartial in its inquiry. The Calcutta High Court found no substance in the argument. In the last resort, it may be possible to challenge the report of the commission itself on several grounds, viz., the findings are not based on any probative evidence; natural justice has been denied to persons adversely affected by the findings and observations in the report. Although the commission is not in essence a quasi-judicial body and does not perform a quasi-judicial function, nevertheless, if the commission is disposed to criticise any one in its report, it must first give him an opportunity to correct the evidence against him. This principle has been specifically incorporated in S. 8Bof the CI Act. S. 8Bthus gives statutory recognition to the rule of natural justice. This principle was very clearly enunciated by the Court of Appeal in England In Re Pergamon Press Ltd.6 In New Zealand, this principle has now become very well established by the decision of the Privy Council in Re Erebus Royal Commission.7 There was an air accident in which nearly two hundred persons perished. A Royal Commission was established to inquire into the causes of the accident. In its report, the commission made adverse remarks against some persons concerned with the management of the airlines. These persons challenged the findings and the Privy Council rejected these findings on the ground of failure of the commission to observe those rules of natural justice which were appropriate to the kind of inquiry that the commission was conducting. The rule not observed in the instant case was that any person represented at the inquiry who would be adversely affected by the decision to make the findings should not be left in the dark as to the risk of the findings being made and to give him an opportunity to adduce material of probative value which, had it been placed before the decision-maker, might have deterred him from making the findings even though it could not be predicated that it would inevitably have that result. Also, the Privy Council ruled that the commission's findings against the persons concerned were unsupported by any evidence of probative value.8 In Bakshi Gulam Mohammad,9 the Supreme Court accepted the proposition that when a commission was inquiring into the conduct of an individual, and allegations had been made against him, the commission must observe the principles of natural justice subject to the provisions of the Act and the rules made thereunder. Also, the Court emphasized that in determining what norms of natural justice were reasonably applicable in the commission's proceedings, two aspects must be kept in mind--(i) it was a factfinding body; (ii) its report had no force proprio vigore. The commission is not in essence a quasi-judicial adjudicatory body, nor it performs a quasi-judicial function. Under S.8B, the CI Act gives a right to the concerned parties to crossexamine witnesses appearing before the commission to testify. It has been held that the right to crossexamine a witness accrues to the party concerned only when the witness gives evidence orally but not when he does so through affidavits.10 Of course, no such limitation is mentioned in the Act. This limitation has been imposed by the judiciary and does not seem to be the correct approach as the commission will take into consideration the affidavits as well. As regards the question whether the sittings of the commission are to be held in public or private, the matter is to be decided by the commission itself. Most of the time, the commission sits in public, but there have been a few instances however when the commission has sat in private.11 It remains a moot question whether a finding or conclusion of a commission can be quashed by the court on the ground that the commission has gone out of its terms of reference. The concept of jurisdictional error is a very well established concept in administrative adjudication; a decision in excess of jurisdiction is regarded as void.12 But whether this concept will apply to a commission which is, strictly speaking, not an adjudicatory body, remains an uncertain point.13 As stated earlier, under S. 7, the appointing government has power to wind up the commission.14 It is extremely difficult to question the decision of the government to discontinue the commission before completing the inquiry. However, in one case,15 the Gujarat High Court quashed the order of the Government discontinuing the commission before the expiry of its term. The commission was appointed by the Gujarat Government to inquire into the Machhu Dam disaster. The Court ruled on facts that the Government had exercised its power to discontinue the commission for a collateral purpose and that its action was mala fide. But, on appeal, the Supreme Court found no legal malice in the order passed by the government to discontinue the inquiry. The Court ruled that the order issued for the purpose gave cogent

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reasons as to why the inquiry was being discontinued. There was no reason or.. justifiable cause to come to a finding that the government order was influenced by collateral considerations.16 It may be pointed out that there are several objections to an inquiry being undertaken by a commission under the CI Act. First, "in the absence of specific clear cut provisions for the purpose, there is a danger of inquiries being instituted in relation to matters in which the remedies available under the ordinary laws are adequate and effective."17 Secondly, the inquiry under the statute is inquisitorial rather than accusatorial which is against the fundamental canons of the Anglo-American jurisprudence.18 The conduct of persons is probed into without any specific accusation or charge. The inquiry begins merely on the 'belief or 'suspicion' and on vague and general grounds. Many a time, it may be like a fishing expedition. Roving questions may be asked in the hope that something incriminating may turn up.19 Where an accusatorial procedure applies, the case which the parties are called upon to meet, are relatively clearly defined at the outset of the proceedings. On the other hand, in an investigatory inquiry, the issues emerge as the inquiry proceeds. According to Garner : "The investigation of facts is often inextricably linked to the attribution of fault. There is a clear danger of individuals being ill-prepared to deal with issues of fact that may suddenly appear in evidence, and which may indicate where blame may lie.20 Thirdly, no person can claim the privilege against selfincrimination before a commission.21 Fourthly, the inquiry leads to much publicity and, at times, there may be mudslinging and character assassination. This may cause irretrievable damage and harassment to innocent persons and even ruin their reputation and career for life. The discretion conferred on the government under S. 3to appoint a commission of inquiry is very broad and there is a chance of its improper use. When the question of misuse of power under S. 3was raised in the Supreme Court in Dalmia, the Court merely observed that because there is a danger of a power being misused, the power cannot be denied to the government, and that if the power is actually misused in a case, the court will be able to look into the matter and take corrective action. But, in practice, the courts have given a liberal interpretation to S. 3, CI Act, and have made short shrift of arguments regarding mala fides on the part of the government in appointing the inquiry commission. From the above discussion it becomes quite clear that while it is inevitable to hold inquiries in modern administrative process, the technique of inquiry ought to be used with care and deliberation and only in exceptional circumstances. As S. 3, CI Act, confers a very broad power on the government to institute inquiries, the power should be invoked only for weighty and important reasons. Inquiries against individuals ought to be instituted only when there exists some material against them and questions of public importance are raised. The prudence and selfrestraint of the government in exercising the power is the only safeguard against improper use of power under S. 3, CI Act. This becomes apparent from judicial pronouncements referred to above regarding the scope of S. 3. It may also be an accepted principle that the inquiry procedure under the CI Act shall not be resorted to in relation to such matters in which an adequate and effective remedy is available under the ordinary law. What is necessary is to draw a balance between two interests at stake : One, to protect those who may be adversely affected by extrajudicial inquiries; two, the community interest in having the matter thoroughly investigated. In India, while a number of inquiry commissions have been appointed, in many cases, their reports have gathered dust without any worthwhile follow up action being taken thereon. In England, the parallel statute is the Tribunals of Inquiry (Evidence) Act, 1921, under which such commissions (known as tribunals) can be appointed only if both Houses of Parliament resolve that it is expedient that a tribunal be established for inquiring into a definite matter of urgent public importance. Before the passage of the Act, the procedure prevalent was to appoint select committees of Parliament to investigate alleged wrongdoing in high places. This used to be a political tribunal. The procedure was highly unsatisfactory as the committee consisted of members representing the relative strength of the majority and minority parties in the House appointing the select committee. Such a body could never be objective and be free from party political influences and inevitably divided on party basis. This was a grave defect in any tribunal investigating allegations of public misconductparticularly, as the subjectmatter of inquiry had highly charged political overtones.22 These defects have been minimised by resorting to the machinery envisaged by the Act of 1921. The Royal Commission on Tribunals of Enquiry, 1966, recommended that the machinery provided by the Act

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should not be put in motion for deciding matters of local or minor public importance but only for matters of vital public importance involving nationwide crisis of confidence. Further, "Because of the inquisitorial nature of the proceedings and the consequent pain which they may cause to individuals. Tribunals should be set up as sparingly as possible."23 (b) Contempt of Commission of Inquiry A significant question has arisen in relation to such a commission : Can the contempt of a commission be taken cognisance of by the High Court under the Contempt of Courts Act?24 The answer to the question has been in the negative. It has been held that a commission appointed under the Commissions of Inquiry Act is not a 'court' within the meaning of the Contempt of Courts Act; the proceedings of the Commission are not regarded as judicial proceedings except for certain purposes as mentioned in S. 5(5)of the Act. under S. 5(4), the commission is deemed to be a court for certain purposes only. S. 4only confers on a commission certain powers of a court, but does not confer on it the status of a court generally. These provisions only create a fiction but this cannot be extended beyond the purposes for which it has been created.25 The commission cannot be regarded as a court for any purpose other than the purposes specified. The minimum test of a 'court' is the legal power to give a "definitive judgment", but the commission of inquiry is merely a "factfinding" body meant only to instruct the mind of the government. Therefore, an inquiry commission does not have the status of a court within the meaning of the Contempt of Courts Act, 1952, or for the purposes of the application of the Civil Procedure Code or the Evidence Act.26 This means that the High Court cannot take cognisance of contempt of a commission of inquiry. In Brajnandan Sinha v. Jyoti Narain, the Supreme Court ruled that no contempt proceedings could be initiated in the High Court for contempt of the commissioner appointed under the Public Servants (Inquiries) Act, 1850.27 The Law Commission considered the question of giving power to the commission of inquiry to take cognisance of its own contempt similar to the power enjoyed by the High Court. But the Law Commission found several constitutional difficulties in doing so. One, a commission of inquiry is neither a court nor even an adjudicatory body; it is merely a factfinding body. Two, Parliament cannot therefore make a law to confer such power on a commission under entry 14, List III; Three, Art. 19(1)of the Constitution guarantees to every citizen freedom of speech and expression and the power given to Parliament under Art. 19(2)to make a law for imposing reasonable restrictions on such a right in relation inter alia to contempt of court cannot be used for making such a law in relation to a commission of inquiry as it is not a court, and Parliament cannot convert a mere factfinding body into a court for the purpose of punishing its contempt.28 Because of these difficulties, but realising the need to protect members of the commission from irresponsible and scurrilous attacks, the Law Commission suggested addition of a clause to the CI Act making it a criminal offence to do any act to bring the commission or any of its members into disrepute.29 Hence S. 10Awas added to the Act.30 In other matters of contempt of the commission of enquiry, the matter to be referred to magistrate's court of trial under S. 178, IPC. For example, if a person does not obey an order made by the commission, and thereby commits its contempt, the commission instead of dealing with the matter itself, has to refer the matter to a magistrate's court for trial under Ss. 193 and 228, IPC. This procedure can be illustrated with reference to a few cases. In Bansi Lal v. State31 when the Shah Commission called upon Bansi Lal, ex Chief Minister of Haryana, to take oath and testify before the Commission and he refused to do so pleading that he was bound by the oath of secrecy, the Commission directed that complaints be filed against him under Ss. 178 and 179, IPC, for refusing to take oath and give evidence on oath. Accordingly, proceedings were initiated against Bansilal before the Chief Metropolitan Magistrate who proceeded under S. 346(2), CrPC, as if the complaint was a police report. In Indira Gandhi v. J.C. Shah, Commission of Inquiry, the Delhi High Court quashed the proceedings for contempt of the inquiry commission initiated against Indira Gandhi under Ss. 178 and 179, IPC, on the complaint of the Shah Commission. She refused to testify when the commission had asked her to do so. The commission regarded it as its contempt and directed the magistrate to initiate proceedings against her. But the High Court quashed these proceedings taking the view that there were certain flaws in the procedure followed by the commission.32

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When Kiran Bedi and Jinder Singh refused to testify on oath, and subject themselves to crossexamination, at the very beginning of the inquiry as directed by the commission,33 it directed that these persons be prosecuted in a magistrate's court under S. 178 . IPC. Later, when the matter was considered by the Supreme Court on a writ petition moved by them, the Court ruled that these police officers were entitled to the benefit of S. 8B, CI Act, as their conduct was in question, and, therefore, the commission order asking them to testify at the beginning of the inquiry was not valid. Consequently, the commission order directing the prosecution of these officers under S. 178, IPC, was not lawful and so the order was quashed. (c) Perjury before Commission of Inquiry In Baliram v. Justice B. Lentin,34 the Supreme Court has decided a matter of farreaching importance pertaining to the commissions of inquiry appointed under the Commissions of Inquiry Act, 1952, viz.: Is perjury committed before such a commission punishable on a complaint of the commission itself under S. 195(1) (b), CrPC? This provision makes giving of false evidence before a civil, revenue or criminal court or a tribunal if declared to be a court punishable on the written complaint of the court itself. The basic question which thus arises is : Can a commission of inquiry be regarded as a 'court' for purposes of S. 195(1) (b), CrPC. The Supreme Court has answered this question in the negative. under Ss. 5(4)and 5(5)of the Commission of Inquiry Act, a commission of inquiry has been declared to be a civil court for purposes of Ss. 179, 180, 193 and 228of the IPC but not for purposes of S. 195, CrPC. The Court has observed :35 ". . [A] Commission of Inquiry constituted under the Commissions of Inquiry Act is neither a Civil Court nor a Criminal Court or a Court properly so called in the strict sense of the term."

Clarifying the nature of a commission of inquiry, the Supreme Court has observed :36 "A Commission of Inquiry is not a Court properly so called. A Commission is obviously appointed by the appropriate Government "for the information of its mind" in order for it to decide as to the course of action to be followed. It is therefore a factfinding body and is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court."

At another place in the judgment, the Supreme Court has observed : "The least that is required of Court is the capacity to deliver a "definitive judgment", and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a Court."

The commission of inquiry has therefore been held not to be a court for purposes of S. 195 of the CrPC. This means that it is for the State Government to launch a prosecution under Ss. 193 and 228, IPC, against a person who may have perjured himself before the commission. Prosecution cannot be instituted on the basis of a complaint at the instance of the inquiry commission alleging offences under Ss. 193 and 228, IPC. Some statutes specifically declare that the inquiry officials functioning under them shall be deemed to be civil court for the purposes of S. 195(1) (b), CrPC. For example, S. Section 116, Railways Act, declares that the commissioner of railway safety while inquiring into a railway accident is to be deemed to be a court for the purposes of S. 195 and Ch. XXVI, CrPC. 4. SEARCH AND SEIZURE Powers of search and seizure are gradually assuming great significance in modern administrative age. The Supreme Court has emphasized in M.P. Sharma v. Satish37 that "a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security." Powers of

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search and seizure are being increasingly conferred on the concerned administrative authorities under various statutes. Search may be conducted on the body of the person or on the premises. Just to mention a few examples here : under S. Section 100of the Customs Act, the proper customs authority is empowered to search the body of a person entering India if he has reason to believe that the concerned person "has secreted on his person, any goods liable to confiscation." under S. 106, the proper officer has power to search any aircraft or vessel in India if he has reason to believe that it is being used in smuggling of any goods. under S. Section 105, the Assistant Collector of Customs may search any place if he has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under the Customs Act, are secreted there. under S. 110(1)of the Customs Act, the customs officer may seize goods if he has reason to believe that they are liable to confiscation. under S. 110(3), the proper officer may seize any documents or thing which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. Similarly, the Foreign Exchange Regulation Act, 1973, confers on an officer of enforcement power to search a person, aircraft or vehicle, if he has reason to believe that any document which will be useful for, or relevant to, any investigation or proceeding under the Act is secreted on the person, aircraft or the vessel. S. 37of the Act confers power to search any premises.38 S. 4Cof the Imports and Exports (Control) Act, 1947, confers power to conduct search of any premises39 and S. 4Dconfers power to seize imported goods or materials if the authorized person has reason to believe that such goods or materials are liable to confiscation under the Act. Besides, S. 18of the Central Excises and Salt Tax Act, 1944,40 S. 5(3)of the Commissions of Inquiry Act, 195241 are also amongst a horde of statutory provisions authorising respective authorities thereunder to exercise the power of search and seizure. The Income Tax Act also confers broad powers of search and seizure on various categories of income tax officers. These powers are discussed below in some detail.42 (a) Search The purpose underlying the power of search is to assist the law enforcement officials to investigate suspected violations of their governing statutes by unearthing evidence for the suspected commission of breaches of law which may not otherwise be available to an investigating agency. The search is of an investigatory nature as it is conducted as a result of the belief that there has been a contravention of the law. The prevention of tax evasion is currently an important reason leading to an extension of the administrative power of search and seizure. The power of search and that of seizure usually go together, for, if during the search some incriminating material is found, then it has to be seized by the officials and taken by them in their possession. Seizure does not transfer the ownership in the property seized to the Administration; only its physical possession is transferred. If later it is proposed to confiscate some of this material under the law, then the owner thereof will have to be given an opportunity of being heard against the proposed confiscation. Thus, S. Section 124of the Customs Act specifically provides that no goods can be confiscated unless the owner is given a written notice of the grounds on which the goods is proposed to be confiscated and is given a reasonable opportunity of being heard in the matter. Thus, the three stages in the process are : search, seizure and confiscation. There is no general law of search and seizure by administrative officers. The Criminal Procedure Code makes some provisions for the purpose of search by police officials in the course of investigation of offences. For our present purposes, we are concerned with some of the provisions regarding search and seizure specifically made by a few statutes conferring such powers on the concerned administrative officers. The exercise of the power of search and seizure is of a drastic nature and constitutes a serious invasion of the affected person's privacy, property rights, reputation, business and his freedom. Therefore, the power of search and seizure can be exercised by an administrative authority only when it is conferred on it by a statutory provision.43 It is also necessary that the conditions imposed by the relevant statutory provision regulating the power of search and seizure must be duly observed by the concerned authority, otherwise the search and seizure may be declared to be illegal. In order to minimise the chance of misuse of the power of search and seizure, the question of procedural safeguards, subject to which such a power may be exercised, becomes a matter of some significance. However, the caselaw in the area does not reveal a consistent pattern of judicial approach and indicates a tilt more towards the Administration than towards the affected individual.44

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Even when a statute does not expressly confer the power to conduct a search, it may be possible for the court to imply such a power from other provisions in the statute. The Supreme Court adopted such a technique in Jhaver.45 S. 41(2)of the Madras General Sales Tax Act, 1959, provided that all accounts, registers, records and other documents etc. maintained by a dealer in the course of his business, the goods in his possession, and his offices, godowns, shops, etc."shall be open" to inspection at all reasonable times by the concerned officers. A proviso to the provision stipulated that no residential accommodation (not being a place of business-cum-residence) "shall be entered into and searched" by an officer except on the authority of a search warrant issued by a magistrate having jurisdiction over the area, and "all searches under this sub-section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure". S. 41(3) of the Act provided that if any officer "has reason to suspect" that any dealer was attempting to evade payment of any tax under the Act, "he may, for reasons to be recorded in writing", seize such accounts, registers, documents etc., Interpreting these provisions, the Supreme Court ruled that Though S. 41(2)did not mention "search" as such, yet the power of "inspection" of offices etc... and of accounts, would amount to giving the power to the officer concerned to "enter and search" the offices without warrant, except that a purely residential place could not be searched without a search warrant from a magistrate, The power to search was thus implied by the Court from the power of inspection of the business premises. The statutes do not usually confer an unqualified power of search and seizure. To do so would subject the power to constitutional objections.46 Some safeguards are therefore interwoven into the fabric of the power of search and seizure. One safeguard is not to couch the power of search and seizure in purely subjective terms. Usually a statutory provision conferring power to authorize search will say that the authorised officer can order search if he has "reason to believe" that the grounds mentioned in the provision for undertaking search exist. For example, S. Section 37 of the Foreign Exchange Regulation Act, 1973, [FERA] confers power on an enforcement officer (not below the rank of Assistant Director of Enforcement) to search any premises if the officer "has reason to believe" that any documents which in his opinion will be useful for, or relevant to, any investigation or proceedings under the Act, are secreted therein.47 S. 4Cof the Imports and Exports (Control) Act, 1947, says that if the authorised person has "any reason to believe" that--(i) any imported goods or materials which are liable to confiscation under the Act, or (ii) any books of account or other documents or things which, in his opinion, will be useful for, or relevant to, any proceedings under this Act, are secreted in any place, he may search such place for such imported goods, materials, books of account, or other documents or things.48 The most important provision empowering search and seizure under which most of the searches take place at the present time, and which has thus given rise to a good deal of caselaw, is S. 132of the Income Tax Act.49 S. 132(1)authorises, the Commissioner of Income-tax or the Director of Inspection to order a search. If in consequence of information, any of them "has reason to believe" that (1) a person would not produce his books of accounts to whom notice for the purpose has been or may be issued; or (ii) has in possession valuable property which has not been disclosed for purposes of Income Tax Act, then he may issue an authorization in favour of a designated officer to enter and search any place, building etc. The authorizing officer must record reasons for his belief. The courts have resisted attempts made from time to time by interested parties to have the scope of search power narrowed down by restrictively interpreting the statutory provisions authorising search, or by liberally interpreting the safeguards subject to which the power is given. By and large the courts have interpreted these provisions liberally and the safeguards against misuse of search power narrowly. S. Section 105, Customs Act, as stated above, says that the assistant collector can authorise search if he has "reason to believe" that some goods are "secreted". Several questions have been raised against the search warrants issued under S. 105. The Supreme Court has ruled : (1) (2)

The search warrant need not embody specifically, in terms, the words "reason to believe" if the "phraseology used in effect and substance meant the same thing."50 It was argued that the word "secreted" meant "hidden or concealed", and, therefore, the assistant collector cannot authorise search unless he has "reason to believe" that certain documents are "concealed or hidden". Rejecting the argument, the Court has said that the word

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(3)

"secreted" only means "documents or things which a person is likely to keep out of the way as to put in a place where the officer of law cannot find it."51 The Supreme Court has rejected the argument that the power of search cannot be exercised unless the authorisation specifies the document which is to be searched for. In other words, it was argued that the "power of search under S. Section 105of the Customs Act is not of general character." The Court has stated that the object of the power "is not search for a particular document but of documents or things which may be useful or necessary for proceedings either pending or contemplated under the Customs Act". The power is of general search but before exercising the power, the concerned officer "must have reason to believe that any documents or things, which in his opinion are relevant for any proceeding under the act, are secreted in the place searched." This preliminary condition, required by S. 105, must be strictly satisfied.52

Some statutes may use the words "reason to suspect" instead of "reason to believe". This semantic difference is without any significance. It has been judicially held that the phrase "reason to suspect" means in effect "reason to believe".53 An interesting question is : What are the implications of the expression "reason to believe"? The Supreme Court has explained the implications of S. 37of FERA, mentioned above, in Partap Singh v. Director of Enforcement, FERA.54 The Court explained that when an enforcement officer proposes to act under S. 37, undoubtedly, he must have reason to believe that the documents useful for investigation or proceeding under the Act are secreted. The expression "reason to believe" is not synonymous with subjective satisfaction55 of the officer concerned. The belief must be held in good faith : it cannot be merely a pretence. There should be material adequate for forming the reasonable belief to issue search warrant. It is open to the court to examine the question whether the reasons for the belief have a rational nexus or connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the statutory provision in question.56 To this limited extent the action of the officer is subject to judicial review.57 If as a result of the search nothing incriminating is found, that by itself cannot conclude that, at the inception, the search was mala fide or was for irrelevant or extraneous reasons. In the instant case, the Court looked into the relevant departmental file which was produced before the court and it found that there were materials which could furnish to the officer concerned the grounds for entertaining a reasonable belief that some documents which would be useful in the investigation under the Act were secreted in the petitioner's house. The officer was therefore fully justified in issuing the search warrant. A number of times, search warrants have been challenged on the ground that there was no material from which the concerned officer could have reason to believe that conditions prerequisite for directing search existed. The Supreme Court has recently stated in Narayan58 the following principle : "It hardly requires to be stated that the power conferred upon the commissioner under S. 132of the Income-Tax Act is of a drastic nature and exercise of power can only be after serious application to the information in possession of the Commissioner and from which a reasonable person would come to the conclusion that the conditions prerequisite for exercise of power existed."

But it is rarely that a search warrant is quashed on the ground of lack of adequate material to support it. However, one such examples is furnished by P. Ramachandra v. Secretary, Ministry of Food.59 According to Cl. 11(1)of the Andhra Pradesh Food-grains Dealers Licensing Order issued under the Essential Commodities Act, 1955, the licensing authority or any other authorized officer is empowered to enter and search any premises "in which he has reason to believe that any contravention of the provisions of this order or of conditions of any licence issued thereunder has been, or is being or is about to be committed." Thus, the concerned officer can only enter any premises in which he has reason to believe that any contravention of any provision of the order etc. is being committed. "Even at the time of entering or searching the premises, there must be reasonable belief, that any contravention has been or is likely to be committed." That "reason to believe" is a condition precedent to vesting any jurisdiction in any officer to enter

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any premises or make a search. In the absence of such reasonable belief, the entry and consequent search will be vitiated. The mere fact that, subsequently, the officer discovered some discrepancy in the stock cannot make good the reasonable belief which he is bound to have initially before he makes an entry. "The subsequent discovery of any material cannot be equated to the initial reasonable belief."60 Accordingly, in Ramchandra, as there was no material to show that a reasonable belief could have been formed before the concerned officer entered the premises, it was held that any subsequent acquisition of any other material to justify the conclusion would not be of any avail, nor would it justify the seizure or the search or even the entry into the premises. The whole proceeding relating to entry, search and seizure was, thus, quashed. Another technique adopted by statutes to provide some safeguards in the matter of search and seizure is to stipulate that the provisions of the Criminal Procedure Code relating to search and seizure shall apply "so far as may be", to searches and seizures under the statute concerned. For example, S. 4F of the Imports and Exports (Control) Act, 1947, says that "the provisions of the Code of Criminal Procedure, 1973, relating to searches and seizures, shall, so far as may be, apply to every search or seizure made under this Act." The statutes conferring power of search and seizure do not usually spell out specifically the safeguards subject to which such a power is to be exercised by the concerned administrative authorities. But the statute declares generally that under it the provisions of the Code of Criminal Procedure relating to searches and seizures "shall apply, so far as may be, to searches and seizures." Needless to say that whether the provisions of CrPC apply to searches and seizures under a particular statute or not is a matter to be decided with reference to the provisions of the relevant statute under which a search is taking place. In the absence of a statutory stipulation to this effect, the safeguards contained in the CrPC will not be available to an individual in the matter of a search and seizure under the relevant statute. At times, the phraseology of the statute in this regard may be explicit, admitting of no doubt, but, at other times, the statutory phraseology may be vague. This then will raise a question of statutory interpretation to ascertain whether the provisions of the Criminal Procedure Code would apply or not to the searches under the concerned statute. Loose and inarticulate draftsmanship of statutes, coupled with varying judicial attitudes which differ from judge to judge and case to case, cause confusion and at times create somewhat untenable situations. The difficulties in this regard are illustrated by reference to two Supreme Court cases : Jhaver61 and Sheonath.62 The relevant statutory provisions involved in Jhaver are already mentioned above. Literally the proviso requiring application of the provisions of the CrPC to searches under the Act appeared to apply to searches of residential premises, but the Supreme Court ruled that S. 41(2) made the provisions of the CrPC relating to searches applicable to a search not only of a residential place mentioned in the earlier part of the proviso, but to all searches made under S. 41(2). Thus, in this case, the provisions of the CrPC were made applicable to searches made under the Act in spite of some vagueness in the statute. The Court had to adopt such liberal stance in order to ward off the argument that the provision in question was unconstitutional vis-a-vis Arts. 19(1)(f) and 19(1)(g)63 as there were no safeguards therein against misuse of power of search. To meet this argument, the Court interpreted S. 41(2)along with its proviso so as to make all searches thereunder subject to the safeguards contained in the Criminal Procedure Code regarding searches. On the other hand, in Sheonath Prasad v. State of Bihar,64 where a similar question arose, the Supreme Court came to a different conclusion. S. 17of the Bihar Sales Tax Act, 1947, provided that if the commissioner "has reason to suspect that any dealer is attempting to evade the payment of any tax due from him", he may enter and search any place of business of the dealer concerned and, "for reasons to be recorded in writing seize such accounts..." S. 18authorised the State Government to delegate the powers of the commissioner to certain subordinate officials. S. 27empowered the commissioner to authorise any officer appointed to assist him to investigate offences punishable under the Act, and such an officer could then exercise power under the CrPC in the conduct of investigation. An officer of the department, authorised by the commissioner to exercise power under S. 17searched the premises of the appellant assessee and seized certain documents. To the objection raised by the assessee that the officer had not complied with the provisions of the CrPC in doing so, the Supreme Court replied that since he was acting under S. 17 and not under S. 27, he was not required to observe the provisions of the CrPC relating to search and seizure, for the Act in question made the provisions of the CrPC applicable only to investigation of an offence under S. 27and not to search and seizure pure and simple under S. 17. The difference in the approaches of the Supreme Court in the Jhaver65 and Sheonath cases as regards the question of applicability of the provisions

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of the CrPC to search and seizure may be noted. In Jhaver, the ambiguity in the Act was resolved in favour of the applicability of these provisions, while in Sheonath, the Court came to an opposite conclusion by adopting a strict statutory interpretation. Maintenance of incorrect accounts (and, therefore, evasion of tax) being a cognisable offence under S. 26(1)(g)of the Bihar Act, it could plausibly be argued that the search and seizure under S. 17was also in the course of investigation of an offence and so S. 27was controlling. But by taking too literalistic a view of the phraseology of the statute, the Court denied the safeguards available under the CrPC to search and seizure thereunder. A reason for the dichotomy of the judicial attitude in the two cases may be that in Jhaver, the power as to search was challenged on the ground that it was unqualified and hence constitutionally invalid. To meet this argument, the Court had to read it subject to the safeguards of the provisions in the CrPC. If certain safeguards could be read into the power then it could no longer be argued that it was unqualified. No such argument having been raised in Sheonath, the Court just took a literalistic view of the provision in question. Any way, the above twomentioned cases show that the provisions of the CrPC do not apply automatically to statutory searches and seizures, but only when the relevant statute itself makes the necessary stipulation in this behalf. When a statute makes the provisions of the Criminal Procedure Code applicable to search and seizure under it, the next important question which arises is : which of the provisions of CrPC would so apply ? No statute specifically mentions the relevant provisions of the CrPC which would apply to search and seizure under it. What a statute usually says is that the provisions of the CrPC, "So far as may be", would apply to a search under it. Now, the CrPC has a number of provisions relating to search and seizure, viz., Sections 51, 99, 100 and 165 (equivalent, to Ss. 51, 101to 103 and 165of the old Code of 1898). Of these, the most relevant provisions for the present purposes are Ss. 100 and 165. S. 100is a general provision applying to all searches and seizures. It makes it obligatory that a search must be conducted in the presence of two or more independent respectable inhabitants,, of the locality where the place being searched is situated, and that a list of all the things seized in the course of such search is to be prepared by the officer concerned and signed by such witnesses. This provision seeks to ensure that searches are conducted fairly and squarely and that there is no planting of any article by the officer conducting the search. On the other hand, S. 165applies to searches by police officers during the course of investigation of a cognisable offence and imposes the following several restrictions on the power of search and seizure, viz.: (1) (2) (3) (4) (5) (6) (7)

The officer concerned must have reasonable grounds for believing that anything necessary for the purpose of an investigation of an offence may be found in any place within his jurisdiction; he must be of the opinion that such thing cannot be got without undue delay otherwise than by making search; he should record in writing the grounds of his belief; and specify in such writing, as far as possible, the things for which the search is to be made; he must conduct the search, if practicable, in person; if it is not practicable for him to make the search by himself, he must record in writing the reasons for not making the search himself and authorise a subordinate officer to make the search after specifying in writing the place to be searched, and as far as possible, the thing for which search is to be made.

S. 165, CrPC, thus contains significant safeguards against an arbitrary exercise of power of search and seizure by an official. Two of these safeguards, viz., recording of reasons in writing for undertaking the search, and specifying in writing the thing to be searched are of special significance. The provisions of S. 165, CrPC, are regarded as mandatory and not directory. The requirements of S.165 must be complied with before a policeofficer can validly institute a search of the nature mentioned in this section. The question arises from time to time whether the requirements contained in S. 165are applicable, especially the requirement to record reasons for the search, if at all, or wholly or partially, to a statutory search by administrative officials. The question arises because the statutory provision applying the provisions of the Criminal Procedure Code to a search under the statute also qualifies the same by using the expression "so far as may be".

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As already stated above, the statutes containing provisions relating to searches and seizures generally empower an authorised officer to issue a search warrant if he has "reason to believe" that the grounds stated in the relevant statutory provision exist. S. 165, CrPC, on the other hand, speaks of "recording of reasons" before undertaking a search. It can be argued that in spite of the difference in the phraseology used in the two provisions, in substance, both mean that there should be reasonable grounds for issuing the search warrant and that the duty to record reasons for ordering a search may be spelled out from the phrase "reason to believe" because whether the official concerned had reason to believe or not to order the search in question could only be determined when the "reason" was reduced to writing in the record, and not when the same was merely in his mind. But, the courts have adopted an equivocal approach on the question of recording of reasons for ordering a search. The courts have not spelled out such an obligation merely from the phrase "reason to believe". They have required recording of reasons by the concerned officer for ordering search only, when S. 1 .65, CrPC, has been held applicable thereto. But the courts have not insisted on the recording of reasons if S. 165has been held inapplicable. Further, by and large, the judicial tendency is to hold S. 165, CrPC, as non-applicable to statutory searches. This judicial approach becomes clear from the following discussion of the relevant caselaw. In State of Rajasthan v. Rehman,66 the Supreme Court was called upon to consider the question of the applicability of the requirement of "recording of reasons" for the search as contained in S. 165, CrPC, to a search conducted under the Central Excises and Salt Act, 1944. under S. 18 of the Act, all searches are to be carried out in accordance with the provisions of the CrPC relating to searches. Rule 201framed under the Act authorises the Central Government to empower an officer to enter and search any land, building, etc., in which he has reason to believe that excisable goods are processed, stored, or manufactured in contravention of the law. Rule 201, the court pointed out, "enables the authorised officer to make a search only for the investigation of an offence" arising out of the contravention of the Act or the rules made thereunder. From this point of view, the Court emphasized, the search by a police officer during the course of investigation of the offence under S. 165, CrPC, could properly be approximated to the search made under Rule 201. In both the cases, searches are made during the course of investigation of an offence and there is no reason why the condition of recording of reasons should be imposed in the matter of a search by the police officer under S. 165, of the Code, but not in the case of a search by the excise officer under the Excise Act and the Rules. The Court thus held that the provisions of S. 165, CrPC, must be followed in the matter of a search under R. 201. As the officer in the instant case had carried out the search without recording the reasons therefor as envisaged by S. 165, the search was held to be illegal, for, as the Court emphasized, the "recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches." Thus, the requirement to record reasons for undertaking the search was spelt out from S. 165, CrPC, and not from the words "reason to believe" to be found in Rule 201as mentioned above. Again in Jhaver,67 the Supreme Court held S. 165, CrPC, applicable to searches under S. 41(2)of the Madras General Sales Tax Act. As the safeguards provided by S. 165(including the safeguard of recording of reasons) were not complied with, the search in question was held illegal and the things recovered as a result thereof were ordered to be returned. In this case, the statutory provision did not contain the words "reason to believe" for search and, therefore, it was essential to invoke S. 165, CrPC. A case not in line with the above case is Gopikisan v. Assistant Collector of Customs68 where a search under the Customs Act, 1962 was involved. under S. 105(2)of the Act, the concerned official can issue a letter of authorisation for search if he has "reason to believe" that the grounds mentioned in S. 105(1) exist. The provisions of the CrPC are made applicable to searches under the Customs Act. No specific reasons for search were mentioned in the authorisation letter in this case. It was argued that on a reasonable construction of S.105, it should be held that the Assistant Collector of Customs should give reasons for his belief. The Supreme Court held that S. 105(1)of the Customs Act does not require that the officer authorizing search must state the reasons therefor. Non-mention of the reasons by him does not vitiate the order. The power conferred by S. 105is not subject to any such condition. While the assistant collector cannot authorize an officer to make a search unless he has reasons to believe in the existence of the facts mentioned in S. 105(1), "the section does not compel him to give reasons," "While it may be advisable, and indeed proper, for him to give reasons, the non-mention of reasons in itself does not vitiate the order." The suggestion that the provisions of S. 165 of CrPC relating to "recording of reasons" ought to have been complied with, was

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repelled by the Court by saying simply that "it is not possible to invoke that condition and apply it to a situation arising under S. 105of the Act," as the two provisions were intended to meet totally different situations. Oddly the Rehman case was not even referred to in Gopikisan. However, in the Customs Act there existed two safeguards against the abuse of power--the assistant collector authorising the search was to send the record made by him to the collector, and he could be prosecuted with the permission of the Central Government if he made the order "without having reason to believe". Though these safeguards were postsearch, yet they still provided some protection against administrative arbitrariness. Finally, we come to Income Tax Officer v. Seth Bros.69 Here the search was made under the Income Tax Act, 1961. S. 132of the Act confers power to authorize a search on the Director of Inspection or the Commissioner of Income Tax. Authorization to carry out search must be in favour of officers not below the grade of income-tax officers. Rules have been framed under the Act to regulate search and seizure. S. 132speaks of "reason to believe", but Rule 211of the Income Tax Rules makes it explicit that the concerned official has to record the reasons for issuing the authorisation for search and seizure. Thus, under S. 132read along with the rules made under the Act, the concerned official may, if he has reason to believe that a person summoned to produce books of account or other documents which will be relevant or useful to any proceeding under the Income Tax Act, has failed to produce the same, or that he would not produce the same, after recording reasons, authorise any of the specified officers to conduct a search and seize the books of account or other documents. The provisions of CrPC relating to search and seizure have been made applicable, so far as may be, to the searches under the Act. In the instant case a search having been held in the respondents' premises and certain books and documents having been seized by the income-tax officers, the respondents moved the Allahabad High Court for a writ of certiorari to quash the letter authorizing search of the premises and a writ of mandamus directing the income tax officers to return all the books, papers, articles seized during the search. The High Court ruled that the extent of seizure was far beyond the limits of S. 132and that there was abuse of power by the income-tax officers. The High Court ruled that the extent of seizure was far beyond the limits of S. 132and that there was abuse of power by the income-tax officers. The matter then came before the Supreme Court by way of appeal. Analyzing the provision, the Supreme Court held that S. 132does not confer any arbitrary power upon the income tax officer, for the commissioner must have, in consequence of information,70 reason to believe that the statutory conditions for the exercise of the power to order search exist. He must record the reasons for his belief and then issue an authorization in favour of a designated officer to search the premises. The condition for entry into and making search of any building or place is the reason to believe that any books of account or other documents which will be useful for, or relevant to, any proceeding under the Act may be found there. The Supreme Court clarified that the issue of a search warrant under S. 132is not a judicial or quasi-judicial act. The warrant of authorization need not however specify the particulars of documents and books of account to be searched for and that a general authorization to search for relevant or useful materials would be enough. The Court ruled further that while S. 100, CrPC, (S. 103of the old Code), would apply, S. 165, CrPC, would not apply to searches under the Income Tax Act. This means that the officer concerned shall issue the necessary warrant, keep present respectable witnesses of the locality to witness the search and generally carry out the search in the manner provided by the Code of Criminal Procedure. but S. 132 does not imply that the limitations prescribed by S. 165, CrPC, are also incorporated therein. The Court did not explain as to why S. 165, CrPC, was not applicable to searches and seizures under S.132, Income-tax Act. No reference was made to Rehman and Jhaver on this point, and nothing was said to explain the apparent dichotomy of the judicial attitudes in these several cases. One plausible explanation for the judicial view adopted in Seth may however be offered here. In Rehman, the most important safeguard which the Court emphasized upon was that of recording of reasons for conducting a search, and the Court derived this requirement from S. 165, CrPC. In Seth, on the other hand, this aspect of the matter having been taken care of through the rules made under the Act, the Court felt no compelling necessity of pressing S. 165, CrPC, into service in case of searches under the Income Tax Act. Another reason to avoid applying S. 165to such searches may be that the Court did not want to import the requirement of specifying the documents to be searched. As S. 132of the Income Tax Act read with the Rules makes it obligatory to record the reasons for conducting search, and to this extent an element laid down in S. 165, CrPC, has been taken care of. S. 37(2) of FERA provides that the provisions of the CrPC.relating to searches, shall, so far as may be, apply to searches under S. 37(1). The Supreme Court has ruled in Partap Singh71 that S. 37(2)means that the methodology prescribed for carrying the search provided in S. 165, CrPC, has to be generally followed in

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searches under S. 37(1)FERA. The expression 'so far as may be' has always been construed to mean that those provisions may be generally followed to the extent possible. S. 165(1)has not been incorporated by pen and ink into S. 37(2). In order to give full meaning to the expression "so far as may be", S. 37(2)should be interpreted to mean that broadly the procedure relating to search as enacted in S. 165shall be followed. However, the Court has expressed the view that the duty to record reasons furnishing the grounds for entertaining a reasonable belief required by S. 165is not applicable to S. 37. This conclusion of the Court goes counter to what it held earlier in Rehman and Jhaver. The above cases show, especially Seth and Partap, that the Supreme Court has interpreted the broad provisions regarding search in a still broader manner weakening in the process whatever safeguards could be imported therein by invoking the provisions of S. 165, CrPC. The requirement of "recording of reasons" is a safeguard of some substance against arbitrary exercise of power of search, but its efficacy is largely diluted by the courts being easily satisfied by the general statements made by the authority without being specific as to the information in its possession.72 Further, a distinction needs to be drawn between--(i) recording of reasons for authorising search, and (ii) mentioning of these reasons in the letter authorising search or search warrant. It has been held in the income tax cases that the officer concerned is not obligated to disclose the reasons or the grounds for authorising a search in the authorisation letter itself. The Calcutta High Court has stated in Surajmull Nagarmull:73"What reports and what information led him (Commissioner) to issue the authorisation letter are not required to be disclosed to the assessee. Indeed, disclosure of such report might embarrass, prejudice and even frustrate future steps and progress for the discovery of other documents."74 However, the reasons will have to be disclosed to test their validity if a writ petition is filed by the individual in the High Court under Art. 226of the Constitution.75 In Partap Singh v. Director of Enforcement, FERA,76 the question was whether the officer ordering a search under S. 37, FERA, should disclose what material was before him on the basis of which he entertained a reasonable belief to order search. The Supreme Court answered in the negative saying that the material on which his belief was grounded might be secret, or might have been obtained through intelligence, or occasionally might have been conveyed orally by informants. Apart from the 'recording of reasons' for the search, the other safeguard provided in S. 165, CrPC, is that it requires specification of the materials to be searched for and seized. In Seth,77 the Court refused to read this requirement into the Income Tax Act. It held that the Act did not require that the warrant or authorisation should specify the particulars of the documents and the books of account to be searched for and that a general authorisation to search for relevant or useful materials was enough, as it is difficult to particularise the documents or materials at that stage for "they will be known only after the search has been made."78 The Act lays down the test for seizure of documents, viz., the documents being useful or relevant to income-tax proceedings. The Court has refused to superimpose a further limitation on it, viz., that of documents being particularised or specified in the authorisation to search. The Court has emphasized that S. 132of the Income Tax Act does not require specific mention by description of each particular document which has to be discovered on search. It is for the officer conducting the search to decide whether a particular document found on search is relevant for the purpose or not and, therefore, should be seized or not. As far as this aspect of the matter is concerned, in Gopikisan as well, the Court opined that particulars of the documents to be searched for need not be given in the letter authorising search. On the whole, the question of applicability of S. 165, CrPC, to statutory searches remains vague and ambiguous. The Court has not spelled out clearly the norms as to when S. 165, CrPC, would or would not apply to statutory searches and seizures. The judicial approach seems to be to decide the question on an ad hoc basis from statute to statute without developing any consistent philosophy to decide the question in all cases on a uniform basis. Just as in the case of any discretionary power,79 so also in the case of power to order a search, questions often arise whether the officer concerned has acted bona fide or mala fide in ordering search or acted on non-existent grounds or irrelevant considerations or has applied his mind or not to the question. The power to order a search being discretionary in nature, it is subject to all those restraints to which any discretionary power is subject. Therefore, an order to conduct a search can be challenged on any of the grounds on which

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exercise of a discretionary power can be challenged.80 As the Supreme Court observed in Seth:81 "Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorizes it to be exercised. If the action of the officer issuing the authorization or of the designated officer is challenged, the officer concerned must satisfy the Court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be stuck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed."

In the Jhaver case,82 the High Court quashed the search for the search warrant had been issued by the officer concerned without applying his mind. This became clear by looking at the search warrant, for in the printed form used for the purpose of issuing the search warrant, the columns which should have been struck out were not so struck out, and the gaps therein which should have been filled in before the warrant was issued had not been filled in. A search held in consequence of such a warrant could not be regarded as legal. The High court ruled that the search warrant had been issued by the officer concerned without applying his mind and so quashed the same. On appeal to the Supreme Court this part of the High Court ruling was not challenged. To the same effect is the Punjab High Court judgment in H.L. Sibal v. C.I.T.83 The case shows that it is the normal departmental practice for the concerned income tax official to sign blank search warrants.84 A contention about the non-applicability of the mind was also raised but without success in Surajmull Nagarmull v. Commissioner.85 The commissioner's authorisation letter to the I.T.O. ran like this: "Whereas on information received by you, you have reason to believe, and I am satified on your report" that books of accounts, etc., might be found at the specified premises, etc. It was contended that the commissioner merely acted on the report of the I.T.O. without exercising his own mind and so the authority was invalid. The Court ruled that it was not so and the words "I am satisfied" in the authority letter indicated that the commissioner had himself considered the matter. A similar contention raised in the Seth case86 was also negatived by the Court after a review of the affidavits filed. The Supreme Court in Pooran Mal v. Director of Inspection87 again upheld the procedure where the authorised officer in issuing the search warrant acted on the information of his subordinates. However, the Court has emphasized that if power of search is exercised bona fide, and in furtherance of the statutory duties of the tax officers, then any error of judgment on the part of the officers will not vitiate the exercise of power. Where the Commissioner entertains the requisite belief, and for reasons recorded by him, authorises a designated officer to enter and search premises for books of account and documents relevant thereto, or useful for, any proceeding under the Act, the court then cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Again, any irregularity in the course of entry, search and seizure committed by the officer acting in pursuance of the authorization will not be sufficient to vitiate the action taken, provided the officer has in executing the authorisation acted bona fide. It is not necessary to labour this point further as the principles applying to the exercise of discretionary powers apply mutatis mutandis to the exercise of power of search and seizure as well.88 Theoretically speaking, the courts may also quash a search and seizure if it is conducted in an indiscriminate, arbitrary and high-handed manner. Such questions have been raised in several cases but invariably the allegations made against the officers conducting the search have been rejected by the courts.89 However, in an earlier case Senairant Doongarmal Agency(P) Ltd. v. Johnson,90 the Assam High Court quashed a search on this ground. In the instant case, the search went on for 13 hours and 683 items were seized. 5. SEIZURE It is axiomatic that there can be no seizure of documents or any other property without legal authority. For example, legal power to seize gold does not warrant seizure of documents.91 Clause 21 of the Aluminium (Control) Order, 1970, issued under the Essential Commodities Act, 1955, authorises the controller to "seize any aluminium in respect of which he has to believe that a contravention of this order has been, is being, or is about to be committed." In Hindustan Aluminium v. Controller of Aluminium, the Delhi High Court92 quashed an order seizing aluminium in the possession of the petitioners. The court emphasized that any exercise of statutory power interfering with the property rights of the citizens

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is possible only after strictly complying with the preconditions for the exercise of such power. "The reason to believe that any contravention of the Control Order has taken place" is a precondition to the seizure of goods. "The reason to believe" must relate to the period of time when the impugned seizure was made; any subsequent acquisition of belief in this regard would not be of any avail. In the instant case, seizure was held invalid because, on the facts, it was clear that the controller could not have reason to believe that the goods seized were those in respect of which any contravention of the Control Order had been made. There was no application of mind to the aspects which were relevant and material for effecting seizure.93 In this connection, the court referred to the following observation of the Supreme Court in Barium Chemicals v. A.J. Rana94(per KHANNA, J.) as regards the expression "considers it necessary" and adopted the same as appropriate in the context of 'reason to believe': "The words 'considers it necessary' postulate that the authority concerned has thought over the matter deliberately with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word 'consider' is to attentively survey, examine ... mentally to think over, mediate on ... to think deliberately, to think oneself..."

The court pointed out that 'reason to believe' cannot be said to exist unless there is application of mind as to whether a particular state of affairs exists or does not exist at a particular time. Section 110(1)of the Customs Act, 1962, authorises seizure of goods if a competent officer has "reasonable cause to believe" that any goods are liable to confiscation under the Act. The Supreme Court characterised the power in Asst. Collector v. Charan Das Malhotra95 as an 'extraordinary' power as it was founded on a 'mere reasonable belief. S. 110(1)does not contemplate any enquiry at the stage of seizure of goods, the only requirement being the 'satisfaction' of the concerned officer. Even so, held the Court, "such satisfaction" "is not absolutely subjective in as much as the reasons for his belief have to be relevant and not extraneous". under S. 110(2),Customs Act, goods seized under S. 110(1)are to be returned to the person from whom they were seized within six months of the seizure of the goods, unless a notice in respect thereof is given under clause (a) of S. 124.96 The Collector of Customs may, on sufficient cause being shown, extend the six months' period for another period of six months. The Supreme Court has explained the implication of these provision in Chuharmal v. Union of India97 in the following words : "Extension of time takes away a valuable right of a party whose goods are proposed to be seized. Such deprivation of the valuable right must be upon notice, otherwise it violates the principles of natural justice."

After referring to its earlier decision in Asstt. Collector of Customs v. Charandas Malhotra,1 the Supreme Court said : "This Court affirmed the view. . . that the power under the proviso was quasi-judicial, or, at any rate one requiring a judicial approach. This Court reiterated that the right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure. Therefore, according to this Court an ex parte determination by the collector would expose his decision to be one-sided and perhaps one based on an incorrect statement of facts. How then can it be said that his determination that a sufficient cause exists is just and fair if he has done it before by onesided picture without any means to check it unless there is an opportunity to the other side to correct or controvert it?"

The Court went on to reiterate the proposition that "Whether a notice was given or not within a stipulated time for extension as contemplated under Section 110(2)is a question of fact. It is also true that the onus that the order was passed without notice, was on the person who asserts it to be so and this is a question of facts."2 If no action is taken under S. 110(2), then the goods will have to be returned to the concerned person after six months of seizure of the goods.3 under S. 132(8),Income-tax Act, books of account and other documents seized during the course of the search "shall not be retained" by the authorized officer for a period exceeding 180 days from the date of seizure unless he "records in writing" the reasons for retaining the same and obtains the approval of the

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commissioner for such retention". under S. 132(10), a person legally entitled to the books of account etc. can file objections with the Board of Revenue against the approval given by the commissioner. In Commr. of Income-tax v. Jawaharlal Rastogi,4 search was held under S. 132of the Income-tax Act. Documents seized in search were retained by the authorities for a period of 19 months without recording any reasons for retaining the same beyond the statutory period of 180 days and without obtaining approval of the Commissioner as required by S. 132 (8).5 It was held by the Supreme Court that such retention of documents was without authority of law and the documents should be released. After referring to Seth Bros.,6 the Supreme Court observed that in the instant case the High Court had noticed two important circumstances : (1) that whereas the notice dated September 14, 1964, required the assessee to furnish statements relating to the four assessment years ending on March 31, 1960, the Commissioner of Income-tax authorised search for a period of nine assessment years even before the period fixed by the notice had expired; and (2) that contrary to the plain terms of S. 132(8), the Income-tax Officer retained with him the books of account for a period exceeding 180 days. According to S. 132(8), documents seized could not be retained for more than 180 days without recording the reasons for retaining the same. In the present case, the documents had been retained for a period of 19 months. There was no order recording reasons for retaining the documents seized after the expiry of 180 days, nor was there any approval of the Commissioner for retaining such documents. The retention of documents without complying with the requirements of the statute after the expiry of the stipulated period was plainly contrary to law.7 The Supreme Court has now ruled in CIT, West Bengal v. Oriental Rubber Works that under S. 132(8), Income Tax Act, it is obligatory on the revenue to communicate to the person concerned the recorded reasons and the commissioner's approval for retaining the books beyond 180 days and that "such communication must be made as expeditiously as possible after the passing of the approval by the commissioner" otherwise "any further retention of the seized books or documents would become invalid and unlawful".8 The Court has given two reasons for such a view of S. 132(8): (1) the concerned person is materially prejudiced by retention of the books beyond 180 days; (2) such a person can file objections under S. 132(10)with the Board of direct Taxes against retention of books. He cannot do so effectively if he is unaware of the factum of the commissioner's approval as also of the recorded reasons on the basis of which such approval has been obtained. In the instant case, the Court directed the return of books of account as no such communication had been sent to the concerned person. under S. 132,Income-tax Act, the authorized officer may enter any building or place and make a search where he has reason to believe that any books of account or other documents which in his opinion will be useful for, or relevant to, any proceeding under the Act, may be found. He may seize any books of account or other documents and place marks of identification on any such books of account or other documents, make or cause to be made extracts or copies therefrom and may make an inventory of any articles or things found in the course of any search which in his opinion will be useful for, or relevant to, any proceeding under the Act, and remove them to the income-tax office or prohibit the person in possession from removing them. He may also examine on oath any person in possession or control of any books of account, documents or assets. As already stated in Seth, as a result of search, a large number of documents were seized. It was therefore argued that the I.T.O. conducting the search acted mala fide. and did not apply his mind as to which documents should be seized. The Supreme Court rejected the contention. The Court argued that any irregularity in the course of entry, search and seizure committed by the officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken provided the officer has in executing the authorization acted bona fide. The Supreme Court emphasized that the Income-tax Act and the rules made thereunder do not require that the warrant of authorization for the search should specify the particulars of the documents and the books of account : a general authorisation to search for and seize documents and books of account relevant to or useful for any proceeding complies with the requirements of the Act and the rules. It is for the officer making the search to exercise his judgment and seize or not to seize any documents or books of account. An error committed by the officer in seizing the documents which may ultimately be found not to be useful for or relevant to the proceeding under the Act will not by itself vitiate the search, nor will it entitle the aggrieved

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party to an omnibus court order releasing all documents seized. The aggrieved party may undoubtedly move a competent court for an order releasing the documents seized. In such a proceeding the officer who has made the search would be called upon to prove how the documents seized are likely to be useful for or relevant to a proceedings under the Act. If he is unable to do so, the court may order that those documents be released. But the circumstance that a large number of documents have been seized is not by itself a ground for holding that all documents seized are irrelevant or that the action of the officer in seizing them was mala fide. The mere fact that it may ultimately be found that some documents seized were not directly relevant to any proceeding under the Act or that another officer with more information at his disposal may have come to a different conclusion is not a ground for setting aside the order and the proceeding for search and seizure. The Supreme Court has clarified that seizure of a large number of documents at the search "has by itself no direct bearing on the question whether the Income-tax officer acted mala fide". It may be impossible to hold merely from the circumstance that some documents have no direct relevance to any proceeding under the Act that the entire search and seizure was made not in bona fide discharge of official duty but for a collateral purpose. If the I.T.O in making a search has reason to believe that any books of account or other documents are useful for, or relevant to, any proceeding under the Act, he may make a search and seize those books of account and other documents. In Sarjudas v. State of Gujarat,9 a big quantity of charas worth Rs. 85,000/- was found on the person of the accused persons who contended that the same was planted at the instance of third party due to enmity. The Supreme Court rejected the contention observing it to be unbelievable in view of the large quantity and value of the recovered charas and nothing was shown to prove that the panch witnesses and the police were under the influence of that third party. The object of the Gold Control Act, 1968, was to prohibit smuggling of gold into India from foreign countries. Section 66(1)of the Act ran as follows : "If any Gold Control Officer has reason to believe that in respect of any gold any provision of this Act has been, or is being or is attempted to be contravened, then he may seize : (a)

such gold along with the package, covering or receptacle, if any (and the contents thereof), in which the gold is found..."

According to the Allahabad High Court, in Collector, Central Excise v. L.K.N. Jewellers,10 the condition precedent for the application of S. 66was the "reasonable belief" that the provisions of the Act had been or were being or were attempted to be contravened. The provision was not designed to be used as a handle for indiscriminate seizures, nor did it permit capricious acts with a view to making a roving enquiry into the affairs of a dealer's business in order to fish out materials on the off chance of getting something to justify the act. The expression "reason to believe" is usually held to mean a belief held in good faith and not a mere pretence. It does not mean a purely subjective satisfaction of the officer concerned. With reference to S. 66, the High Court ruled that S. 66used the expression 'reasonable belief' and not a "belief which may subsequently be found to be reasonable." In the opinion of the court, therefore, S. 66"does not permit an indiscriminate seizure with a view to fishing out material to form a belief and justify it by reasons culled therefrom". Seizure of gold in the instant case was held to be unjustified as it was not made under a reasonable belief that the entire gold seized was gold in respect of which any provision of the Act had been contravened. The Patna High Court ruled in Bawa Gopal Das Bedi & Sons v. Union of India11 that S. 66hedged in such powers conferred on the authorities and that the powers must be strictly exercised in accordance with law. In the instant case, the petitioner, a jeweller, was a licensee under the Act. His business premises were searched and some ornaments seized. According to the department, "the fact whether there was a reasonable belief or not will be determined only after inquiry." The court ruled that this was contrary to S. 66(1). There must be some materials in order to be prima facie satisfied that some of the provisions of the Act had been violated. under S. 66, the 'condition precedent' was the 'reasonable belief' that any provision of S. 66had been infringed. Thereafter, there could be seizure of gold in respect of which contravention had been made. S. 66did not permit an indiscriminate seizure with a view "to fishing out material to form a belief

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and justify it by reasons culled therefrom". "The belief must be of an honest and reasonable person based upon reasonable grounds. It was not a matter of subjective satisfaction." As the condition precedent had not been fulfilled in the instant case, the court ruled that the power of seizure exercised by the respondents was without jurisdiction. Accordingly, the respondents were asked to return the ornaments seized from the petitioner.12 (a) Evidence not obtained Legally A question has arisen whether the government is obligated to return the documents to the individual concerned, or it could use them as evidence, when the search was illegal. In Jhaver,13 the Supreme Court held that when search was illegal, it was necessary for the Administration to return the documents and other things seized as a result of the search in question.14 But, can the evidence collected through an illegal search, like copies from the documents and books of account, be used by the department concerned? Before 1974, there was a conflict of opinion amongst the High Courts on this point. The Mysore High Court held that such an evidence could not be used,15 but the Allahabad,16 Madras17 and Delhi18 High Courts took a contrary view. But, now the Supreme Court has held in Pooran Mal v. Director of Inspection19 that even assuming that search was illegal, prohibition could not be issued to restrain the income-tax authorities from using any information gathered from the documents seized. There is no constitutional or statutory bar in using evidence obtained through an illegal search, and the Income Tax authorities can use as evidence any information gathered from the 'search and seizure' of documents and accounts and articles seized. The Court pointed out that under the Evidence Act, the test of evidence admissible in a court is 'relevancy', and relevant evidence is not excluded because it was obtained through an illegal search and seizure. This view has been reiterated in several cases since then.20 The view is now held that relevant evidence is not to be excluded merely because it was obtained by an illegal search or seizure. "Illegality of the search does not vitiate the evidence collected during such illegal search." The only requirement is that the court or the authority considering the material or evidence seized during an illegal search, has to be cautious and circumspect in dealing with such evidence or material.21 Recently, in Partap Singh,22 the Supreme Court has said in relation to a search under FERA that even if it be accepted for the sake of argument, that the recording of the reasons in advance for conducting the search is mandatory (by Reading S. 165, CrPC, into S. 37(1)of FERA), and that the non-recording of the reasons makes the search illegal, it does not mean that the documents seized during such search must be returned. Relevant evidence is not to be excluded merely on the ground that it was obtained by an illegal search or seizure. This position has again been confirmed by the Supreme Court recently in Pushpa Devi M. Jatia v. M.L. Wadhavan:23"If evidence is relevant, the court is not concerned with the method by which it was obtained." Reference has already been made to S. 100, CrPC, which requires presence of two independent witnesses from the locality at the time of search.24 The Supreme Court has ruled that assuming that the two witnesses who actually witnessed the search were not responsible inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence in support of the search and the recovery. The irregularity in the search and recovery as the terms of S. 100had not been complied with would not affect the legality of the proceedings. It would only affect the weight to be attached to the evidence.25 Thus, for all practical purposes, courts have annihilated any distinction between a legal and illegal search and seizure and have removed all pressure on the enforcement officers to follow the law strictly regarding search and seizure. The courts in India have followed in this connection the position prevailing in England. Lord GODDARD, C.J., on behalf of the Privy Council observed in Kuruma:26 ". . . the test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained."

In the House of Lords in R. v. Sang,27 the principle has been reiterated that if evidence was admissible, it

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matters not how it was obtained. It will be instructive to take note of the position prevailing in this regard in the U.S.A. The general rule in the USA is that the evidence obtained illegally must be excluded in an agency hearing. This rule emanates from the due process clause in the U.S. Constitution as well as the Fourth Amendment.28 The Supreme Court has also stated that extending the exclusionary rule would be a deterrent to police misconduct. As Justice WHITE observed in INS v. Lopez-Mendoza :29"The exclusionary rule rests on the Court's belief that exclusion has a sufficient deterrent effect to justify its imposition...." But, recently, the U.S. Supreme Court has relaxed the rule somewhat by ruling by a majority in the above-mentioned case that the exclusionary rule does not apply in civil deportation proceedings. The Court weighed the social benefit of excluding such evidence against the social cost. On the benefit side is the deterrence aspect--to deter future unlawful conduct by administrative authorities; the social cost involved is the "loss of often probative evidence". In Janis, the Supreme Court allowed use of such evidence in civil tax assessment proceedings. This judicial approach has been criticised by administrative lawyers. It has been argued by them that "the costbenefit analysis is problematic because it is subjective. Each judge applying the costbenefit analysis will attach different weights to such amorphous concepts as freedom from unreasonable searches and seizures, judicial integrity, and the cost of excluding credible evidence."30 According to Schwartz, constitutional choices must be made and assessed as "fundamental choices of principle," not as "instrumental calculations of utility or as pseudoscientific calibrations of social cost against social benefit.. .."31 In Subbiah,32 a sub-inspector of police, after a surprise check of the vehicle of the petitioner, reported to the government that while the petitioner had a license for a contract carriage he was using his vehicle as a stage carriage. On the basis of this report, a claim for additional levy was made on the petitioner. He argued that the sub-inspector's report could not be taken into consideration to demand extra levy from him as the sub-inspector was not authorized to conduct check on vehicles. The Court rejected the argument saying that the government was entitled to use all relevant materials even though collected by an unauthorized person. under S. 15(1)of the Suppression of Immoral Traffic in Women and Girls Act, 1956, a special police Officer, whenever he "has reasonable grounds for believing that an offence punishable under this Act has been committed", may after recording the grounds, enter and search such premises without a search warrant. S. 15(2)requires presence of two or more respectable witnesses of the locality to be present at the time of the search. In Bai Radha v. State of Gujarat,33 the necessary document was prepared by the officer concerned long after the search and it hardly contained any ground on which he had formed the belief with regard to the matters stated in S. 15(1). Also, the search was not held in conformity with S.15(2) as the witnesses present were not from the locality but from outside. It was therefore argued that the search was illegal and without jurisdiction. The Supreme Court however overruled both the objections saying that the recording of reasons did not confer jurisdiction on the officer to make the search though it was a necessary condition for doing so : The jurisdiction or power to make the search was conferred by the statute and not derived from the recording of reasons. The trial of the appellant was not vitiated unless it was shown that prejudice was caused to her by non-compliance with Ss. 15(1)& (2). Here the Court gave preference to suppression of the criminal activity over the safeguards given to the concerned person by law. 6. CONFISCATION There are a number of statutory provisions which authorise administrators to pass orders for confiscation of private property to the government in certain circumstances.34 An essential difference between seizure, discussed above, and confiscation is that while the former is regarded as an administrative act, and an order seizing some property can be passed by the concerned officer without giving any hearing to the affected person, confiscation of property cannot be ordered without giving to the affected person a reasonable opportunity of being heard. To take one example, S. Section 111, Customs Act, 1962, makes provision for confiscation of goods in certain circumstances by the customs authorities. But, according to S. 124, no such order can be made without fulfilling the following three conditions :

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(1) (2) (3)

A notice in writing be given to the concerned person informing him of the grounds on which it is proposed to confiscate the goods in question; He be given an opportunity of making a written representation against the grounds of confiscation; and He be given a reasonable opportunity of being heard.

S. 124thus superimposes the norms of natural justice on the power of confiscation. But, even if the statute were silent on this point, the courts would have implied the norms of natural justice when an order of confiscation was going to be passed by an official. It may also be mentioned that a study of the various statutory provisions authorising confiscation of property shows that the above-mentioned three conditions in S. 124regarding notice, written representation and hearing are the standard safeguards which are imposed by every statutory provision authorising confiscation. In Salim,35 the Kerala High Court invalidated an order confiscating timber passed under the Kerala Forest Act as no notice and hearing were given to the concerned person by the forest officer before passing the order.36 7. RELEVANT CONSTITUTIONAL PROVISIONS Is there any constitutional protection available against unreasonable searches and seizures? The two relevant articles in connection with search and seizure are Arts. 19(1)(g)and 21. Art. 19(1)(g)guarantees to the citizens the right to practise any profession or to carry any occupation, trade or business, subject to the reasonable restrictions to be imposed by law. Article 21provides that a person is not to be deprived of his personal liberty except according to procedure established by law. As interpreted by the Supreme Court in Maneka Gandhi37 the word "procedure" means "due and fair procedure".38 Prior to the 44th Constitutional Amendment, 1978, Art. 19(1)(f), which guaranteed the right to acquire, hold and dispose of property was also relevant but the provision was deleted by the said Amendment. Search and seizure touch both upon the rights contained in Art. 19(1)(g) and Art. 21. Search of residence of a person disturbs his quiet user and enjoyment thereof and thus his personal liberty to that extent is adversely affected, and search of business premises and seizure of account books, etc., affects the right to carry on his business. There is no case so far in which Art. 21may have been invoked to challenge the constitutionality of the power of search and seizure, but in several cases its constitutionality has been challenged under Arts. 14, 19(1)(f) and 19(1)(g). But in view of various procedural safeguards provided in the statutes, the courts have found the power of search and seizure to be constitutionally valid. Thus, in Sharma v. Satish,39 the Supreme Court rejected a challenge under Art. 19(1)(f)to a law conferring power on the government to search the business premises and seize the records of an individual under a search warrant. The Court held that Art. 19(1)(f)was not violated because search and seizure constituted only a temporary interference with the right to hold the premises searched and the articles seized and was made for a limited purpose of lawful investigation. In Jhaver,40 the provision for search and seizure in the Madras General Sales Tax Act was challenged under Arts. 19(1)(f)and (g) on the ground that no procedural safeguards were available subject to which the power was to be exercised. The Supreme Court, however, rejected the challenge by importing the safeguards of S. 165, CrPC, to searches under the Act in question. It was also argued that the provision in question authorised the government to empower any officer to conduct search and this meant that even an officer of low status could be so empowered. The Supreme Court, agreeing with the position that any officer could be authorised to conduct a search under the statute, nevertheless, refused to strike it down as there was no reason to think that the government would not empower officers of proper status to make searches.41 In Pooran Mal v. Director of inspection,42 the Supreme Court held the search and seizure provisions of the Income Tax Act to be constitutional. It has been held that there is a special relationship between a ration shop dealer and the government which appoints him. His position is that of an agent and principal and in that capacity he is accountable to the government. "The abstract principle of the safeguard and invasion by the State of a private citizen's right

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does not arise" in such a case. The provisions of the Essential Commodities Act, 1955 and of the rationing order issued thereunder providing for search and seizure without procedural safeguards have, therefore, been held to be not unconstitutional.43 In the whole discussion regarding search and seizure, the main emphasis has to be on procedural safeguards so that the power may be exercised properly and reasonably. But the position in this regard does not appear to be clear. The courts have not spelled out of the relevant constitutional provisions any minimum procedural safeguards to be followed in this respect. The difficulties inherent in the situation, however, need to be appreciated. In the case of search and seizure, swiftness of action and surprise are necessary elements, otherwise the whole idea underlying search would be frustrated. Hence, no right of making representation, or of being heard, can be conceded to the individual concerned at the stage of deciding whether a search should be ordered or not,44 for if he were to be given a notice of the impending search, he would get time to dispose of the relevant materials and frustrate the purpose of search. The only safeguard which the courts appear to insist, though not always consistently, is that some reasons for ordering search should be recorded. Though reasons may not be disclosed to the party, still the recording of reasons provides an important safeguard against arbitrary exercise of power as the court may examine them later on when the action is challenged. But the difficulty in this respect is that such a stipulation can be imposed only when the statute in question itself makes the necessary provision, or makes the provisions of the CrPC applicable to a search under it. If the statute does not do this, then it remains doubtful whether the courts would read such a requirement by invoking Art. 19(1)(g) or Art. 21. In Jhaver,45 the provision in question was held valid on the basis of the stipulation of recording of reasons, but the negative proposition that a provision would be unconstitutional if no such safeguard is available, cannot be taken for granted. It may be noted that in Sheonath,46 although such a requirement was not applicable, nevertheless, the court did not examine the constitutionality of the provision. Even the safeguard of "recording of reasons" may be mythical, for it is not clear, as to how elaborate or explicit the reasons recorded must be. It remains doubtful if the courts would go into the question whether the reasons recorded are sufficient to order a search. Another point not yet settled is the status of the officer who should have the power to order a search. Normally, at present, statutes do take care to vest such a power in high officials, e.g., the Income Tax Act gives the power to order a search to the commissioner of income tax. But it cannot be maintained that there is any constitutional compulsion that the power must be vested in a high official and that it cannot be vested in officials of low status. The observations made by the Supreme Court in Jhaver do not lay down any definite proposition on the point. The Court only expressed a hope that the power to order search would be conferred on officers of some status. As has been observed above, power of search and seizure is a drastic power and the question of proper safeguards is a perennial question in this area. It might be of interest to note that the Committee on Subordinate Legislation of Lok Sabha has taken objection to conferment of broad powers of entry into premises, search and seizure, by rules made under various statutes. The Committee has insisted that such powers must be subjected to such safeguards as--the officers exercising powers of search should pay due regard to the social and religious customs of the occupants of the premises; witnesses be present at the time of search; an inventory of goods should be prepared. As a consequence thereof, the government has made certain modifications in the rules concerned incorporating the suggestions of the Committee.47 These suggestions of the Committee cover the actual conduct of search, but not the presearch stage, i.e. the stage when the order for conducting a search is going to be issued by the authority concerned. In the end, a basic question needs to be raised. The power of search and seizure under the Income Tax Act is too broad. The question is : should the search power under the Income Tax Act be broader than the search power conferred on the state by the Criminal Procedure Code for investigation of ordinary criminal offences? In this area, there are involved two competing public interests. One, offences involving tax frauds should be detected and punished; two, the individual has a right to be protected by law from unjustified interference with his use and enjoyment of his private property. Therefore, it appears to be appropriate that the Income Tax Act (and may be all other tax laws) be suitable amended so as to incorporate therein specifically the safeguards for the assessees on the lines of S. 165, CrPC. As regards the judicial attitude in this area, it may be worthwhile to take note of what Lord DENNING said in a Search case :48"Once great power is granted, there is a danger of it being abused. Rather than risk such abuse, it is as I see it, the duty

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of the courts so to construe the statute as to see that it encroaches as little as possible upon the liberties of the people. . ." In England, the search warrant is issued by a judicial authority; the revenue officer places information before such authority on oath and the revenue officer can act with the approval of the Board given in relation to the particular case. (a) Self Incrimination A fundamental canon of Anglo-American criminal jurisprudence is the privilege against selfincrimination which is guaranteed in India by Art. 20(3)of the Constitution which runs as : "No person accused of any offence shall be compelled to be a witness against himself." At times, certain statutes also provide the same protection, e.g., S. Section 9of the Factories Act states that "no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself."49 In some cases, a person may be compelled to answer incriminating questions but he is given immunity against criminal proceedings, e.g., S. 6 of the Commissions of Inquiry Act, 1952.50 Art. 20(3), as interpreted by the Supreme Court, has become inapplicable to administrative inquiries. In Raja Narayanlal Bansilal v. Mistry,51 or receiving the report of the Registrar of Companies that the appellant managed companies were being run in fraud of the contributories and disclosed an unsatisfactory state of affairs, the Government of India appointed an inspector to investigate into the affairs of the companies in question. The inspector who could examine any person on oath was told to bear in mind that for a successful prosecution of the appellant, the evidence in support of the charge must be "clear, tangible and cogent." The appellant claimed the privilege against selfincrimination under Art. 20(3)on the ground that the main object of the investigation was to discover whether he had committed any offence or not. Rejecting his claim, the Court held that the privilege was available to an accused person only, and as no formal accusation was laid against the appellant, he could not claim the privilege. The report of the registrar could hardly amount to an accusation; it was submitted to the government to enable it to decide whether it should undertake an investigation. The investigation was not held on the basis of the registrar being the complainant, nor was it his function to find out whether the said accusation was proved or not. The purpose of the inquiry was to find out how the affairs of the company were being carried on; a prosecution might be launched ultimately against the appellant but that could not retrospectively change, the complexion or the character of investigation. The Supreme Court adopted a similar approach in Joseph Augusthi v. Narayanan.52 under S. 45-Gof the Banking Companies Act, 1949, after an order for winding up a banking company has been made, the official liquidator submits a report whether, in his opinion, any loss has been caused to the bank by directors' acts or omissions amounting to fraud. The High Court can then publicly examine the directors. The Supreme Court conceded that S. 45-Gdid compel a person to answer incriminating questions put to him by the High Court, and subsequently even charges might be levelled against the directors, nevertheless, the privilege against selfincrimination did not apply as there was no formal accusation against the directors at that stage. In Ramesh Chandra Mehta v. State of West Bengal,53 it was held by the Supreme Court that Art. 20(3)was not applicable to investigations by a customs officer to find out smuggling of goods as at that stage there was no formal accusation against anybody, and any confessional statement obtained from the accused was admissible in a subsequent trial for the offence.54 By construing the word "accused" in Art. 20(3)as a person "formally accused of an offence", the Supreme Court has made its protection practically inapplicable to administrative proceedings. Such an approach is full of pitfalls for the individual, as the evidence collected against the individual might be later on used against him at the prosecution stage, and the court has provided an easy way out to the executive to by-pass Art. 20(3)and extract incriminating evidence from the individual concerned through the technique of an administrative inquiry. As against this, the position, perhaps, on the other extreme, is taken by the U.S. Supreme Court to apply the privilege contained in the 5th Amendment of the Constitution55 to administrative proceedings. If it becomes necessary to compel a person to give evidence incriminating himself in the interest of the state, then he must be given absolute immunity not only against the use of the testimony subsequently, but also against prosecuting him or subjecting him to any penalty or forfeiture on the matter connected with his testimony. A partial immunity protecting the witness only against the use of his compelled

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testimony as evidence against him is not considered adequate as it does not bar the use of this testimony to search out other evidence to be used against him in criminal proceedings.56 This absolute immunity has been found to act as a hindrance to law-enforcement against the offenders. The best course to adopt in India in this respect is that which is embodied in S. 6 of the Commissions of Inquiry Act which prompts a person to come forth to give evidence on the stipulation that it will not be used against him in any subsequent proceedings except in a prosecution for giving false evidence.57 Such a guarantee also discourages the administration from bullying or browbeating the individual into giving incriminating evidence.58 The position is not yet settled in India on the question of the applicability of the privilege against selfincrimination against compulsory production of documents or the requirement to file returns or reports. There is dicta in an early Supreme Court decision, Sharma v. Satish,59 to the effect that the privilege covers documentary evidence. But then in State of Bombay v. Kathi Kalu Oghad,60 the Supreme Court threw doubt on this proposition and stated that "to be a witness" in its ordinary grammatical sense means giving "oral testimony", and it stated regarding production of documents that "if it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document."61 The Supreme Court has held by a majority in State of Gujarat v. Shyamlal Mohanlal Choksi62 that an accused person cannot be asked to produce documents under S. 94(1), CrPC, as it makes no exception in favour of the non-production by the accused of documents which are incriminatory and based on his personal knowledge as laid down in Kalu Oghad. In the U.S.A., a distinction is drawn between records required to be kept by law and other records, and the privilege is not available in respect of the former.63 The privilege has not been applied in India to searches and seizures or seizure of documents under a search warrant. In Sharma v. Satish,64 it was held that search and seizure of a document under the provisions of S s. 94 and 96, CrPC (old) or S. 91, CrPC (New) is not a compelled production within the meaning of Art. 20(3), and hence would not offend the said Article. The Supreme Court has held that Art. 20(3)is not violated when under a search warrant all relevant documents are seized whether the documents contained the person's statement conveying his personal knowledge and which might have a tendency to incriminate him or not.65 In the U.S.A., on the other hand, the privilege extends to search and seizure of property having an evidentiary value, as distinguished from property used in the commission of crime under a search warrant.66 Somewhat analogous to Art. 20(3)is S. Section 25 of the Indian Evidence Act, 1872 which says that "No confession made to a police officer shall be proved as against a person accused of any offence". Is a customs officer investigating violations under the Customs Act a police officer within the meaning of the Evidence Act? It has been held in several cases that he is not and, therefore, S. 25does not bar the admissibility of a confessional statement made to a customs officer.67 In Poolpandi v. Superintendent, Central Excise,68 the Supreme Court has answered in the negative the question whether persons are entitled to the presence of their lawyers when they are being questioned by concerned officers during investigation under the Customs Act or the Foreign Exchange Regulation Act. It is a well established proposition that the guarantee against selfincrimination can be claimed only by a person who is accused of an offence at the time he is compelled to make the incriminating statement. "It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence," said the Court in Poolpandi. The Court also rejected the argument that to call a person away from the comforts and convenience of his home to the customs office and to question him there without the assistance of a lawyer amounts to mental torture which violates Art. 21. It seems from the cases mentioned above that the Supreme Court has adopted a much more stringent attitude in respect of economic offences than ordinary criminal offences. Many safeguards which would be available to persons accused of criminal offences are not available to persons being investigated under the statutes like the Customs Act, FERA etc. 8. POWER OF INSPECTION Besides the power of search and seizure discussed above, a power less drastic in nature, but falling in the

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same genre, is the power of inspection conferred on administrative authorities under various statutes. The purpose of inspection is law enforcement; it ensures continunal compliance with the law. Usually, the inspection power provides for entering the premises and examining books, records etc. Thus, S. 133-A of the Income Tax Act, 1961, provides that an income tax authority may enter business premises of a person during business hours to inspect books of account or other documents as may be available there. He may take extracts from them and place marks of identification on them, but he is not empowered to take away these materials with him. S. Section 43 of the Foreign Exchange Regulation Act, empowers an enforcement officer (not below the rank of Assistant Director), especially authorised by the Director of Enforcement, or an authorised officer of the Reserve Bank to inspect the books and accounts and other documents of any authorised dealer. It is the duty of the dealer to produce before such officer all such books, accounts and other documents in his custody as the officer may require. under S. 4Bof the Imports & Exports (Control) Act, 1947, an authorised officer can enter, at any reasonable time, any premises in which any imported goods or materials which are liable to confiscation under the Act, or any books of account are kept which, in his opinion, will be useful for, or relevant to, any proceeding under this Act, are suspected to have been kept and inspect such imported goods, materials, books of account or other documents and may take such notes or extracts from such books of account or other documents as he thinks fit. The Factories Act, 1948 and the Weekly Holidays Act, 1942inter alia provide other examples of the statutes conferring power of inspection. under S. Section 2of the Factories Act, inspectors are empowered to enter any factory premises to find out whether any violation of law is being committed. Such an inspection may result in the prosecution of the factory-owner in a court of law. Normally, the use of the word 'inspection' in a statutory provision does not signify a power of search unless the context indicates otherwise.69 Inspection ensures that the person concerned is properly observing the provisions of the law. Where an inspection results in an adverse report, a variety of unpleasant consequences may follow. The power of inspection includes the power to seize the documents or books for purposes of inspection. In Mangat Rai v. State of Madhya Pradesh,70 the tax official while inspecting the shop of the assessee attempted to seize certain documents with which the assessee's son wanted to run away. The Supreme Court ruled that the official was justified in doing so otherwise an assessee who does not want any particular paper or book to be inspected might snatch away the same from the tax official leaving him helpless to do anything in the matter. In case of inspection also, as in case of search, the question arises whether sufficient procedural safeguards have been provided for in order to protect the privacy interests of the concerned individuals. 9. CALLING FOR REPORTS, RETURNS, INFORMATION The powers to specify what records are to be maintained by the concerned persons, or to prescribe returns which may have to be filed periodically with designated administrative authorities, or to call for reports, returns, documents and other relevant information, are usually conferred on administrative officials by regulatory laws, e.g., the Essential Commodities Act, 1955 and the orders promulgated thereunder.71 Information gathered through returns and statements periodically sent to the concerned authorities enable them to monitor and keep under observation the operation of regulations in force so that necessary adjustments may be made therein from time to time as may be warranted by the exigencies of the situation. In tax statutes, such as the Income Tax Act, 1961, a liability is imposed on assessees to file annual returns of their income. under S. 139of the Act, every person having taxable income is required to file a return giving details of such income before a specified date every year, and this constitutes the starting point in the process of tax assessment.72 Under S.133A, income tax authorities are authorized to require certain types of information (mentioned in the provision) from the assessees and under S. 133B, an income tax authority may enter any business premises during office hours to collect any information which may be useful for, or relevant to, the purpose of this Act. S. Section 234of the Companies Act empowers the Registrar of Companies to call for information or explanation. Sub-sec. (1) provides that if on perusing any document which a company is required to submit to him under the Act, the registrar is of opinion that any information or explanation is necessary with respect to a matter to which such document purports to relate, he may, by a written order, call on the company to

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furnish the said information or explanation within such time as he may specify in the order. It then becomes the duty of the company and its officers to furnish information or explanation. If such information or explanation is not furnished or is, in the opinion of the Registrar, inadequate, the registrar has the power to order production of such books and papers he thinks necessary for his inspection and thereupon it is the duty of the company and its officers to produce such books and papers. Sub-sec. (4) provides for penal consequences for failure to furnish information or explanation or to produce the books and papers. (a) Summoning of Persons to give Evidence and Produce Documents Several statutory formulae are used for the purposes mentioned above. Power to summon persons to give evidence is a necessary element of the inquiry procedure. If the enquiry body does not have such a power then it can only request persons to come forward to testify before it and it is upto their sweet will to testify or not. This may not prove effective. Thus it is necessary for an effective inquiry to proceed, that the enquiry authority is given some coercive powers to summon persons to testify or produce necessary documents in their possession which may be relevant to the inquiry. Thus, S. Section 108of the Customs Act empowers any gazetted officer of customs to summon any person for giving evidence or for the production of any documents in any inquiry in connection with any smuggling of goods. under S. 107, a similar power can be exercised by any officer of customs empowered in this behalf by the Collector of Customs.73 S. 39, FERA, empowers any authorised Enforcement Officer to conduct investigation to require any person to produce or deliver any document relevant to such investigation, or to examine any person acquainted with the facts and circumstances of the case. S. 40, FERA, authorises any gazetted officer of Enforcement to summon any person whose attendance he considers necessary either to give evidence or to produce a document during the course of any investigation.74 Thus, Ss. 39 and 40, FERA are synonymous with/ Ss. 107 and 108, Customs Act. However, many a time, a standard statutory formula used for the purpose is to say that the designated authority will have the power of a civil court, while trying a suit under the Code of Civil Procedure, 1908 for enforcing attendance of witnesses, examining them on oath, requiring discovery and production of documents, etc.75 An authority having such a power can issue summons to a person either to attend to give evidence or to produce documents. In the United States, though an administrative authority may possess the power to issue summons, yet the summons against a recalcitrant witness can be enforced only through the court.76 In India, a civil court can enforce its summons under S. 32 and Order 16of the CPC through such sanctions as issuing warrants of arrest of the person summoned, attaching and selling his property, ordering him to furnish security for attendance and in default committing him to civil prison, and imposing a fine up to Rs. 500. It is doubtful whether an administrative authority having the power of a civil court to issue' summons can itself impose these sanctions. It seems that if the authority wants to enforce the summons through any of these sanctions, then it has to approach a civil court.77 However, the concerned statute itself may give power to the concerned authority to impose fines for default in obeying the summons for attendance or production of documents.78 The coercive powers may be quite drastic, and this raises the question of proper safeguards to the individual against misuse of these powers. In some statutes, like the Income Tax Act, express provisions exist for appeal to higher administrative authorities against penalties imposed under the Act in question. The sanctions mentioned above are for failure to appear or produce documents in response to the summons. No punishment is prescribed either in the CPC, or the Income Tax Act, for failure to furnish information by a person, to bind himself on oath, or to answer questions. Whenever the legislature desires to impose such an obligation it expressly provides for the same in the specific statute. In this respect, S. 5(2)of the Commission of Inquiry Act, 1952 provides that any person required to furnish information shall be deemed to be legally bound to furnish such information within the meaning of Ss. 176 and 177of the IPC. Further, S. 5(4) provides that the commission shall be deemed to be a civil court and when any offence as is described in Ss. 175, 178, 179, 180 or 228of the Indian Penal Code is committed in the view or presence of the commission, the commission may, after recording the facts constituting the offence and the statement of the accused, forward the case to a magistrate having jurisdiction to try the same.79 The magistrate shall then hear the complaint against the accused. The result is that when a person having obeyed the summons of the commission presents himself before it, but then refuses to take oath or give evidence, he makes himself liable to be punished under Ss. 178 and 179of the IPC. The power to punish lies with the magistrate and not with the commission.

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An interesting question arose in State of Jammu and Kashmir v. Anwar Ahmed Aftab80 as to whether the government can claim privilege under S. Section 123 of the Indian Evidence Act of not producing its unpublished record81 when required to do so under S. 4of the J&K Commission of Inquiry Act,82 62. The Government of Jammu and Kashmir appointed a commission to enquire into the firing that took place in Srinagar in 1964. An application was filed before the commission requesting it to ask the government to produce certain documents. The government objected to producing the documents on the ground that they were either irrelevant or were official records in respect of which the government could claim the privilege under S. Section 123 of the Indian Evidence Act. The commission overruled the government's contention and held that the documents were relevant to the inquiry. The High Court refused to interfere with the commission's order. It stated that under S. 4, CI Act, the commission has power to call for documents as provided in the CPC. By applying certain provisions of the CPC, the commission does not become a court for all purposes.83 No privilege under S. 123of the Evidence Act can be claimed as the Act does not apply to inquiry commissions, and the commission has power to require production of relevant documents.84 Order 16, Rule 5of the CPC places restrictions on the power of the court (and, consequently, on the administrative body also) that any particular document, which a person summoned is called to produce, is to be described in the summons with reasonable accuracy. Still, a great deal of latitude is permissible to the authorities concerned in this respect as is depicted by Narayanadoss v. T.N. Rao.85 An officer appointed under the Commissions of Inquiry Act, to enquire into allegations of widespread mismanagement of properties of the Hindu religious and charitable trusts, required the petitioner to produce "all documents, accounts and other material" in his possession or control relating to a specific institution. It was argued that the summons should have spelled out the documents to be produced, but the court found the summons to be valid. In the opinion of the court, the inquiry officer was trying to find out in what manner and to what extent there had been mismanagement of the properties in question, and in the nature of things he could not have furnished a list of documents to be produced. However, a different approach is depicted by the Supreme Court judgment in Barium Chemicals Ltd. v. A.J. Rana.86 Herein was involved an order to produce documents under S. 19(2)of the Foreign Exchange Regulation Act, 1947. This section was equivalent to S. of FERA. The section authorised the Central Government to obtain and examine, if it considered it necessary or expedient, "any information, book or other document in possession of any person" for the purpose of the Act. The Supreme Court held that it was necessary to specify in the order made by the government the information, books or other documents required by it. It quashed the government order which had specified the documents to be produced but some of which did not have even the remotest bearing on the matters covered by the Act. The Court observed that "there has to be some nexus between the documents sought to be obtained and the purpose of the Act." Where such nexus is missing, and the document has no relevance for the purpose of the Act, the condition precedent to the making of an order under S. 19(2)would be non-existent. In the United States, it may be noted, there is a constitutional safeguard against vague, oppressive or unreasonable summons87 but no similar protection is available in India. Reference has already been made to the provision in FERA authorising an enforcement officer to require the person concerned to furnish "such information, book or other document" as is specified and "thereupon such person shall be bound to comply with such requisition."88 Section 55of the Gold Control Act required every licensed gold dealer to keep in such form and in such manner as may be prescribed, a true and complete account of the gold owned, possessed, held, controlled bought or otherwise acquired or accepted or other wise received or sold, delivered, transferred or otherwise disposed of by him in his capacity as such licensed dealer. An Act levied a cess on certain commodities and also imposed an obligation on certain categories of millowners to file the prescribed returns with the collector. The returns had to be filed in order to assess the cess due. In Dhanpat,89 the petitioners failed to file the returns. The concerned authority issued a notice requiring them to appear before him in connection with the nonfiling of returns. The petitioners filed a writ petition challenging the jurisdiction of the concerned authority to take any penal action against them for not filing the returns. Their contention was that as the designated officer (collector) had not been appointed, they were not liable to any penalty for nonfiling of the returns. The Supreme Court ruled that the petitioners were

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not liable to any penalty when the collector to whom the returns had to be furnished was not appointed. The Court observed, "It would be true to say that unless there is a 'collector' within the contemplation of the Act, there can be no obligation on any occupier of a mill to furnish monthly returns." However, after the appointment of the collector, obligation to file returns arose for the entire period including the period prior to his appointment.

1 See, infra. 2 See, infra. 3 Law assumes the existence of rights and liberties of the individual and "steps in for regulating those rights and liberties in the interest of social living." See, Deoman v. State, AIR 1959 Bom 284 [LNIND 1958 BOM 128] [LNIND 1958 BOM 128] [LNIND 1958 BOM 128]; Capital Multipurpose Co-operative Societies v. State of M.P., AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: (1967) 3 SCR 329; Art. 21of the Constitution provides that no person can be deprived of his personal liberty without procedure established by law : infra, Chapter XVII. 4 The Capital Multi-Purpose Co-operative Societies v. State of Madhya Pradesh, AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND 1967 SC 399] [LNIND 1967 SC 399]: (1967) 3 SCR 329. 5 See Chapter VI, supra, under Consultation under Delegated Legislation : also see, infra, Vol. II, under Open Government. 6 DAVIS, Administrative Law Treaties, I, 160 (1958). Also, WRAITH AND LAMB, Public Inquiries as an Instrument of Government (1971) : Sir IVOR RICHARDSON, Commission of Inquiry, (1989) Otago LR 1. For an example of this see, infra. 7 Supra, Chapter XV. 8 See, The Report of the Companies Act Amendment Committee (1957). 9 Infra, for discussion on this Act. 10 Infra. 11 For example, see, State of Orissa v. Janamohan Das, AIR 1993 Ori 180 [LNIND 1993 ORI 70] [LNIND 1993 ORI 70] [LNIND 1993 ORI 70]; JAIN, Cases, Chapter XVII, Sec. B. 12 See, under heading : ' The Commission of Inquiry Act, 1952', infra, this chapter. 13 The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]; see, JAIN, Cases, Chapter XVII, Sec. B. 14 AIR 1988 Ori 18 [LNIND 1986 ORI 23] [LNIND 1986 ORI 23] [LNIND 1986 ORI 23]; JAIN, Cases, Chapter XVII, Sec. A. 15 For S. 5. CI Act, See, under : ' The Commission of Inquiry Act, 1952', infra this chapter; and For S. 11, see, supra. 16 See, infra, Vol. II, under Judicial Control : Certiorari. Also see, supra, Chapter XIV. 17 See, supra, Chapter IX. 18 Re Pergamon Press Ltd., (1970) 3 All ER 535. See, JAIN, Cases, Chapter XVII, Sec. A. 19 State of Andhra Pradesh v. N. Chandrashekhara, AIR 1988 SC 1309 : (1988) 3 SCC 534 : 1989 LIC 249. 20 AIR 1971 Ori 175; JAIN, Cases, Chapter XVII, Sec. A. 21 For Certiorari, see, infra, Vol. II. 22 (1967) 2 QBD 864; also, infra, Vol. II, under Judicial Control & Certiorari. 23 See, infra, for this provision. Also see, JAIN, Cases, Chapter XVII, Sec. B. 24 See, supra, Chapter XV. 25 Infra this chapter. 26 AIR 1993 SC 1082 : 1993 Supp (4) SCC 260. 27 Hari Pada Khan v. U.O.I., (1996) 1 SCC 536 [LNIND 1995 SC 1234] [LNIND 1995 SC 1234] [LNIND 1995 SC 1234], para 4 : AIR 1996 SC 1065 [LNIND 1995 SC 1234] [LNIND 1995 SC 1234] [LNIND 1995 SC 1234].

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28 For relevant provisions in the Income Tax Act, see, JAIN, Cases, Sec. A., Chapter XVII. 29 A commissioner of railway safety conducts an inquiry whenever a passenger train meets with an accident resulting in loss of human life or grievous hurt to a passenger, or serious damage to railway property. the commissioner has power to summon witnesses/documents : see, S s. 5 and 114 of the Railways Act, 1989. 30 under S. Section 136 of the Motor Vehicles Act, 1988, the person authorised by the State Government may inspect the vehicle involved in an accident. 31 S s. 357to 372 of the Merchant Shipping Act, 1958. 32 S. Section 7of the Indian Aircraft Act, 1934. See, JAIN, Cases, Chapter XVII, Sec. A. 33 Supra, Chapter I. See, JAIN, Cases, Chapter I. 34 Ss. 15to 18A. For the text of these provisions, see, JAIN, Cases, Chapter XVII, Sec. A. 35 S. 16. 36 S. 18-A. 37 S. 35. 38 Ss. 235 and 236. For the text of these provisions, see, JAIN, Cases, Chapter XVII, Sec. A. 39 Ss. 242to 244. 40 Raja Narayanlal Bansilal v. Maneck Phiroze, AIR 1961 SC 29 [LNIND 1960 SC 186] [LNIND 1960 SC 186] [LNIND 1960 SC 186], 39 : 1961 (1) SCR 417 [LNIND 1960 SC 186] [LNIND 1960 SC 186] [LNIND 1960 SC 186] : (1960) 30 Comp Cas 644; JAIN, Cases, Chapter XVII, Sec. A. 41 Moolchand Gupta v. Jagannath Gupta & Co., AIR 1979 SC 1038 : (1979) 4 SCC 729. 42 Percy Rustomji Basta v. State of Maharashtra, AIR 1971 SC 1087 [LNIND 1971 SC 174] [LNIND 1971 SC 174] [LNIND 1971 SC 174]: 1971 Crlj 933 : (1971) 1 SCC 847 [LNIND 1971 SC 174] [LNIND 1971 SC 174] [LNIND 1971 SC 174]. 43 Percy Rustomji Basta v. State of Maharashtra, AIR 1971 SC 1087 [LNIND 1971 SC 174] [LNIND 1971 SC 174] [LNIND 1971 SC 174]: (1971) 1 SCC 847 : 1971 Crlj 933; Illias v. Collector of Customs, Madras, AIR 1970 SC 1065 [LNIND 1968 SC 329] [LNIND 1968 SC 329] [LNIND 1968 SC 329]: 1970 Crlj 998 : 1969 (2) SCR 613 [LNIND 1968 SC 329] [LNIND 1968 SC 329] [LNIND 1968 SC 329]. S. 24, Evidence Act makes a confession made by an accused irrelevant in a criminal proceeding if it is caused by inducement, threat or promise. According to S. 25, "no confession made to a police officer shall be proved as against a person accused of any offence." 44 For more of such provisions in several statutes and relevant case-law see, JAIN, Cases, Chapter XVII, Sec. A. 45 See, infra, Chapter XIX. 46 Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND 1966 SC 132]: (1966) 36 Comp Cas 639; JAIN, Cases, Chapter XVII, Sec. A. 47 AIR 1969 SC 707 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428]: (1969) 1 SCC 325 : (1969) 39 Comp Cas 781; JAIN, Cases, Chapter XVII, Sec. A. 48 Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428]at 713 : (1969) 1 SCC 325 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428] : (1969) 3 SCR 108 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428]. 49 The Rohtas and Barium Chemicals cases have been examined in detail later in Chapter XIX, infra. 50 (1988) 64 Com Cas 605; JAIN, Cases, Chapter XVII, Sec. A. The Central Government has conferred its power under S. 237on the Company Law Board. 51 On this point, see further, infra, Chapter XIX. 52 New Central Jute Mills v. Dy. Secy., AIR 1966 Cal 151 [LNIND 1965 CAL 153] [LNIND 1965 CAL 153] [LNIND 1965 CAL 153]; Ashoka Marketing v. Union of India, AIR 1967 Cal 159 [LNIND 1965 CAL 155] [LNIND 1965 CAL 155] [LNIND 1965 CAL 155]; Deputy Secretary v. Sahu Jain Ltd., 40 Comp. Cas. 88 (1970); Nahar, Investigation into the Affairs of Companies under the Companies Act, 1956, (1974) 16 JILI, 415. 53 Infra, Chaps. XVII-XIX; JAIN, Cases, Chapters XV and XVI. 54 Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND

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1966 SC 132]: (1966) 36 Comp Cas 639 : (1966) Supp SCR 311; for discussion on this point, see infra, Chapter XVIII ; JAIN, Cases, Chapter XV . 55 State of Andhra Pradesh v. N. Chandrashekhra, AIR 1988 SC 1309. 56 Supra, note 33. 57 Md. Hanif v. Union of India, AIR 1964 Punj 368; Kesava Mills Co. Ltd. v. Union of India, AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570]: (1973) 1 SCC 380; JAIN, Cases, 807. 58 (1970) 3 All ER 535; supra, note 18; JAIN, Cases, Chapter XVII, Sec. A. Also, Maxwell v. Dept. of Trade, (1974) 2 All ER 122. 59 Registrar of Co-operative Societies v. K. Kunjambu, AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472]: (1980) 1 SCC 340. 60 LUCAS, Democracy and Participation (1971). Also see, infra, Chapter XIX. 61 Gullapalli Nageswara Rao v. A.P. State Road Trasport Corporation, (Gullapalli I), AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319 and Gullapalli N. Rao v. A.P.S.R.T.C. (Gullapalli II), AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580; JAIN, Cases, 896, 899. 62 Gullapalli Nageswara Rao v. A.P. State Road Trasport Corporation, (Gullapalli I), AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139]: 1959 Supp (1) SCR 319 and Gullapalli N. Rao v. A.P.S.R.T.C. (Gullapalli II), AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143]: (1960) 1 SCR 580. 63 For a comprehensive discussion on Inquiries in U.K. see, Justice-All Souls, Administrative Justice : Some Necessary Reforms, 262-330 (1988). 64 Art. 311(2)of the Indian Constitution provides that a civil servant is not to be dismissed, removed or reduced in rank except after an 'inquiry' in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The 'inquiry' here is to be held in accordance with the principles of natural justice. The disciplinary authority can hold the inquiry and decide the matter itself. Or, else, it may authorise some one else to enquire into the matter and report to it. For discussion On Art. 311(2), see, JAIN, Indian Constitutional Law, 785-794 (1987). Also see supra, Chapter IX, Under heading : Functional Approach, and Chapter X, Under heading : 'One who Decides Must Hear'; Pradyat Kumar v. C.J., Calcutta H.C. AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120] [LNIND 1955 SC 120]: (1955) 2 SCR 1331 : 1956 SCJ 259; JAIN, Cases, 797. 65 KAUL & SHAKDHAR, Practice & Procedure of Parliament, Chapter XX (1991). 66 See, Law Commission of India, Report on the Commissions of Inquiry Act, 1952, (24th Report) (1962). For text of the Report, see, JAIN, Cases, Chapter XVII, Sec. B. 67 See, for example, State of Karnataka v. Union of India, AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]: (1977) 4 SCC 608. 68 For details of the various commissions appointed, see, SC GUPTA, The Law Relating to Commissions of Inquiry (1977); VIRENDRA KUMAR, Committees and Commissions in India 1947-73. 69 AIR 1972 SC 1515 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]: 1973 Crlj 453 : (1972) 1 SCC 573 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]. 70 R.K. Dalmia, infra, Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; Harekrishna Mahtab v. v. Chief Minister, Orissa, AIR 1971 Ori 175. 71 P.R. Nayak v. Union of India, ILR (1973) I Del 747. Also see, Swadeshi Cotton Mills v. State Industrial Tribunal, U.P., AIR 1961 SC 1381 [LNIND 1961 SC 121] [LNIND 1961 SC 121] [LNIND 1961 SC 121]: 1961 (2) LLJ 419 : 1962 (1) SCR 422 [LNIND 1961 SC 121] [LNIND 1961 SC 121] [LNIND 1961 SC 121]. 72 Peoples Union for Democratic Rights v. Ministry of Home Affairs, AIR 1985 Del 268 [LNIND 1985 DEL 126] [LNIND 1985 DEL 126] [LNIND 1985 DEL 126]. Also see, Vijay Mehta v. State of Rajasthan, AIR 1980 Raj 207. 73 Rajendran v. Home Secretary, AIR 1983 Ker 59 [LNIND 1982 KER 111] [LNIND 1982 KER 111] [LNIND 1982 KER 111]. 74 For discussion on this point, see, Chapter XIX, Infra. 75 See, infra, Chapter XX, for discussion on Administrative Duties; also, JAIN, Cases, Chapter XIX. 76 Janamohan Das v. State of Orissa, AIR 1993 Ori 157 [LNIND 1992 ORI 76] [LNIND 1992 ORI 76] [LNIND 1992 ORI 76]; State of Orissa v. Janamohan Das, AIR 1993 Ori 180 [LNIND 1993 ORI 70] [LNIND 1993 ORI 70] [LNIND 1993 ORI 70]; JAIN, Cases, Chapter XVII, Sec. B. The M.P. High Court also directed the State Government to appoint a commission to enquire into the matter of Churhat Lottery. A Commission was accordingly appointed. See, State of Madhya Pradesh v. Ajay Singh, AIR

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1993 SC 825 [LNIND 1992 SC 985] [LNIND 1992 SC 985] [LNIND 1992 SC 985]: (1993) 1 SCC 302. 77 On Public Interest Litigation, see, infra, Vol. II, under Judicial Control. 78 AIR 1990 Raj 34. For further discussion on this point see, infra, under Public Interest Litigation. 79 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; Orient Paper Mills v. U.O.I., AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457]. 80 P.R. Nayak v. Union of India, ILR (1973) 1 Del 747. 81 Narayanadoss v. T. Neeladari Rao, AIR 1959 AP 148 [LNIND 1958 AP 108] [LNIND 1958 AP 108] [LNIND 1958 AP 108], 153. 82 P.R. Nayak v. Union of India, ILR (1973) 1 Del 747. 83 S. 3(1). It has been judicially held that providing of two methods of appointing an inquiry commission is not violative of Art. 14; Manabendra Sarkar v. State of Assam, AIR 1974 Gau 46For Art. 14, refer to JAIN, Indian Constitutional Law, 471-503 (1987); also, infra, Ch XVIII. 84 Orient Paper Mills v. Union of India, AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457]. 85 For these entries see, JAIN, Indian Constitutional Law, AIR 1970 SC 1651 [LNIND 1970 SC 270] [LNIND 1970 SC 270] [LNIND 1970 SC 270]: (1970) 2 SCC 225, 242-264 : AIR 1984 AP 377 [LNIND 1984 AP 121] [LNIND 1984 AP 121] [LNIND 1984 AP 121]. 86 S. 3(1)(a). Also see, State of Karnataka v. Union of India, AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]: (1977) 4 SCC 608. 87 S. 3(1) (b). 88 Ss. 3(2) and 3(3). 89 State of Jammu & Kashmir v. Anwar Ahmad Aftab, AIR 1965 J&K 75; JAIN, Cases, Chapter XII, Sec. B. For the privilege enjoyed by the government under S. 123of the Evidence Act, see, infra, Vol. II, under Open Government. 90 On Search and Seizure, see, infra, this chapter. 91 For these provisions, see, infra, this chapter under Search and Seizure. These provisions have been re-enacted in Ss. 100(1), (2), (3) and Ss. 100(4), (5), (6), (7) and (8)respectively of the CrPC, 1974. 92 AIR 1959 AP 148 [LNIND 1958 AP 108] [LNIND 1958 AP 108] [LNIND 1958 AP 108], 153. 93 For Arts. 25 and 26of the Constitution, see, JAIN, Indian Constitutional Law, 631-661. Also see, infra, Chapter XVIII; JAIN, Cases, Chapter XV. 1 See, infra, under Perjury before the Commission. 2 See, infra, under Contempt of the Commission. 3 For a discussion on this maxim, see, infra, Chapter XXI, under Sub-Delegation. 4 Allen Berry & Co. v. Vivian Bose, AIR 1960 Punj 86, 94, 95. 5 S. 6. Also see, Law Commission of India, 74th Report (1978), on the question of the extent to which the statement of a person before the commission should be used in subsequent civil or criminal proceedings if the said person is dead at the time of the trial. 6 Sohanlal P. Vaid v. State, AIR 1965 Bom 1 [LNIND 1964 BOM 3] [LNIND 1964 BOM 3] [LNIND 1964 BOM 3]. 7 Kehar Singh v. State of Delhi Adm., AIR 1988 SC 1883 [LNIND 1988 SC 887] [LNIND 1988 SC 887] [LNIND 1988 SC 887]: 1989 Crlj 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] [LNIND 1988 SC 887] [LNIND 1988 SC 887]; JAIN, Cases, Chapter XVII, Sec. B; infra, note 105. 8 Allen Berry & Co. v. Vivian Bose, AIR 1960 Punj 86, 94, 95. 9 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259] [LNIND 1961 SC 259] [LNIND 1961 SC 259]: 1961 (2) Crlj 856; Raja Narayanlal Bansilal v. Maneck Firoze Mistry, AIR 1961 SC 29 [LNIND 1960 SC 186] [LNIND 1960 SC 186] [LNIND 1960 SC 186]: 1961 (1) SCR 417 : (1960) 30 Comp Cas 644; JAIN, Indian Constitutional Law, 574-75; also see, infra, under Relevant Constitutional Provisions.

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10 For further discussion On S. 7, see (1981) 22 Guj LR 712 and AIR 1984 SC 652 : (1984) 1 SCC 684infra this chapter. 11 For discussion on this provisions see, State of Madhya Pradesh v. Ajay Singh, AIR 1993 SC 825 [LNIND 1992 SC 985] [LNIND 1992 SC 985] [LNIND 1992 SC 985]: (1993) 1 SCC 302. 12 For Natural Justice, see; supra, Chapter IX. 13 See, In re Pergamon Press Ltd., (1970) 3 All ER 535. 14 Prior to 1971, the procedural safeguards contained in Ss. 8B and 8Cwere provided in the rules and not in the Act. The Law Commission in its Report on the Commissions of Inquiry Act, 1952 (1962), suggested that these provisions be incorporated in the Act itself as "these rules embody the fundamental principles of natural justice and safeguard the rights of individuals." For text of the report, see, JAIN, Cases, Chapter XVII, Sec. B. On S. 8B, see, infra under Contempt of the Commission. 15 To begin with, a committee of two High Court Judges was appointed by the Delhi Administration under its administrative power. Later, powers were conferred on this comittee under the C.I Act. 16 Kiran Bedi & Jinder Singh v. Inquiry Committee, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]: (1989) 1 SCC 495 : 1989 Crlj 903; JAIN, Cases, Chapter XVII, Sec. B. 17 Kiran Bedi & Jinder Singh v. Inquiry Committee, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]at 726 : (1989) 1 SCC 494 [LNIND 1989 SC 10] [LNIND 1989 SC 10] [LNIND 1989 SC 10] : 1989 Crlj 903. 18 S. 8. See, State v. Justice B.P. Beri, AIR 1968 Raj 77; JAIN, Cases, Chapter XV, Sec. B. 19 The Thakkar Commission decided to sit in camera keeping in view the sensitive nature of the Inquiry. Sitting in public is the rule, sitting in private is an exception for the commission. A public inquiry instils much greater public confidence in the inquiry than a private one. 20 See under : 'Administrative Inquiries', under heading 'Inquires & Investigations', supra, this chapter. 21 P.R. Nayak v. Union of India, ILR (1973) 1 Del 747; The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]; JAIN, Cases, Chapter XVII, Sec. B. 22 S.V. Purushothaman v. State of Kerala, AIR 1983 Ker 118. 23 See, infra, under Contempt of the Commission. 24 S. 10A(2). 25 S. 10A(6). 26 See, infra, Vol. II, under Open Government. 27 Supra, Infra, this chapter. 28 AIR 1993 SC 825 [LNIND 1992 SC 985] [LNIND 1992 SC 985] [LNIND 1992 SC 985]: (1993) 1 SCC 302; JAIN, Cases, Chapter XVII, Sec. B. 29 M.V. Rajwade v. S.M. Hassam (Dr.), AIR 1954 Nag 71; Allen Berry Co. v. Vivian Bose, AIR 1960 Punj 86, 94, 95; JAIN, Cases, Chapter XVII, Sec. B. 30 M.V. Rajwade v. S.M. Hassam (Dr.), AIR 1954 Nag 71. 31 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; JAIN. Cases, Chapter XVII, Sec. B; Manohar Lal v. U.O.I., AIR 1970 Del 178 [LNIND 1970 DEL 7] [LNIND 1970 DEL 7] [LNIND 1970 DEL 7]. 32 Kehar Singh v. Delhi Administration, AIR 1988 SC 1883 [LNIND 1988 SC 887] [LNIND 1988 SC 887] [LNIND 1988 SC 887]: (1988) 3 SCC 609 : 1989 Crlj 1. 33 State of Karnataka v. U.O.I., AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]: (1977) 4 SCC 608; JAIN, Cases, Chapter XVII, See, B; Kehar Singh v. State (Delhi Adm.), AIR 1988 SC 1883 [LNIND 1988 SC 887] [LNIND 1988 SC 887] [LNIND 1988 SC 887]: (1988) 3 SCC 609 : 1989 Crlj 1; R. Balakrishna Pillai v. State AIR 1989 Ker 99, 106. 34 Shamkant v. State of Maharashtra AIR 1992 SC 1879, 1880, 1887 : 1992 Supp (2) SCC 521 : 1992 Crlj 3243. 35 The commission was appointed by the Central Government on April 6, 1964 to enquire inter alia into the extent and effect of the concentration of economic power in private hands. After making a deep study of the concentration of economic power in the country, the commission submitted its report to the Government of India on Oct. 31, 1965. As a consequence thereof, the Monopolies and Restrictive Trade Practices Act was enacted by Parliament in 1969. For some provisions of the Act, see, JAIN,

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Cases, Chapter XII, Sec. H. 36 Ram Krishna Dalmia v. Justice Tendolker, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279. 37 As for example, the Thakkar Commission was appointed to look into certain matters connected with the assassination of Indira Gandhi; Delhi Administration appointed a commission to inquire into the conduct of certain police officers involved in a police-lawyer confrontation in Delhi. 38 For these cases, see, JAIN, Cases, Chapter XV, Sec. B. 39 See JAIN, Indian Constitutional Law, 251, 263, 243 (1987). 40 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; JAIN, Cases, Chapter XV, Sec. B. 41 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]at 546 : 1959 SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]. 42 Also see, infra, under Contempt of Commission of Inquiry. 43 On Art. 14and discretionary powers, see, infra, Chapter XVIII. Also see, JAIN, Cases, XV, Vol. II. 44 Also see, Manabendra Sarkar v. State of Assam, AIR 1974 Gau 46. 45 AIR 1989 Gau 81 [LNIND 1988 GAU 42] [LNIND 1988 GAU 42] [LNIND 1988 GAU 42]; JAIN, Cases,Chapter XVII, Sec. B. 46 JAIN, Indian Constitutional Law, 251 (1987). 47 JAIN, Indian Constitutional Law, 244 : AIR 1974 Gau 46. 48 AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]: (1977) 4 SCC 608; JAIN, Cases, Chapter XVII, Sec. B. 49 State of Karnataka v. Union of India, AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]at 138 : (1977) 4 SCC 608 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]. 50 Supra, this chapter. 51 AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401; JAIN, Cases, Chapter XVII, Sec. B. 52 AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]. 53 Also see, P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402]: 1968 (3) SCR 789. Also see, JAIN, Cases, Chapter XVII, Sec. B. 54 R. Balakrishna Pillai v. State, AIR 1989 Ker 99, 106. 55 AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]. It was an administrative committee to begin with, but when powers were conferred on it under the CI Act., it became a body appointed under this Act. In any case, principles being discussed here are applicable to all inquiry committees whether statutory or non-statutory. 56 On Art. 19(1) (a), see, JAIN, Indian Constitutional Law, 526-539 (1987). 57 Infra, Chapter XVIII. 58 AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]; JAIN, Cases, Chapter XVII, Sec. B. 59 Also see : The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]; Sukhamay Sen Gupta v. State of Tripura, AIR 1979 Gau 63; Mohd. Ibrahim Khan v. Susheel Kumar, AIR 1983 AP 69 [LNIND 1982 AP 187] [LNIND 1982 AP 187] [LNIND 1982 AP 187]; JAIN, Cases, Chapter XVII, Sec B. In none of these cases, the courts, though they reiterated the principle, actually found that the matters to be inquired into were vague or speculative. 60 AIR 1970 Ker 252 [LNIND 1970 KER 13] [LNIND 1970 KER 13] [LNIND 1970 KER 13]. Also see, Balakrishna, Pillai v. State, AIR 1989 Ker 99, where the High Court excluded a term of reference to the inquiry commission as it was vague. 61 AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457].

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62 Sukhamay Sen Gupta v. State of Tripura, AIR 1979 Gau 63. 63 AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279. 64 Ram Krishna Dalmia v. Justice Tendolker, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]at 544 : 1959 SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]. 65 Ram Krishna Dalmia v. Justice Tendolker, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]at 544 : 1959 SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]. 66 P. v. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402]: (1968) 3 SCR 789; Krishna Ballabh Sahay v. Commission of Inquiry, AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]; State of Karnataka v. Union of India, AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312]: (1977) 4 SCC 608; State of Jammu & Kashmir v. Bakshi Ghulam Mohammad, AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401; P.R. Nayak v. Union of India, ILR (1973) 1 Del 747.; M. Kanunanidhi, AIR 1977 Mad 192 [LNIND 1976 MAD 134] [LNIND 1976 MAD 134] [LNIND 1976 MAD 134]; JAIN, Cases, Chapter XVII, Sec. B. 67 Jammu & Kashmir v. Bakshi Gulam Mohammad, AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401. 68 Krishna Ballah Sahay v. Commission of Inquiry, AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]; JAIN, Cases, Chapter XVII, Sec. B. Sukhamay Sen Gupta v. State of Tripura, AIR 1979 Gau 63. 69 Narayandoss v. T. Neeladari Rao, AIR 1959 AP 148 [LNIND 1958 AP 108] [LNIND 1958 AP 108] [LNIND 1958 AP 108], 153. 70 The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]and 129. 71 Sukhamay Sen Gupta v. State of Tripura, AIR 1979 Gau 63. 72 N.B. Rao v. State of Andhra Pradesh, AIR 1989 AP 186 [LNIND 1988 AP 230] [LNIND 1988 AP 230] [LNIND 1988 AP 230]. 73 P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402]: 1968 (3) SCR 789; Md. Ibrahim Khan v. Susheel Kumar, AIR 1983 AP 69 [LNIND 1982 AP 187] [LNIND 1982 AP 187] [LNIND 1982 AP 187]. 74 Shammbhu Nath Jha v. Kedar Prasad, AIR 1972 SC 1515 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]: 1973 Crlj 453 : (1972) 1 SCC 573 [LNIND 1972 SC 53] [LNIND 1972 SC 53] [LNIND 1972 SC 53]; Gokulananda Roy v. Mukherjee. 76 CWN 411 (1972). 75 P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402]: 1968 (3) SCR 789. 76 Manabendra Sarkar v. State of Assam, AIR 1974 Gau 46. 77 Orient Paper Mills v. Union of India, AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457]; JAIN, Cases, Chapter XVII, Sec. B. 78 Orient Paper Mills v. Union of India, AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457]: (1989) 1 SCC 494. 79 AIR 1980 Mad 89 [LNIND 1979 MAD 199] [LNIND 1979 MAD 199] [LNIND 1979 MAD 199]; JAIN, Cases, Chapter XVII, Sec. B. 80 Kiran Bedi & Jinder Singh v. Inquiry Committee, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]: (1989) 1 SCC 495 : 1989 Crlj 903. 81 For Bar Council Under : 'Regulation of Professions' under heading 'some select Adjudicatory Bodies', supra, Chapter XIII. 82 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; Orient Paper Mills v. Union of India, AIR 1979 Cal; P.R. Nayak v. Union of India, ILR (1973) 1 Del 747. 83 Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279.. 84 Also see, P.R. Nayak v. Union of India, ILR (1973) 1 Del 747. 85 R. Balakrishna Pillai v. State, AIR 1989 Ker 99, 111. For a full discussion on Discretionary Powers, see, infra, Chapters

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XVII-XIX. 86 Orient Paper Mills v. Union of India, AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL 457]. Also see, Barium Chemicals, Ltd. v. Company Law Board, AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND 1966 SC 132]: 1966 Supp SCR 311 : (1966) 36 Comp Cas 781. 87 R. Balakrishna Pillai v. State, AIR 1989 Ker 99, 111. 88 For a full discussion on mala fides, see, infra, Chapter XIX, Sec. F(i) 89 See, Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]: 1959 SCR 279; State of Jammu & Kashmir v. Bakshi Gulam Mohammad, AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401; The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]. 90 AIR 1970 Ker 252 [LNIND 1970 KER 13] [LNIND 1970 KER 13] [LNIND 1970 KER 13]. 91 Another ground to quash the notification was that no duly authenticated and signed order appointing the commission was there. Only a draft order was to be found. This raises a problem under Art. 162of the constitution which is discussed later under Sub-Delegation, infra, Chapter XXI, Vol. II. 92 Krishna Ballabh Sahay v. Commission of Inquiry, AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]. 93 N.B. Rao v. State of A.P., AIR 1989 AP 186 [LNIND 1988 AP 230] [LNIND 1988 AP 230] [LNIND 1988 AP 230]; R. Balakrishna Pillai, v. State, AIR 1989 Ker 99. Also see, The Statesman v. Fact Finding Committee, AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]. 94 For a detailed discussion on this ground, see, infra, Chapter XIX, Sec. G(V). 95 R. Balkrishna Pillai v. State, AIR 1989 Ker 99. 1 AIR 1993 SC 1239 : (1993) 1 SCC 51; JAIN, Cases, Chapter XVII, Sec. B. 2 P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402]: 1968 (3) SCR 789; Krishna Ballabh Sahay v. Commission of Inquiry, AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]: 1969 Crlj 520 : 1969 (1) SCR 387 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968 SC 166]; Harekerishna Mahtab v. Chief Minister, Orissa, AIR 1971 Ori 175. 3 On Bias, see, supra, Chapter XI. Also see, N.B. Rao v. State of Andhra Pradesh, AIR 1989 AP 186 [LNIND 1988 AP 230] [LNIND 1988 AP 230] [LNIND 1988 AP 230]. 4 Allen Berry & Co. v. Vivian Bose, AIR 1960 Punj 86; P.R. Nayak v. Union of India, ILR (1973) 1 Del 747. 5 AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND 1974 CAL 92] [LNIND 1974 CAL 92]. 6 (1970) 3 All ER 535. 7 (1983) NZLR 662. Also see, Re Erebus Royal Comm. (1981) 1 NZLR 614. 8 See, supra, Chapter XIV. Also, infra, Vol. II, under Certiorari. 9 Jammu & Kashmir v. Bakshi Gulam Mohammad, AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401. 10 Md. Ibrahim Khan v. Susheel Kumar, AIR 1983 AP 69 [LNIND 1982 AP 187] [LNIND 1982 AP 187] [LNIND 1982 AP 187]; also see, State of Jammu & Kashmir v. Bakshi Gulam Mohammad, AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139]: 1966 Supp SCR 401. 11 For example, the Thakkar Commission sat in camera, supra, this chapter. 12 Infra, Vol. II, see under Judicial Control : Certiorari. Also see, supra, this chapter. 13 See, Erebus Commission, (1981) 1 NZLR 614. 14 Supra, this chapter. 15 Consumer Education and Research Centre v. State of Gujarat, XXII Guj LR 712 (1981). 16 State of Gujarat v. Consumer Ed. & Research Centre, AIR 1984 SC 652 : (1984) 1 SCC 684; JAIN, Cases, Chapter XVII, Sec. B.

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17 Law Commission of India, Report on the Commissions of Inquiry Act, 1952, 4 (24th Report, 1962); supra, this chapter. 18 The Royal Commission on Tribunals of Enquiry in its report (1966 at 17) explained the features of the inquisitorial procedure as follows : "There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. It is inherent in the inquisitorial procedure that there is no lis. The tribunal directs the inquiry and the witnesses are necessarily the Tribunal's witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to be tried, no charges, indictments or depositions. The inquiry may take a fresh turn at any moment. It is therefore difficult for persons involved to know in advance of the hearing what allegations may be made against them." 19 In this respect, the following observation of a distinguished American Legal scholar with regard to the congressional investigations in America are worth noting. "The investigated suspect is worse off in some ways than the accused man at a criminal trial, who only has to clear himself of one sharply defined offence. The suspect must be prepared to defend almost everything he ever did or thought." See, CHAFEE, The Blessings of Liberty, 225 (1956). 20 Administrative Law, 277 (1985). In spite of its inequity, it may be necessary to follow such a procedure by a commission of inquiry. The Royal Commission on Tribunals in its report (1966, Cmnd. 3121) explained the reasons for following this procedure as follows : "Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out; or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial Tribunal possessing the powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored." (Para 28 of the Report). 21 See below under Relevant Constitutional Provisions. 22 CYRIL SALMON, Tribunals of Inquiry (1967). 23 Report, 29 (1966); see, supra. 24 As regards contempt of adjudicatory bodies, see, supra, Chapter XIV, 629-632. 25 M.V. Rajwade v. S.M. Hasan (Dr.), AIR 1954 Nag 71; JAIN, Cases, Chapter XVII, Sec. B. 26 Allen Berry & Co. v. Vivian Bose, AIR 1960 Punj 86; Jammu & Kashmir v. Anwar Ahmed, AIR 1965 J&K. 75. 27 AIR 1956 SC 66 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98]: 1956 Crlj 156 : 1955 (2) SCR 955 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98]; JAIN, Cases, Chapter XVII, Sec. B. 28 JAIN, Indian Constitutional Law, 526-539 (1987). 29 Law Comm., Report on the Commissions of Inquiry Act, 1952, (XXIV Report of 1962). For text of this Report, see, JAIN, Cases, Chapter XVII, Sec. B. 30 Supra, notes 97-99. 31 ILR (1981) 1 Del 715. 32 ILR (1980) 1 Del 552. 33 See, Kiran Bedi Jinder Singh v. Committee of Inquiry, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]: 1989 Crlj 903 : (1989) 1 SCC 495, JAIN, Cases, Chapter XVII, Sec. B. 34 AIR 1988 SC 2267 [LNIND 1988 SC 442] [LNIND 1988 SC 442] [LNIND 1988 SC 442]: (1988) 4 SCC 419 : 1989 Crlj 306; JAIN, Cases, Chapter XVII, Sec. B. 35 AIR 1988 SC 2267 [LNIND 1988 SC 442] [LNIND 1988 SC 442] [LNIND 1988 SC 442]at 2284 : (1988) 4 SCC 419 [LNIND 1988 SC 442] [LNIND 1988 SC 442] [LNIND 1988 SC 442] : 1988 (1) Crimes 655. 36 On S. 195, CrPC. 37 AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]: 1954 Crlj 865 : 1954 SCR 1077 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]. 38 Infra. 39 Infra.

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40 Infra. 41 Supra. 42 For the text of these various statutory provisions. see, JAIN, Cases, Chapter XVIII, Sec. A(i). 43 For various statutory provisions authorising search and seizure, see, JAIN, Cases, Vol. II, Chapter XVIII. 44 See, on this point, M.P. JAIN, Power of Search and Seizure, 11 JILI 535 (1969); S.N. JAIN, Search and Seizure under the Income Tax Law, 39 Taxation 64 (1975) and 40 Taxation 1 (1975). 45 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: 1968 (1) SCR 148 : 66 ITR 664; JAIN, Cases, Chapter XVIII, Sec. A(iv). On Inspection, see, infra. 46 See, infra under "Relevant Constitutional Provisions." Also see, infra, Chapter XVIII; JAIN, Cases, Chapter XV. 47 See, JAIN, Cases, Chapter XVIII, Sec. A(i) and Sec. A (vii). 48 See, JAIN, Cases, Chapter XVIII, Sec. A (i). 49 See, JAIN, Cases, Chapter XVIII. Secs. A (i) and (viii) 50 Gopikishan v. Asst. Collector, Customs, Raipur, AIR 1967 SC 1298 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]: 1967 Crlj 1194 : 1967 (2) SCR 340 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]; JAIN, Cases, Chapter XVIII, Sec. A(vi). 51 Durga Pd. v. Supdt., Central Excise, AIR 1966 SC 1209 [LNIND 1965 SC 361] [LNIND 1965 SC 361] [LNIND 1965 SC 361]: 1966 (2) SCR 991 at 1216; JAIN, Cases, Chapter XVIII, Secs. A(i) & (vi). 52 Durga Pd. v. Suptd., Central Excise, AIR 1966 SC 1209 [LNIND 1965 SC 361] [LNIND 1965 SC 361] [LNIND 1965 SC 361]at 1216 : 1966 (2) SCR 991; also, Gopikisan v. Asstt. Collector, Customs, Raipur, AIR 1967 SC 1298 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]: 1967 Crlj 1194 : 1967 (2) SCR 340 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]; Also see, infra, note 213, On S. 105. 53 West Bengal v. Brijmohan Gupta, AIR 1983 Cal 353 [LNIND 1983 CAL 37] [LNIND 1983 CAL 37] [LNIND 1983 CAL 37]. 54 AIR 1985 SC 989 [LNIND 1985 SC 153] [LNIND 1985 SC 153] [LNIND 1985 SC 153]: (1985) 3 SCC 72 : (1985) 155 ITR 166 [LNIND 1985 SC 153] [LNIND 1985 SC 153] [LNIND 1985 SC 153]; JAIN, Cases, Chapter XVIII, Sec. A (vii). Also see, infra, Chapter XIX, under Discretionary Powers. 55 See, infra, Chapter XIX, under Discretionary Powers. 56 S. Narayanappa v. C.I.T., AIR 1967 SC 523 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427]: (1967) 63 ITR 219 : 1967 (1) SCR 590 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427]. 57 Calcutta Discount Co. Ltd. v. I.T.O., Companies District I, Calcutta, AIR 1961 SC 372 [LNIND 1960 SC 255] [LNIND 1960 SC 255] [LNIND 1960 SC 255]: (1961) 41 ITR 191 : 1961 (2) SCR 241 [LNIND 1960 SC 255] [LNIND 1960 SC 255] [LNIND 1960 SC 255]. Also, infra, Vol. II, under Judicial Review. 58 Narayan v. III. T.O., AIR 1989 SC 1065 [LNIND 1989 SC 40] [LNIND 1989 SC 40] [LNIND 1989 SC 40], 1068; JAIN, Cases, Chapter XVIII, Sec. A(viii). 59 AIR 1979 AP 28 [LNIND 1978 AP 147] [LNIND 1978 AP 147] [LNIND 1978 AP 147]. 60 See, Hindustan Aluminium v. Controller Aluminium, AIR 1976 Del 225 [LNIND 1975 DEL 196] [LNIND 1975 DEL 196] [LNIND 1975 DEL 196]; Collector, Central Excise v. L.K.N. Jewellers. AIR 1972 All 231. 61 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: 1968 (1) SCR 148. 62 Sheonanath Prasad v. State of Bihar, AIR 1968 SC 1571 : 1969 Crlj 87 : 1969 (1) SCR 150 [LNIND 1968 SC 137] [LNIND 1968 SC 137] [LNIND 1968 SC 137]. 63 Infra, Chapter XVIII; JAIN, Cases, Chapter XV. 64 AIR 1968 SC 1517 [LNIND 1968 SC 137] [LNIND 1968 SC 137] [LNIND 1968 SC 137]: 1969 Crlj 87 : (1969) (1) SCR 150 [LNIND 1968 SC 137] [LNIND 1968 SC 137] [LNIND 1968 SC 137]. 65 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148. 66 AIR 1960 SC 210 [LNIND 1959 SC 183] [LNIND 1959 SC 183] [LNIND 1959 SC 183]: 1960 Crlj 286 : 1960 (1) SCR 991

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[LNIND 1959 SC 183] [LNIND 1959 SC 183] [LNIND 1959 SC 183]. 67 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148 : 66 ITR 664. 68 AIR 1967 SC 1298 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]: 1967 Crlj 1194 : 1967 (2) SCR 340 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]. 69 AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCC 324 : (1969) 74 ITR 836 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]; see, JAIN, Cases, Chapter XVIII, Sec. A. 70 In L.R. Gupta v. Union of India, 46 (1992) Delhi Law times 14, the Delhi High Court quashed a search warrant issued under S. 132, IT. Act. Commenting On S. 132, the Court has observed that the "information" on the basis of which the authorizing officer comes to believe that search is called for must be something more than a mere "rumour, gossip or hunch." 71 Partap Singh v. Director of Enforcement, AIR 1985 SC 989 [LNIND 1985 SC 153] [LNIND 1985 SC 153] [LNIND 1985 SC 153]: (1985) 3 SCC 72 : (1985) 58 Comp Cas 477. 72 See, S.N. JAIN, Search and Seizure under the Income Tax Law, supra, this chapter. 73 Surajmull Nagarmull v. C.I.T., AIR 1961 Cal 578 [LNIND 1961 CAL 67] [LNIND 1961 CAL 67] [LNIND 1961 CAL 67]. 74 Also, Mamchand & Co. v. C.I.T, (1970) 76 ITR 217 (Cal); Gopikrisan v. Assistant Collector of Customs, AIR 1967 SC 1298 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]: 1967 Crlj 1194 : 1967 (2) SCR 340 [LNIND 1967 SC 3] [LNIND 1967 SC 3] [LNIND 1967 SC 3]. 75 C. Venkata Reddy v. I.T.O., (1976) 66 ITR 212, 234 (Mys); Mamchand & Co. v. C.I.T., (1970) 76 ITR 217 (Cal); Balwant Singh v. R.D. Shah, (1969) 71 ITR 550 (Del). For discussion on Writ Petitions under Art. 226, see, infra, Vol. II, under Judicial Control. 76 Pratap Singh v. Director of Enforcement, AIR 1985 SC 989 [LNIND 1985 SC 153] [LNIND 1985 SC 153] [LNIND 1985 SC 153]: (1985) 3 SCC 72. 77 Income Tax Officer v. Seth Bros, AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCC 324 : (1969) 74 ITR 836 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]. 78 For other cases on this specific aspect see, State of Rajasthan v. Rehman AIR 1960 SC 210 [LNIND 1959 SC 183] [LNIND 1959 SC 183] [LNIND 1959 SC 183]: 1960 Crlj 286 : (1960) 1 SCR 991 [LNIND 1959 SC 183] [LNIND 1959 SC 183] [LNIND 1959 SC 183]; Durga Prasad v. Superintendent (Prevention), Central Excise, Nagpur, AIR 1966 SC 1212 : 1966 (2) SCR 991; Balwant Singh v. R.D. Shah, (1969) 71 ITR 550 (Del); Mamchand & Co. v. C.I.T., (1970) 76 ITR 217 (Cal). 79 See, infra, Chapter XIX. Also, S.N. JAIN, Search and Seizure under the Income Tax Law, supra, this chapter. 80 See, infra, Chapter XIX. 81 Income Tax Officer v. Seth Bros, AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCC 324. 82 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148 : 66 ITR 664. 83 (1975) 101 ITR 112 [LNIND 1975 PNH 52] [LNIND 1975 PNH 52] [LNIND 1975 PNH 52]. 84 Also see, Jagmohan Mahajan v. C.I.T., (1976) 103 ITR 579. 85 AIR 1961 Cal 578 [LNIND 1961 CAL 67] [LNIND 1961 CAL 67] [LNIND 1961 CAL 67]. 86 Income Tax Officer v. Seth Bros., AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCC 324. 87 (1974) 93 ITR 505 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400] : AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 1 SCC 345; JAIN, Cases, Chapter XVIII, Sec. A. 88 See, infra, Chapters XVII-XIX. 89 Income Tax Officer v. Seth Bros., AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCC 324; Commr. of Income-tax v. Jawaharlal Rastogi, AIR 1970 SC 1651 [LNIND 1970 SC 270] [LNIND 1970 SC 270] [LNIND 1970 SC 270]: (1970) 2 SCC 225; Pooranmal v. Director of Ispection, AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 1 SCC 345 : (1974) 93 ITR 505 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]. 90 (1964) 52 ITR 637 (Gau).

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91 Durga Prasad v. Superintendent (Prevention), Central Excise, Nagpur, AIR 1966 SC 1209 [LNIND 1965 SC 361] [LNIND 1965 SC 361] [LNIND 1965 SC 361], 1212 : (1966) 2 SCR 991. Also, Wazir Chand v. State of Himachal Pradesh, AIR 1954 SC 415 [LNIND 1954 SC 75] [LNIND 1954 SC 75] [LNIND 1954 SC 75]: 1954 Crlj 1029 : 1955 (1) SCR 408 [LNIND 1954 SC 75] [LNIND 1954 SC 75] [LNIND 1954 SC 75]; JAIN, Cases, Chapter XVIII, Sec. B. 92 AIR 1976 Del 225 [LNIND 1975 DEL 196] [LNIND 1975 DEL 196] [LNIND 1975 DEL 196]; JAIN, Cases, Chapter XVIII, Sec B. 93 On 'application of mind', see, infra, Chapter XIX. 94 AIR 1972 SC 591 [LNIND 1971 SC 624] [LNIND 1971 SC 624] [LNIND 1971 SC 624]: (1972) 1 SCC 240 : (1972) 42 Comp Cas 245; JAIN Cases, Chapter XVIII, Sec. A(vii). 95 AIR 1972 SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135]: (1971) 1 SCC 697; JAIN Cases, Chapter XVIII, Sec. B(vii) 96 For this provision see, infra, under Confiscation. 97 AIR 1988 SC 1474 [LNIND 1988 SC 265] [LNIND 1988 SC 265] [LNIND 1988 SC 265]: (1988) 3 SCC 257 : (1988) 35 ELT 612. 1 Asstt. Collector v. Charan Das Malhotra, AIR 1972 SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135]: (1971) 1 SCC 697. 2 Chuharmal v. Union of India, AIR 1988 SC 1474 [LNIND 1988 SC 265] [LNIND 1988 SC 265] [LNIND 1988 SC 265]at 1477 : (1988) 3 SCC 257 [LNIND 1988 SC 265] [LNIND 1988 SC 265] [LNIND 1988 SC 265]. Also see, I.J. Rao, A.C.C. v. Bibhuti Bhushan Bagh, (1989) 3 SCC 202 [LNIND 1989 SC 320] [LNIND 1989 SC 320] [LNIND 1989 SC 320]: AIR 1989 1884 : (1989) 42 ELT 338. 3 J.K. Bardolia Mills v. M.L. Khunger, Dy. Collector, (1994) 5 SCC 332 [LNIND 1994 SC 1569] [LNIND 1994 SC 1569] [LNIND 1994 SC 1569] : JT 1994 (4) SC 515 [LNIND 1994 SC 1569] [LNIND 1994 SC 1569] [LNIND 1994 SC 1569]. 4 AIR 1970 SC 1651 [LNIND 1970 SC 270] [LNIND 1970 SC 270] [LNIND 1970 SC 270]: (1970) 2 SCC 225; JAIN, Cases, Chapter XVIII. Sec. A. 5 On search under the Income Tax Act, see supra, this chapter. 6 AIR 1970 SC 292 [LNIND 1969 SC 212] [LNIND 1969 SC 212] [LNIND 1969 SC 212]: (1969) 2 SCR 32. 7 Also see, Pooran Mal v. Director of Inspection, AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 93 ITR 505 : (1974) 1 SCC 345 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]. 8 AIR 1984 SC 230 [LNIND 1983 SC 427] [LNIND 1983 SC 427] [LNIND 1983 SC 427]: (1984) 1 SCC 700 : (1984) 145 ITR 477. 9 (1999) 8 SCC 508 [LNIND 1999 SC 1276] [LNIND 1999 SC 1276] [LNIND 1999 SC 1276], 510 (para 7) : AIR 2000 SC 403 [LNIND 1999 SC 1276] [LNIND 1999 SC 1276] [LNIND 1999 SC 1276]. 10 AIR 1972 All 231. 11 AIR 1982 Pat 152; JAIN, Cases, Chapter XVIII, Sec. B. 12 Also see, Bishamber Dayal Chandra Mohan v. State of Uttar Pradesh, AIR 1982 SC 33 : (1982) 1 SCC 39, for seizure of an essential commodity under S. Section 3 of the Essential Commodities Act, 1955. 13 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148. 14 Also see, Kusum Lata v. C.I.T., State of Rajasthan, AIR 1991 SC 236 [LNIND 1990 SC 347] [LNIND 1990 SC 347] [LNIND 1990 SC 347]: (1990) 4 SCC 98 : (1990) 185 ITR 56. 15 Harikrisandas Gulabdas & Sons v. State of Mysore, (1971) 27 STC 434 [LNIND 1971 KANT 64] [LNIND 1971 KANT 64] [LNIND 1971 KANT 64]. 16 Agarwal Engineering Stores v. State of Uttar Pradesh, (1972) 28 STC 446. 17 S. Natrajan v. Commercial Tax Officer, (1971) 28 STC 319. 18 Balwant Singh v. R.D. Shah, (1969) 71 ITR 550. 19 AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 1 SCC 345.

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20 Varghese v. Commr. of Agricultural Income Tax, (1976) 105 ITR 732 [LNIND 1976 KER 85] [LNIND 1976 KER 85] [LNIND 1976 KER 85]; State of West Bengal v. Brijmohan Gupta, AIR 1983 Cal 353 [LNIND 1983 CAL 37] [LNIND 1983 CAL 37] [LNIND 1983 CAL 37]. Also see, S.N. JAIN, Search and Seizure under the Income Tax Law, supra, this chapter; S.N. JAIN, Admissibility of Illegally Obtained Evidence, 22 JILI 322 (1980). 21 Bai Radha v. State of Gujarat, AIR 1970 SC 1396 [LNIND 1968 SC 348] [LNIND 1968 SC 348] [LNIND 1968 SC 348]: (1969) 1 SCC 43 : 1970 Crlj 1279; State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 [LNIND 1979 SC 482] [LNIND 1979 SC 482] [LNIND 1979 SC 482]: (1980) 4 SCC 669 : 1980 Crlj 429; Radhakishan v. State of Uttar Pradesh, AIR 1963 SC 822 [LNIND 1962 SC 315] [LNIND 1962 SC 315] [LNIND 1962 SC 315]: 1963 (1) Crlj 809 : 1963 (2) LLJ 667 [LNIND 1962 SC 315] [LNIND 1962 SC 315] [LNIND 1962 SC 315]; Shyam Lal v. State of Madhya Pradesh, AIR 1972 SC 886 [LNIND 1972 SC 100] [LNIND 1972 SC 100] [LNIND 1972 SC 100]: 1972 Crlj 638 : (1972) 1 SCC 764 [LNIND 1972 SC 100] [LNIND 1972 SC 100] [LNIND 1972 SC 100]. 22 Pratap Singh v. Director of Enforcement, AIR 1985 SC 989 [LNIND 1985 SC 153] [LNIND 1985 SC 153] [LNIND 1985 SC 153]: (1985) 3 SCC 72. 23 (1988) SCC 229, 246; JAIN, Cases, Chapter XVII, Sec. A (vii). 24 Supra, 722. 25 Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC 411 : 1956 Crlj 801. 26 Kuruma v. Reg., (1955) 1 All ER 236. Also see, Magraj Patodia v. R.K. Birla, AIR 1971 SC 1295 [LNIND 1970 SC 359] [LNIND 1970 SC 359] [LNIND 1970 SC 359]: (1970) 2 SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157 [LNIND 1972 SC 457] [LNIND 1972 SC 457] [LNIND 1972 SC 457]: 1973 Crlj 228 : (1973) 1 SCC 471 [LNIND 1972 SC 457] [LNIND 1972 SC 457] [LNIND 1972 SC 457]. 27 (1979) 2 All ER 1222. 28 U.S. v. Janis, 428 US 433 (1976). 29 468 US 1032. 30 The Exclusionary Rule in Administrative Proceedings, 54 Geo Wash LR 564, 585-86 (1986). 31 37 Admin LR 1 (1985). Also SCHWARTZ, Adm. Law--A Casebook, 563 (1988). 32 V. Venkata Subbiah v. Regional Transport Officer, AIR 1984 AP 377 [LNIND 1984 AP 121] [LNIND 1984 AP 121] [LNIND 1984 AP 121]. 33 AIR 1970 SC 1396 [LNIND 1968 SC 348] [LNIND 1968 SC 348] [LNIND 1968 SC 348]: (1969) 1 SCC 43 : 1970 Crlj 1279; JAIN, Cases, Chapter XVIII, Sec. B. 34 See, for example, S. Section 6B of the Essential Commodities Act, 1955; The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. An order of confiscation of immovable property passed under the Smuggler's Act was held valid In Rama Devi v. Competent Authority, (1955) 212 ITR 71. 35 M. Salim, Sabeeda Industries v. District Judge, AIR 1994 Ker 11. 36 In Divisional Forest Officer v. G.V. Sudhakar Rao, AIR 1986 SC 328 [LNIND 1985 SC 336] [LNIND 1985 SC 336] [LNIND 1985 SC 336]: (1985) 4 SCC 573 : 1986 Crlj 357, the Supreme Court upheld an order of confiscation of forest produce passed under S. 44(2A)of the A.P. Forest Act, 1967. On confiscation also see, Kishore Chandra Patel v. State, AIR 1993 Ori 259 [LNIND 1993 ORI 130] [LNIND 1993 ORI 130] [LNIND 1993 ORI 130]; JAIN, Cases, Chapter XV, Sec. B(ii) 37 Maneka Gandhi v. U.O.I., AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 38 A provision authorising search in a public temple without any restriction may also be bad as infringing religious freedom guaranteed in Arts. 25 and 26. Power of search can only be exercised keeping in view the religious practices and usages of the religious place: Ratilal v. State of Bombay, AIR 1954 SC 388 [LNIND 1954 SC 48] [LNIND 1954 SC 48] [LNIND 1954 SC 48]: 1954 SCR 1055; Commissioner, H.R.E. v. Lakshmindra Swamiar, AIR 1955 SC 282 [LNIND 1955 SC 9] [LNIND 1955 SC 9] [LNIND 1955 SC 9]: 1955 (1) SCR 1259. 39 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]: 1954 Crlj 865 : 1954 SCR 1077 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]; JAIN, Cases, Chapter XVIII, Sec. A(ii). 40 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: 1968 (1) SCR 148 : 66 ITR 664. 41 AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]at 66 : 1968 (1) SCR 148 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]. In Abdul Wahab and Co. v. Assistant Commissioner, AIR 1968 Mys 100,

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the Mysore High Court held a similar provision contained in the Mysore Sales Tax Act, 1957, as in the Madras General Sales Tax Act, invalid under the Constitution owing to its conferring unguided and uncontrolled powers on the administrative authorities. The case appears to stand overruled by Jhaver. On the question of constitutionality of uncontrolled power see, infra, Chapter XVIII. 42 (1974) 93 ITR 505 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400] : AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 1 SCC 345. 43 State of West Bengal v. Brijmohan Gupta, AIR 1983 Cal 353 [LNIND 1983 CAL 37] [LNIND 1983 CAL 37] [LNIND 1983 CAL 37]. 44 Surajmull Nagarmull v. Commissioner, AIR 1961 Cal 578 [LNIND 1961 CAL 67] [LNIND 1961 CAL 67] [LNIND 1961 CAL 67]; contra, Senairam Doogarmal Agency (P.) Ltd. v. K.E. Johnson, (1964) 52 ITR 637 (Gau). 45 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148. 46 Sheonath Prasad v. State of Bihar, AIR 1968 SC 1517 [LNIND 1968 SC 137] [LNIND 1968 SC 137] [LNIND 1968 SC 137]: 1969 Crlj 87 : 1969 (1) SCR 150 [LNIND 1968 SC 137] [LNIND 1968 SC 137] [LNIND 1968 SC 137]. 47 Fourth Rep. (II LS) 7, 30 (1958); Fifth Rep. (II LS) 20 (1959). Some of the orders involved were the Inter-Zonal Wheat Movement Control Order, 1957, the Rice (Obstructions on Rail-bookings) Order, 1958; These orders were promulgated under the Essential Commodities Act, 1955. 48 Reg. v. I.R.C., ex P. Rossminster, [1980] 2 WLR 19. 49 See also S. 8 of the Weekly Holidays Act, 1942. 50 Supra, this chapter AIR 1965 Bom 1 [LNIND 1964 BOM 3] [LNIND 1964 BOM 3] [LNIND 1964 BOM 3]. 51 AIR 1961 SC 29 [LNIND 1960 SC 186] [LNIND 1960 SC 186] [LNIND 1960 SC 186]: 1961 (1) SCR 417 : (1960) 30 Comp Cas 644; JAIN. Cases. Chapter XVII. Sec. A(i). 52 AIR 1964 SC 1552 [LNIND 1964 SC 74] [LNIND 1964 SC 74] [LNIND 1964 SC 74]: 1964 (7) SCR 137. Also, Popular Bank v. Naik, AIR 1965 SC 654. 53 AIR 1970 SC 940 [LNIND 1968 SC 317] [LNIND 1968 SC 317] [LNIND 1968 SC 317]: 1970 Crlj 863 : 1969 (2) SCR 461 [LNIND 1968 SC 317] [LNIND 1968 SC 317] [LNIND 1968 SC 317]; JAIN, Cases, Chapter XVII, Sec. A(iii); In Hari H. Advani v. State of Maharashtra, AIR 1971 SC 44 [LNIND 1969 SC 266] [LNIND 1969 SC 266] [LNIND 1969 SC 266]: (1970) 1 SCC 509; JAIN, Cases, Chapter XVII, Section A(iii). AIR 1971 SC 44 [LNIND 1969 SC 266] [LNIND 1969 SC 266] [LNIND 1969 SC 266]: (1970) 1 SCC 509; the Supreme Court has ruled that an inquiry under S. Section 171A, Customs Act, could not be treated as a judicial proceeding beyond what was provided for in Sub-sec. (4) of S. 171A. Accordingly, a confessional statement made to a customs officer during an inquiry under S. 171Ais not inadmissible at the trial because of S. 132, Evidence Act. 54 Also, Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167 [LNIND 1976 SC 105] [LNIND 1976 SC 105] [LNIND 1976 SC 105]: (1976) 2 SCC 302 : 1976 Crlj 860; JAIN, Cases, Chapter XVII, Sec. A(iii). 55 It says that no one shall be "compelled in any criminal case to be a witness against himself." Though the language used here is a "criminal case", yet the privilege has been held to apply to civil proceedings as well if there is a possiblity of the evidence being used against him in a future criminal proceeding; Mccarthy v. Arndstein, 226 US 34 (1924); Quinn v. United States, 349 US 155 (1955); Counselman v. Hitchcock, 142 US 247 (1892). 56 Counselman v. Hitchcock, 142 US 247 (1892) at 564. For a criticism of the proposition, see, MAYER, Shall We Amend the Fifth Amendment? (1959). 57 However, In Sohanlal Pahladrai v. State, AIR 1965 Bom 1 [LNIND 1964 BOM 3] [LNIND 1964 BOM 3] [LNIND 1964 BOM 3], the Court held that S. 6 of the Commissions of Inquiry Act did not prohibit the use of statements made before the commission to contradict his statements made as a witness in a criminal case against another person. But this judgment has now been overruled by the Supreme Court: see, Kiran Bedi v. Delhi Administration, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]: (1989) 1 SCC 495 : 1989 Crlj 903; JAIN, Cases, Chapter XVII, Sec. B. 58 The privilege is designed to guard against such dangers. See, The Indian Law Institute Study, Self-incrimination : Physical and Medical Examination of the Accused 4-6 (1962). 59 AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]: 1954 Crlj 865 : 1954 SCR 1077 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]. 60 AIR 1961 SC 1808 [LNIND 1961 SC 259] [LNIND 1961 SC 259] [LNIND 1961 SC 259]: 1961 (1) Crlj 856 : 1962 (3) SCR 10 [LNIND 1961 SC 259] [LNIND 1961 SC 259] [LNIND 1961 SC 259]. 61 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 [LNIND 1961 SC 259] [LNIND 1961 SC 259] [LNIND 1961 SC 259]at 1814 : 1961 (1) Crlj 856 : 1961 (3) SCR 10 at 1814. For a comment on the case, see, S.N. JAIN, Physical and Medical

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Examination of the Accused and the Privilege against Self-incrimination, 4 JILI 552 (1962). 62 AIR 1965 SC 1251 [LNIND 1964 SC 352] [LNIND 1964 SC 352] [LNIND 1964 SC 352]: 1965 (2) Crlj 256. See, V.S. Kuttan Pillai v. Ramakrishan, AIR 1980 SC 185 [LNIND 1979 SC 377] [LNIND 1979 SC 377] [LNIND 1979 SC 377]: 1980 Crlj 196 : (1980) 1 SCC 264 [LNIND 1979 SC 377] [LNIND 1979 SC 377] [LNIND 1979 SC 377]. 63 Shapiro v. U.S., 353 US 1. (1948). See MELTZER, The Privilege Against Self-incrimination and Required Income Tax Records, 30 Taxes 45 (1952). 64 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]: 1954 Crlj 865 : 1954 SCR 1077 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]. 65 V.S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185 [LNIND 1979 SC 377] [LNIND 1979 SC 377] [LNIND 1979 SC 377]: 1980 Crlj 196 : (1980) 1 SCC 264 [LNIND 1979 SC 377] [LNIND 1979 SC 377] [LNIND 1979 SC 377]. 66 Gould v. U.S., 255 US 298 (1921). 67 Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940 [LNIND 1968 SC 317] [LNIND 1968 SC 317] [LNIND 1968 SC 317]: 1970 Crlj 863 : 1969 (2) SCR 461 [LNIND 1968 SC 317] [LNIND 1968 SC 317] [LNIND 1968 SC 317] : Illias v. Collector of Customs, AIR 1970 SC 1065 [LNIND 1968 SC 329] [LNIND 1968 SC 329] [LNIND 1968 SC 329]: 1970 Crlj 998 : 1969 (2) SCR 613 [LNIND 1968 SC 329] [LNIND 1968 SC 329] [LNIND 1968 SC 329]; for these cases, see, JAIN, Cases, Chapter XVII, Sec. A; Badaku Joti v. State of Mysore, AIR 1966 SC 1746 [LNIND 1966 SC 68] [LNIND 1966 SC 68] [LNIND 1966 SC 68]: 1966 Crlj 1353 : 1966 (3) SCR 698 [LNIND 1966 SC 68] [LNIND 1966 SC 68] [LNIND 1966 SC 68]. 68 AIR 1992 SC 1795 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405]: (1992) 3 SCC 259 : 1992 Crlj 2761 : 1992 (2) Crimes 648 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405]; JAIN, Cases, Chapter XVII, Sec. A(vii). 69 Board of Revenue, Madras v. R.S. Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1968) 1 SCR 148. 70 (1970) 26 STC 1 : (1969) 2 SCC 697 [LNIND 1969 SC 306] [LNIND 1969 SC 306] [LNIND 1969 SC 306]. 71 See, Indian Law Institute, Administrative Process under the Essential Commodities Act, 1955, 123 (1964). For extracts see, JAIN, Cases. Chapter I. 72 Also See, S s. 206, 285 and 286 of the Income Tax Act, 1961. 73 For text of the provision, see, JAIN, Cases, Chapter XVII, Sec. A. 74 See, JAIN, Chapter XVII, Sec. A. 75 See, for example, S. 4 of the Commissions of Inquiry Act, supra; S. 131(1)of the Income Tax Act, 1961; S. Section 18 of the Industries Development and Regulation Act, 1951; S. 40of the Imports and Exports Act, 1947. 76 For an analyis of the problem, see JAFFE and NATHANSON, Administrative Law : Cases and Materials, 419-20 (1976). 77 Power to punish for non-compliance of their orders to appear or produce documents is not given to administrative authorities under all statutes. For instance, no such power is given to inspectors under the Weekly Holidays Act, 1942 though they have been given the power "to take on the spot or otherwise such evidence of any person as he may deem necessary for carrying out the purposes of this Act" and the persons are "bound to produce" the relevant documents when so required by the inspectors. 78 S. 131(2)of the Income Tax Act empowers the ITO to impose a fine up to Rs. 500 if the person summoned intentionally omits to attend or produce documents on books of account. 79 Supra; see, Indira Gandhi v. J.C. Shah Commission of Inquiry, ILR (1980) 1 Del 552; Kiran Bedi Jinder Singh v. Commission of Inquiry, AIR 1989 SC 714 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]: (1989) 1 SCC 494 : 1989 Crlj 903. 80 AIR 1965 J&K 75; supra, 717; JAIN, Cases, Chapter XVII, Sec. B. 81 For discussion on the, government privilege under S. 123, Evidence Act, see, infra, Vol. II, under Open Government. 82 The language of S. 4of the Act is the same as that of S. 4of the Central Commissions of Inquiry Act see, supra, this chapter AIR 1965 J&K 75. 83 See, this chapter. 84 Cf. Union of India v. Sheo Shankar, (1974) 95 ITR 523. 85 AIR 1959 AP 148 [LNIND 1958 AP 108] [LNIND 1958 AP 108] [LNIND 1958 AP 108].

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86 AIR 1972 SC 591 [LNIND 1971 SC 624] [LNIND 1971 SC 624] [LNIND 1971 SC 624]: (1972) 1 SCC 240 : (1972) 42 Comp Cas 245; JAIN, Cases, Chapter XVII, Sec. A(vii). 87 The safeguard flows from the Fourth Amendment of the American Constitution: see, Endicott Johnson Corp. v. Perkins, 317 US 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 US 186 (1946); United States v. Morton Salt Co., 338 US 632 (1950). 88 S. 19(2)of FERA, 1947; S. 33(2)of FERA, 1973. 89 Dhanpat Oil & General Mills v. Union of India, AIR 1985 SC 1255 [LNIND 1985 SC 212] [LNIND 1985 SC 212] [LNIND 1985 SC 212]: (1985) 3 SCC 599.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XVII DISCRETIONARY POWERS (I)

CHAPTER XVII DISCRETIONARY POWERS (I) 1. DISCRETION In Rooke's case1 COKE J. said, "notwithstanding the words of the commission give authority to the commissioners to do according to their discretions, yet their proceedings ought to be limited and bound into the rule of reason and law. For discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substances, between equity and colourable glosses and pretences, and not to do according to their wills and private affections. The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound,fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. Corpus Juris secundum, vol. 27, page 289 as referred in Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri ,2. "A discretion", said Lord WRENBURY, "does not empower a man to do what he likes merely because he is minded to do so, he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason dictates."3 This approach to construction has two consequences : the statutory discretion must be truly exercised, and when exercised it must be exercised reasonably. (MAXWELL). "Discretion", said Lord MANSFIELD in R. v. Wilkes ,4'when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague, and fanciful, but legal and regular' (see CRAIES on Statute Law, 6th Edn., p. 273, as referred to in Ramji Dayawala & Sons (P) Ltd. v. Invest Import 5and Siben Kumar Mondal v. Hindusthan Petroleum Corporation Ltd. 6 Discretion, Lord MANSFIELD stated in classic terms in, John Wilke's case,7 must be a sound one governed by law and guided by rule, not by humour; Lord DENNING put it eloquently in Breen v. Amalgamated Engineering Union ,8 that in a Government of Laws' "there is nothing like unfettered discretion immune from judicial reviewability." Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretences and not to do according to one's will and private affections. Lord BRIGHTMAN elegantly observed in the case of, Chief Constable of North Sales Police v. Evans ,9 that judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made," as cited in Dilip Kumar Patnaik v. State of Orissa .10 The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure.

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He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primodial necessity of order in the social life'. Wide enough in all conscience is the field of discretion that remains." BENJAMIN CARDOZE in ' The Nature of Judicial Process', as cited in Valsamma Thomas v. Addl. District Magistrate Alappuzha .11 DISCRETION is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to men's wills, and private affections. Lord COKE, Rooke's Case, (1598) 5 Rep 99b.12 Discretion is to know through law what is just.13 The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility.14 "Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and the truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself." Sharpe v. Wakefield ,15 Per Lord HALSBURY, L.C., as referred in National Insurance Co. Ltd. v. Keshav Bahadur ,16 and UOI v. Kuldeep Singh .17 The hallmark of discretionary power is permissive language using words such as 'may' or 'it shall be lawful', as opposed to obligatory language such as 'shall'. But this simple distinction is not always a sure guide, for there have been many decisions in which permissive language has been construed as obligatory.18 The word 'may' in Rule 4(2) of the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 imposes an obligation upon the Governor to refer the case to tribunal if request is made. The word 'may' in this case did not confer discretion only.19 Rule 44 of the Fundamental Rules confers no right on the Government servants to the grant of dearness allowance, it imposes no duty on the State to grant it. It merely confers a power on the State to grant compassionate allowance at its own discretion.20 2. NATURE OF DISCRETIONARY POWERS A significant phenomenon discernible in the present-day administrative process in modern democracies is the conferral of large discretionary powers on the Administration to make decisions from case to case. Acquisition of more and more discretionary powers by the Administration is a demonstrable modern trend today.Every statute which is enacted by the Legislature confers some element of discretion on the Administration. Discretionary powers are also conferred through Delegated Legislation. The main reason for vesting large discretionary powers in the government and its officials is the increasing state regulation of human affairs.21 Literally there are ten of thousand of discretionary powers to be found in the statutes and the delegated legislation. Discretionary power may be vested in the government, a Minister, an official or an instrumentality constituted to discharge some function of the state. There seems to be no identifiable principle to determine who should be the donee of a discretion in a particular situation. Perhaps, administrative expediency is the only test for the purpose. When discretion is vested in a Minister or a high official, he has to delegate the power to some official in a lower category, because it will be practically

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impossible for the Minister or the high official to take each and every decision by himself.22 Some discretionary powers may have far reaching consequences as they can apply to large number of people in the community. The exercise of some discretionary powers may have profound economic consequences. The Bland Committee in Australia describes the discretionary powers in the following words :23 "Discretion may, as well, depend on the existence of a series of pre-conditions being established to the satisfaction of the person having the power. These pre-conditions may relate to readily ascertainable facts, or have elements that raise intricate questions of law, embrace very vague considerations such as whether an applicant for a pension is of good character and deserving of a pension or raise questions calling for extremely delicate judgments such as whether a woman has been deserted without just cause. Entitlements to some benefits may be specifically excluded, unless the person with the discretion thinks it would be unfair for this to happen. There are powers to admit or accept and to refuse or reject claims; powers to grant less than the maximum or a prescribed benefit; powers to determine degrees of disablement; powers to select beneficiaries for benefits; powers to seize and forfeit goods; powers to exempt persons from statutory obligations; powers to remit and make rebates; powers to authorise what is otherwise explicitly prohibited by legislation; powers whose exercise can advance or prejudice a career, a livelihood or a cherished ambition; and there are powers whose exercise may impinge deeply on property rights, with sometimes no redress for the persons affected."

The above statement establishes the important role which discretionary powers play in the modern administrative process. An exercise of a discretion may result in inconvenience to a person or may cause him great financial loss. As for example, when a trading licence of an individual is cancelled by the licensing officer, the licensee has to suspend his business and thus suffer financial loss till his licence is restored, if at all. A discretionary power is a power exercisable in its discretion by the concerned authority. An official in whom discretionary power is vested has, to a greater or lesser extent, a range of options at his disposal and he exercises a measure of personal judgment in making the choice.24 As Davis says : "A public officer has discretion whenever the effective limits on his power leave him free to make a choice among possible courses of action or inaction." Thus, an official in whom a discretion is vested has power to make choices between various courses of action; even if he has to achieve a specific end he has a choice as to how that end may be reached. The essence of discretion is choice. The concept of discretion involves a right to choose between more than one possible course of action upon which there may be room for reasonable persons to hold differing opinions as to which option is to be preferred in a given situation.25 When applied to public functionaries, it (discretion) 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, uncontrolled by the judgment or conscience of others.26 When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And must be exercised within the limits, to which an honest man, competent to the discharge of his office ought to confine himself.27 The discretion is always coupled with a duty; it cannot be used to circumvent the obligation cast under the law or contract governing the parties.28 The discretionary nature of the power is denoted by the use of such expressions as "necessary", "reasonable", "if it is satisfied", "if it is of the opinion" etc. An American scholar says in this regard :29 When we speak of administrative discretion, we mean that a determination may be reached, in part at least, upon the basis of considerations not entirely susceptible of proof or disproof. A statute confers discretion when it refers an official for the use of his power to beliefs, expectations, or tendencies instead of facts, or to such terms as 'adequate', 'advisable', 'appropriate', 'beneficial', 'competent' 'convenient' 'detrimental', 'expedient', 'equitable', 'fair', 'fit' 'necessary', 'practicable', 'proper', 'reasonable', 'reputable', 'safe', 'sufficient', 'wholesome', or their opposites. These lack the degree of certainty.... They involve matter of degree or an appeal to judgment. The discretion enlarges as the element of future probability preponderates over that of present conditions; it contracts where in certain types of case quality tends to become standardized, as in matters of safety : on the other hand, certain applications of the concepts of immorality, fraud, restraint of trade, discrimination or monopoly are so controversial as to operate practically like matter of discretion.

Discretion is conferred in the area of rule-making or delegated legislation as well. For example, when a

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statute authorises the government to make rules which it thinks expedient or necessary to carry out the purposes of the Act, in effect, it confers a broad discretion on the government to decide what rules to make. The legislature hardly gives any guidance to the government as to what sort of rules to make under a specific statute. The government thus enjoys a wide choice as to what rules to make subject to the doctrine of ultra vires.30 Also, through the doctrine of excessive delegation,31 the courts seek to control, to some extent, the ambit of discretionary rule making power bestowed on the government. This aspect has already been considered earlier and need no longer detain us here. The subject-matter to discuss here is the discretionary power of the non-legislative type conferred by law on the Administration. This includes discretion vested in adjudicatory as well as non-adjudicatory bodies. Some reference has already been made to the norms observable by adjudicatory bodies in exercising their discretion. More or less the same norms apply to both types of bodies in exercising their discretion.32 In some cases, the concerned authority may have to follow some procedure while exercising its discretionary power under some statute. For example, an adjudicatory body has to follow natural justice before making a decision;33 a non-adjudicatory body may have to consult some prescribed body before reaching a decision in a specific case.34 The point to note is that here what we are concerned with is not so much the procedure as such but one stage removed from the procedural stage, i.e., the stage of actual decision-making, or, in other words, making of the final choice in a case by the Administration. For example, a licensing authority has power to cancel the licence in its discretion on certain grounds. The licensing authority acts according to the principles of natural justice and gives hearing to the licensee. Thereafter, it sits down to decide whether the licence is to be cancelled or not. It is this decisional process with which we are concerned here. We are here in the realm of substantive law as contra distinguished from procedural law.35 Incidentally, it may be mentioned that prescribing a pre-decisional procedure is an important control mechanism on the exercise of discretion by an authority, a point discussed later.36 Under Recruitment Rules, the Govt. of Orissa was empowered to relax any of the provisions of the Rules in public interest in respect of any class or category of persons. The Orissa Administrative Tribunal itself formed its opinion and ordered a Rule to be relaxed. In SLP the Supreme Court held that the exercise of executive discretion by the Tribunal was not proper.37 (a) Ministerial Functions As contrasted with the concept of discretionary power, there is the concept of ministerial power in which the law prescribes the function to be performed by the concerned authority in somewhat definite and specific terms, leaving no choice to it and leaving nothing to its discretion or judgment.38 Such a function involves no investigation into disputed facts; the law imposes a simple and definite duty on the authority concerned which acts in strict obedience to the provisions of law and it can act only in one particular manner, in a given fact situation. A good example of such a function is the issue of a radio or television licence. When a person fills in the required form correctly and tenders the prescribed fee, the licence is issued automatically by the post office without exercising any discretion. According to Keir and Lawson :39 "Many of the acts performed by public authorities or public officers are done in strict obedience to rules of statute or common law which impose on them a simple and definite duty in respect of which they have no choice." In Kavita v. State of Maharashtra ,40 it was held that the task of referring the question of detention of a person to an advisory board under the COFEPOSA is a mechanical or ministerial act, involving no exercise of discretion, though the government has full liberty to revoke the order of detention at that stage, or at any other stage. A minor discretionary element may not make the function non-ministerial. In Sharif Ahmad v. R.T.A. , Meerut,41 the Supreme Court regarded the function as ministerial. Here the Appellate Tribunal ordered the R.T.A. to grant a permit to each of the applicants on the production of a roadworthy vehicle and an affidavit to the effect that he had not been convicted for an offence under the Indian Penal Code during the last five years. The Court stated that--"the minor discretionary element given to it (R.T.A.) for finding out whether the terms of the Appellate Order had been complied with or not is not enough to deter the Courts from characterising the function as ministerial." Such applications after the orders of the Appellate Tribunal cannot be said to remain 'pending' within the meaning of the statute; what remained pending was merely a ministerial act to be performed by the R.T.A.

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S. 18(1) of the Rajasthan Land Acquisition Act, 1953, says that if a person whose land has been acquired does not accept the compensation offered, he may by written application require the collector to refer the matter to the court for determination. In the instant case, the collector refused to make the reference to the court. The High Court quashing the collector's order ruled that the collector had no discretion to refuse to refer the matter once the conditions prescribed in S. 18(1) were satisfied.42 Whether a statutory provision confers a ministerial or discretionary power is a matter of statutory interpretation. Normally, an expression that an authority 'may' do something indicates a discretionary power, but, at times, the courts have interpreted such expressions as conferring only ministerial powers. In modern times, the range of ministerial functions is comparatively much smaller while that of discretionary functions much larger. Discretion in the Administration is the all pervading phenomenon of the modern age. The statute book is replete with provisions giving discretion of one kind or the other to the government or its officials for various purposes. 3. REASONS FOR GROWTH OF DISCRETIONARY POWERS There are several very good reasons for conferring discretionary powers on officials. As has already been stated earlier,43 under the modern political philosophy of a welfare state, there has been a tremendous state regulation over human affairs in all democracies. This philosophy has led to a great extension of government responsibility for providing social services. Also, the government has assumed much greater responsibility for the management of the economy. Thus, the State has enacted legislation for urban development, slum-development, planning, economic regulation etc. Public transport, health, electricity, coal mining have all been brought under state control. All this has necessitated conferment of broad discretionary powers on the government, its officials and instrumentalities. It is felt that owing to the complexity of socio-economic conditions of modern life which the Administrative Process has to contend with, a government endowed with merely ministerial powers, without having any discretionary powers, will be far too inefficient, rigid, circumscribed, and unworkable. It will not be able to take quick decisions at critical times, and will be ineffective to deal with the modern complex socio-politico-economic problems of the society. Also, at times need is felt for technical or other expertise in regulating a particular activity and it is felt that expertise will develop on a case to case basis. To achieve these objectives viz., expedition, flexibility and expertise in administrative decision-making, it is felt necessary that, to some extent, officials must be allowed some choice as to when, how, and whether they will act. The officials ought to be given some choice in the matter of deciding specific cases. The reason is that more often than not, now-a-days the Administration is called upon to handle intricate problems involving investigation of facts, applying law to those facts, making of choices and exercising discretion before taking an action. Besides, a few more reasons may be cited leading to the need of conferment of discretionary powers. The present-day problems which the Administration is required to deal with are of complex and varying nature and it is difficult to comprehend them all within the scope of general rules. Most of the problems which arise are practically new, of the first impression. Lack of any previous experience to deal with them does not warrant the adoption of general rules. It is not always possible to foresee each and every problem; but when a problem arises, it must in any case be solved by the Administration in spite of the absence of specific rules applicable to the situation. Circumstances differ from case to case so that applying one rule mechanically to all cases may itself result in injustice. There is therefore need for individualization of the exercise of power by the Administration and hence the need for discretion. Statutes make general provisions; subject to these provisions specific cases have to be decided. The Administration is required to apply a vague or indefinite statutory provision to the fact-situation of each and every individual case coming before it for decision. The circumstances and the fact situation of two cases are not often identical. All these considerations make it inevitable to vest discretionary powers in the officials to take care of individual cases on their merits. Accordingly, the modern trend in Administrative Process is to vest large discretionary powers in officials which means that they enjoy large areas of choices between alternative courses of action; they can decide whether to act, or not to act in a given factual situation, or when to act or how to act. The legislation conferring discretionary powers does not specify clearly, definitively or articulately the conditions and circumstances subject to which, and the standards and norms with reference to which, the concerned official may have to exercise the powers conferred on him. The power to do nothing in a situation, or not to act at all, is also a significant power; it is no less important than the power to do something. As Davis observes in this connection : "all along the line an enormous discretionary power is the power to do nothing ... The power to do nothing, or almost nothing, or something

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less than might be done, seems to be the omnipresent power ........"44 As in any other modern democratic country, in India, as well, there is predominance of discretionary powers. Being a democratic country believing in regulated economy and not free economy, and having accent on centralised planning of socio-economic development, there is a much faster and more pervasive growth of discretionary powers in India. A demonstrable contemporary trend in India thus is that a large volume of case-law arises around the discretionary powers which is indicative of the wide-spread use of the technique of conferring discretionary powers on the Administration in India. A complete analytical study of such powers has not so far been attempted in India. Such a study is a great desideratum to understand the breadth and depth of such powers, the standards and procedural safeguards to which they are subject, and the control and safeguards which may be available against their improper exercise. 4. NEED FOR SAFEGUARDS Quite often, the legislature bestows more or less an unqualified or uncontrolled discretion on the Administration. The power is usually couched in broad phraseology giving a large area of choice to the Administration. Usually no guidelines are laid down in the parent act as to how the discretion being conferred by it is to be exercised by the donee of the power. The legislation conferring discretionary powers on the Administration is very broadly worded and does not specify clearly and definitely the conditions and circumstances subject to which, and the norms with reference to which, the Administration is to use the powers being conferred on it. Any number of typical statutory provisions may be culled out from the statute book to illustrate the breadth and variety of discretionary powers conferred on adjudicatory as well as non-adjudicatory bodies. Reference has already been made to discretionary powers enjoyed by adjudicatory bodies.45 Some examples of non-adjudicatory discretionary powers have already been given earlier in the previous Chapters on Inquiries and Search and Administrative Powers.46 The statutory provisions conferring discretionary powers usually do not enunciate any policy, principle or standard subject to which the power may have to be exercised by the concerned authority in a given situation. While broad discretionary powers may be the need of the day from the point of view of the Administration, nevertheless, from the concerned individual's point of view there are a number of pitfalls in a discretionary decision-making process. Discretionary decisions seriously affect the rights and interests of the individual. There are several disadvantages in the Administration adopting a case to case approach as contrasted with the adoption of a general rule applicable uniformly to all similar cases. Where a case to case decision operates on past facts, a general rule usually avoids retroactively and operates in future so that one has prior notice of the rules applicable to him and he may thus regulate his affairs accordingly. In a case to case approach, the concerned individual may be caught by surprise and he may not be able to adjust his affairs in the absence of his ability to foresee future administrative action. Such an approach also involves the danger of discrimination amongst individuals; there arises a possibility of individuals not getting like treatment under like circumstances. The authority may not react consistently in similar situations; it may discriminate between, and give differential treatment to, individuals in similar circumstances. The Administration is not bound to follow its own previous decisions which may give rise to inconsistency in decisions. This is subversive of the principle of equality before law. There always exists the danger of arbitrariness and abuse of discretion on the part of the administrators as they may not act according to any norms or principles but may act according to their own whims and fancy. It is axiomatic that the broader the discretion, the greater the chance of its abuse. Presently the ambit of discretionary powers being expansive, chances of their misuse abound. An administrator having complete freedom of action may indulge in arbitrary action thus seriously threatening individual freedom and this is subversive of the principle of rule of law. In the words of Justice DOUGLAS of the U.S. Supreme Court : "Where discretion is absolute, man has always suffered . . . Absolute discretion ... is more destructive of freedom than any of man's other inventions."47 And further : "Absolute discretion, like corruption, marks the beginning of the end of liberty".48 Further, the process of administrative decision-making is time-consuming and dilatory as it involves an individual decision in a multiplicity of cases. An administrator is inclined many a time to subordinate the claims to justice of the individual to the more general demands of administrative expediency and public policy. The reason is that he is basically an administrator and not a judge. The administrative decision-maker lacks independence to decide as he is susceptible to political, ministerial and bureaucratic influences and

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pressures.49 Administrative decisions are not usually made in the open and an administrator is not bound to give reasons for his decision unless the relevant statute imposes an obligation on him to do so which is not a common practice. An administrator is not bound to follow norms of procedural fairness unless the same are imposed on him by law or are implied by the courts.50 The modern government is impossible without discretionary powers. Discretionary power is a governmental tool in modern times to achieve certain desired objectives, e.g., for individualization of justice, but it is a dangerous tool as too much discretion may result in injustice from arbitrariness and inequality. DAVIS has observed in this connection : "I think the greatest and most frequent injustice occurs at the discretion end of the scale, where rules and principles provide little or no guidance, where emotions of deciding officers may affect what they do, where political or other favouritism may influence decisions, and where the imperfections of human nature are often reflected in the choices made."51

In such a context, it becomes necessary to devise ways and means to minimise the dangers of absolute discretion and to ensure administrative Justice to the individual. One cannot depend on the good sense of the Administration itself to use its powers properly. This brings forth the question of safeguards in order to ensure that discretion is properly exercised by the concerned authority. The question of safeguards in this area assumes crucial significance as we want "a government of laws and not of men." The importance of controlling the Administration in the exercise of its discretionary powers has been underlined by many scholars. It has been observed that it cannot be right or just that Minister should have unfettered discretion and that, as administrative action now-a-days touches and directly controls the everyday life of every person, it is very important that there should be adequate safeguards.52 Another scholar has observed : "Wide discretion there must be in all administrative activity, but it should be discretion defined in terms which can be measured by legal standards lest cases of manifest injustice go unheeded and unpunished".53 Thus, the major question in the area of discretionary powers is : What safeguards exist over decision-making by an authority in the discharge of its discretionary powers? To achieve this objective, a multipronged strategy has to be adopted. First, there is the question of limiting the scope and range of the discretion itself. It is necessary to confine the discretion in some measure, i.e., fix the boundaries of discretion, or to reduce the open-ended nature of a discretion, so that it does not turn into an unrestricted absolutism. This means reducing the range of subjective judgment by laying down standards, criteria and guidelines for its exercise. Discretion cannot be totally avoided in modern administrative process, but efforts may, and ought, certainly be made to reduce its range. This can be achieved by laying -down meaningful standards subject to which discretion will have to be exercised by the donee of the power. As has already been stated, most of the statutes confer discretion in too general terms without specifying any policy to be followed by the concerned authority in deciding individual cases. This can lead to arbitrary action. This can also give rise to decisional inconsistency. It is desirable to have uniformity and consistency in administrative decision-making in similar cases to the extent possible, because, as a matter of general principle, substantial lack of uniformity in administrative decision-making would lead not only to administrative chaos, but also to the collapse of public confidence in fairness of the Administration. In any individual case, it is highly relevant to take into account what has been done in other similar cases, otherwise decisions may come to be regarded as improper or discriminatory. In view of these manifold disadvantages, it appears preferable to lay down a general principle for the exercise of discretion rather than leave it completely free to decide from case to case without any common denominator in the decisional process.54 There are several possible ways in which this objective may be achieved. First, the law conferring the discretion may by itself lay down the standards and the circumstances which the concerned authority may have to apply in exercising its discretion and selecting a course of action. This means that the range of discretion should be cabined by the law itself as far as possible, or, in other words, discretion should be properly confined and structured. This means that the principles and criteria relevant to the exercise of such powers be specified so that their exercise is not open-ended and without guidance. To do so would be preferable from the individual's point of view for then the, exercise of discretionary power becomes

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predictable. In India, to achieve the objective being mentioned here, the courts have pressed into service the constitutionally guaranteed fundamental rights and have developed the doctrine that absolute and unrestricted discretion cannot be conferred on the Administration. This matter has been discussed at some detail in the next Chapter.55 Two, if the Legislature fails to lay down standards as suggested above, and in most cases the Legislature does fail to do so, then the Administration ought to seek to do so by taking recourse to the mechanism of delegated legislation.56 The Administration can use its power of delegated legislation to lay down rules of conduct observable not only by the people, but also by the Administration itself, in given situations. If a statute leaves a large amount of discretion in the hands of the Administration the technique of delegated legislation can be used by it to lay down criteria subject to which the discretion is to be exercised. Thus rules can be formulated by the Administration to channelise the broad stream of statutory discretion into a narrow stream, by limiting the freedom of action of the authority having discretion by laying down standards and norms according to which, the grounds on which, and the procedures according to which, the administrative discretion conferred by the statute is to be exercised in individual cases. If that is done, proper application of power from case to case can be ensured to a large extent. It would also help in predicting administrative decision in individual cases, thus making individual's rights somewhat certain and reducing chances of abuse of administrative discretion. Rules will also help in an uniform application of the law in a large number of cases which may have to be handled by the concerned authority, and especially when a number of parallel and co-equal authorities have to deal with similar cases arising under a specific law. Three, in some statutes, discretion is given to authorities, but the power to issue general directions setting out the principles and standards to guide the exercise of this discretion is vested in some higher authority. A typical case in this genre is that of the Board of Film Censors, referred to earlier.57 Fourthly, on a lower plane, the authority having discretion may itself resort to the technique of issuing some guidelines or norms of practice informing the concerned persons as to how it proposes to exercise its discretion. This technique may also achieve some uniformity in discretionary decisions in similar cases, but such a technique has its own limitations, a matter discussed later under the heading of 'Fettering Discretion.'58 It needs to be pointed out that laying down of norms, standards, criteria for the exercise of discretion is a process which needs constant adjustments from time to time for what may be valid at the initial experimental stage of a scheme may not remain valid later when some more experience is gathered by the working of the scheme. It may also be pointed out that laying down of these standards or norms to guide discretion is best done through statutory provisions and thereafter through rules : both of these are judicially enforceable; in case of directions, the question may arise whether the same are judicially enforceable or not.59 It may also be pointed out that laying down of standards or norms regulating discretion may make discretion somewhat less than absolute, but it cannot be completely eliminated, nor it will be desirable to do so. Administration functions on a broad canvas, and individual cases are bound to arise which may fall outside the guiding norms. Then there may be questions of interpretation of these guidelines and the Administration will have to take some decision on these matters in the first instance. Not all actions of the Administration can be bound by fixed rules. Many a time, it may not be possible to prescribe intelligible standards for the Administration to follow in the exercise of its discretion in varied fact-situations which may arise. But, in reality, the present-day situation is that the legislature rarely enacts a comprehensive legislation complete in all details. More often, the legislation is sketchy or skeletal, leaving many gaps and conferring powers on the Administration to act in a way it deems 'necessary', or 'reasonable', or 'if it is satisfied', or 'is of the opinion' and so on. Often the statute is very broadly worded and lays down no standards subject to which the discretionary power may have to be exercised. If standards are laid down, they are often vague or too general in nature. The justification often offered for such a situation is that the Administration has to meet varied, unforeseen and complex situations and to meet which it may be difficult to formulate definitive standards in advance in articulate terms and, therefore, the concerned authority has to be left free to act, and make choices between alternative courses of action which may be open to it to cope with a situation, according to its own judgment. Even where it may be possible to lay down standards of administrative behaviour, the legislature does not do so and often leaves the matter to an open-ended discretion of the Administration. The Administration does not also use its power of delegated legislation to fill in the gaps in the law and lay down norms to regulate discretionary powers. The reason is that there is reluctance on the part of the Administration to control and define its own powers.

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There is need to lay down fair procedures which a decision-maker must follow in making a discretionary decision. When substantive safeguards are lacking, procedural safeguards may assume some significance.60 This then brings us to the question of supervision of administrative decision-making. At the top is the judicial control of discretionary powers. When the legislature leaves the discretion wide open, the courts move in to lay down some norms to regulate discretionary powers to protect the individuals from the vagaries of the Administration.61 The courts have thus responded in a creative manner to the trend of growing discretionary powers of the Administration. The courts have done so because of the feeling that uncontrolled discretionary power may lead to infringement of an individual's rights. Even when some norms or standards are laid down the question may arise whether a particular discretionary decision conforms with these norms or standards. The general legal principle is that administrators ought not to function in excess of their power given to them by law. This is known as the doctrine of ultra vires.62 A very notable feature of the Indian Legal System is that it provides for several channels by following which an aggrieved person can always bring a discretionary decision before the Courts for scrutiny.63 Thus, the question of grounds of judicial control of discretionary powers assumes crucial significance and is the theme of the next two Chapters. Judicial control of discretionary powers functions at two levels. One, at the level of conferment of discretion through legislation by the legislature. The idea is to compel the legislature to desist from conferring too broad or uncabined discretionary power.64 In India, the courts have sought to spell out some limits on the conferment of broad discretionary powers by invoking some Fundamental Rights, guaranteed by the Constitution, as for example, Arts. 14 and 19. This necessitates that the law lays down some substantive and/or procedural safeguards on the exercise of discretionary power, otherwise the law may be held unconstitutional. Even the courts may imply some safeguards into the law to save it from being invalidated. If the court finds that too broad discretion has been conferred on an authority under a law, it may read it down and hold it valid;65 but if that is not possible, it may declare the same to the unconstitutional by invoking some applicable Fundamental Right. Two, if the delegation of power is valid then the courts impose some control over the actual exercise of its discretionary powers by the official concerned. The idea is to ensure that the officials discharge their discretionary functions according to law and within the legal limits-express or implied. With the passage of time, the courts have evolved several norms and idioms to regulate the exercise of discretionary powers, to ensure that such powers are exercised according to law, and to contain, to some extent, seemingly broad discretionary powers. These norms are derived in India from two sources : (i) English common law; (ii) Fundamental Rights provisions in the Indian Constitution. The judicial review of discretionary powers thus constitute a very significant, though complex, segment of Indian Administrative Law.66 While the courts have been somewhat active and creative lately in the matter of controlling discretionary powers, the situation cannot be said to be entirely satisfactory.67 The reality of the present-day situation is that the judicial control of discretionary powers is, on the whole, weak, deficient and marginal. Therefore, in the common-law countries, a quest is going on for finding out some more effective supervisory mechanism for the purpose.68 Resort is being had increasingly to the institution of tribunals. The relevant law may provide for an appeal from the decision-making authority to a tribunal.69 As will be seen later,70 unlike the court, the tribunal may go into the merits of a discretionary decision and thus may be more effective as a control mechanism over discretionary decisions than a court. In Australia, a very innovative step has been taken, viz., to establish the Administrative Appeals Tribunal (AAT)-an independent tribunal having general jurisdiction to review administrative decisions, i.e., decision of officials rather than decisions of other tribunals. AAT can review a decision on merits including policies.71 Having one tribunal, instead of a miscellany of specialist tribunals, has the advantage of standardising principles and procedures in administrative process.72 In Britain, as early as 1961, in a report by Justice,73 a suggestion was made to establish a General Tribunal to deal with miscellaneous appeals from discretionary decisions.74 Two main reasons were mentioned to support this suggestion : 1 2

To set up a separate tribunal to deal with each area of discretion might mean a great proliferation of tribunals; in some areas, the number of cases may be so small as not to justify the setting up of a separate tribunal in that area. At the same time, it would be unfair to deny a citizen the right to challenge a discretionary decision.

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Said the Report : "In our view, a solution to this practical difficulty should be sought which will avoid a proliferation of tribunals but will nevertheless provide the means for a citizen to obtain an impartial adjudication . . ."

Another significant step taken in some countries to strengthen supervision over discretionary decisions rendered by the officials is to establish the institution of Ombudsman, a topic discussed later in the book.75 Besides, it is also necessary for the departments to improve their internal supervision by superior officers over junior officers making discretionary decisions. There should be proper intra-departmental procedures to ensure that persons aggrieved by decisions of lower officers may have their grievances redressed at a higher level. Provisions ought to be made for a formal hierarchical administrative appeals within the Department. It may be possible to provide by law a review by a higher authority of a decision of a lower authority within the department itself. These steps, if adopted, will greatly reduce the number of cases going to either the tribunal or the courts for review. It is also suggested that to improve the system of discretionary powers, the administrative departments should make available more information to the public as to their rights and entitlements and the procedures to secure them. The Legislature also has some mechanism to supervise the Administration. On the whole, however, this mechanism is very weak and ineffective as has been discussed later.76 (a) A network of restrictive principles When a statute vests discretion in an authority to exercise a statutory power, such authority cannot exercise the same in an unfettered manner otherwise the courts are constrained to intervene. That is why from time to time, courts have "woven a network of restrictive principles" which the statutory authorities have to follow while exercising the discretion vested in them. This principle has been extended even when the authorities have to exercise administrative discretions under certain situations. Another well-known principle which has emerged during the years that where a statute vests discretion in the authority to exercise a particular power, there is an implicit requirement that it shall be exercised in a reasonable and rational manner free from whims, vagaries and arbitrariness.77 In Vijayabai v. Shreram Tukaram ,78 the Apex Court held that the Tahsildar while exercising his suo motu power under Section 49-B of the Bombay Tenancy and Agricultural Lands (Vidarbh Region) Act 99 of 1958 has to initiate on the basis of the materials before him and not arbitrarily. It is not an omnipower to be exercised on the likes and dislikes of the authority. Though such a power is a wide power but it has to be exercised with circumspection within the limitations of the statute. Wider the power, the greater circumspection has to be exercised. "A statutory discretion is not, however, necessarily or, indeed, usually absolute : It may be qualified by express and implied legal duties to comply with substantive and procedural requirements before a decision is taken whether to act and how to act. Moreover, there may be a discretion whether to exercise a power, but no discretion as to the mode of its exercise; or a duty to act when certain conditions are present, but a discretion how to act. Discretion may thus be coupled with duties."79

1 (1598) 5 Co 99b, as cited by WADE & FORSYTH in Administrative Law, 9th Edn., 2005, p. 351. 2 VI (2004) SLT 428, 430, para 6. 3 Roberts v. Hopwood, 1925 AC 578. 4 (1770) 98 ER 327. 5 AIR 1981 SC 2085 [LNIND 1980 SC 422] [LNIND 1980 SC 422] [LNIND 1980 SC 422], 2095. 6 AIR 1995 Cal 327 [LNIND 1995 CAL 53] [LNIND 1995 CAL 53] [LNIND 1995 CAL 53], 333. 7 (1970) 4 Hurr 2528.

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8 (1971) 1 All ER 1148 9 (1982) 3 All ER 141. 10 AIR 1998 Ori 213 [LNIND 1998 ORI 67] [LNIND 1998 ORI 67] [LNIND 1998 ORI 67], 216. 11 AIR 1998 Ker 124 [LNIND 1997 KER 334] [LNIND 1997 KER 334] [LNIND 1997 KER 334], 127. 12 Extracted from P. Ramanathaiyar's Advanced Law Lexicon, 2005, Vol. II, pp. 1410, 1411 and 1412. 13 UOI v. Kuldeep Singh (2004) 2 SCC 590 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056], para 19 : AIR 2004 SC 827 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056]. 14 UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056], para 22 : AIR 2004 SC 827 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056]. 15 7 1891 AC 173 : (1886-90) All ER Rep 651 (HL). 16 (2004) 2 SCC 370 [LNIND 2004 SC 81] [LNIND 2004 SC 81] [LNIND 2004 SC 81], para 9 : AIR 2004 SC 1581 [LNIND 2004 SC 81] [LNIND 2004 SC 81] [LNIND 2004 SC 81]. 17 (2004) 2 SCC 590 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056], para 21 : AIR 2004 SC 827 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056]. 18 Administrative Law by SIR WILLIAM WADE, 9th Edn., 2005, p. 233. 19 State of U.P. v. Jagendra Singh, AIR 1963 SC 1618 [LNIND 1963 SC 52] [LNIND 1963 SC 52] [LNIND 1963 SC 52]: (1963) 2 SCR 197. 20 State of M.P. v. G.C. Mandawar, AIR 1954 SC 493 [LNIND 1954 SC 90] [LNIND 1954 SC 90] [LNIND 1954 SC 90]: (1955) 1 SCR 599. 21 Supra, Chapter I; infra, Chapters XVIII and XIX. 22 Infra, Vol. 11, under Sub-Delegation. 23 Interim Report, para 19, p. 5. 24 DAVIS, Discretionary Justice : A Preliminary Inquiry, 4 (1969). 25 DAVIS, Discretionary Justice : A Preliminary Inquiry, 4 (1969); Lord DIPLOCK in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council, (1976) 3 All ER 665. 26 TOMLIN'S Law Dictionary, as cited in UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056], para 20 : AIR 2004 SC 827 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056]. 27 Sharp v. Wakefield, 1891 AC 173 : (1886-90) All ER Rep 651 (HL) per Lord HALSBURY, L.C., as referred in UOI v. Kuldeep Singh, (2004) 2 SCC 590 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056], para 21 : AIR 2004 SC 827 [LNIND 2003 SC 1056] [LNIND 2003 SC 1056] [LNIND 2003 SC 1056]. 28 Siddheshwar Sahakari Sakhar Karkhana Ltd. v. CIT, (2004) 12 SCC 1 [LNIND 2004 SC 902] [LNIND 2004 SC 902] [LNIND 2004 SC 902], 19-20 (paras 31). 29 FREUND, Administrative Powers over Person and Property, 71 (1928). 30 Supra, Chapter V, 95 et seq. 31 Supra, Chapter IV, 56-57. 32 Supra, Chapters XIII and XIV. 33 Infra, Chapter XIX. 34 Supra, Chapter IX. 35 Infra, Chapter XIX. 36 Infra, Chapter XIX. 37 Govt. of Orissa v. Hanichal Roy, (1998) 6 SCC 626, para 3. 38 GRIFFITH & STREET, Principles of Administrative Law, 145 (1973); KEIR & LAWSON, Cases in Constitutional Law, 402

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(1967); K. DAVIS, Discretionary Justice, 4, (1969); NEDJATIGIL, Judicial Control of Administrative Discretion: A Comparative Study, (1985) 14 Anglo American LR 97. 39 KEIR & LAWSON, Cases in Constitutional Law, 402 (1967). 40 AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313]: (1981) 3 SCC 558 : 1981 Crlj 1262. For further discussion on preventive detention, see, infra, Chapters XVIII and XIX: JAIN, Cases, Chapters XV and XVI. 41 AIR 1978 SC 209 [LNIND 1977 SC 301] [LNIND 1977 SC 301] [LNIND 1977 SC 301]: (1978) 1 SCC 1. 42 Lal Deen v. State of Rajasthan, AIR 1983 Raj 225. 43 Supra, Chapter I. 44 DAVIS, Discretionary Justice, A Preliminary, Inquiry, 4 (1969), at 22. 45 Supra, Chapters XIII and XIV. 46 Supra, Chapter XVI, Also see, supra, Chapter XV. 47 Srinivas v. Wunderlick, 342 US 98, 101 (1951). 48 New York v. United States, 342 US 882, 884 (1951). 49 See, for example, under (Failure to exercise Discretion), infra, Chapter XIX 50 Supra, Chapter IX, under (Natural Justice). 51 DAVIS, Discretionary Justice : A Preliminary Inquiry, 4 (1969). 52 RICHARD C. FITZGERALD, Safeguards in the Exercise of Functions by Administrative Bodies 28 Can BR 538 (1950). 53 WADE, Courts and Administrative Process, 63 LQR 173 (1949). 54 See, BAKER, Policy by Rules or Ad Hoc Approach-Which should It be? 22 Law and Contemp. Problems, 657 (1957); Friendly, Federal Administrative Agencies: The Need for Better Definition of Standards, Chapter I and VII (1962); DAVIS, Discretionary Justice (1969). 55 Infra, Chapter XVIII: JAIN, Cases, Chapter XV. 56 Supra, Chapter IV. 57 Supra, XIII. 58 Infra, Chapter XIX. For relevant cases on this point, see, JAIN, Cases, Chapter XVI. 59 Supra, Chapter VIII. 60 On this point, see, infra, Chapter XIX. 61 For this purpose, see, Chapter XIX, infra. 62 See, infra, Chapter XIX, for explanation of this doctrine. 63 For a discussion of this aspect, see, infra, Vol. II, under Judicial Control. 64 Infra, Chapter XVIII. For relevant cases in this area, see, JAIN, Cases, Chapter XV. 65 Jagdish Pandey v. Chancellor, Univ. of Bihar, AIR 1968 SC 353 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]: 1968 (1) SCR 231. 66 Infra, Chapters XVIII and XIX. 67 Infra Chapters XVIII and XIX. 68 Infra, Chapter XIX. 69 Supra, Chapter XIII; JAIN, Cases, Chapter XII. 70 Infra, also, supra, XIII. 71 In Australia, sometime back a full-fledged inquiry was conducted on the review of discretionary powers of the Administration: see Final Report of the Bland Committee on Administrative Discretions (1973). See also, M.P. JAIN, Changing Face of

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Administrative Law, India & Abroad. The Bland Committee Report led to the creation of the Ombudsman system and an Administrative Appeals Tribunal to review discretionary decisions on merits in many cases. See, supra, Chapter II and Chapter XIV. 72 Sir ANTHONY MASON, Administrative Review : The Experience of the First Twelve Years, (1989) 18 Federal LR 122. 73 Justice, The Citizen and the Administration : The Redress of Grievances, (1961). 74 Report, 31. 75 Infra, Vol. II. 76 Infra, Vol. II. 77 Union of India v. Jesus Sales Corporation, (1996) 4 SCC 69 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608], para 4 : AIR 1996 SC 1509 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608]. 78 (1999) 1 SCC 693 [LNIND 1998 SC 1180] [LNIND 1998 SC 1180] [LNIND 1998 SC 1180], 698 (para 9) : AIR 1999 SC 431 [LNIND 1998 SC 1180] [LNIND 1998 SC 1180] [LNIND 1998 SC 1180]. 79 HALSBURY's Laws of England, 4th Edn. vol 1.

M P Jain Principles of Administrative Law/M P Jain Principles of Administrative Law/Volume 1/CHAPTER XVIII DISCRETIONARY POWERS (II)

CHAPTER XVIII DISCRETIONARY POWERS (II) 1. FUNDAMENTAL RIGHTS AND ADMINISTRATIVE DISCRETION As has been pointed out earlier,1 there is a demonstrable trend at present in all democratic countries to leave a large amount of discretion in the hands of authorities. Legislation conferring powers on the Administration is usually drafted in broad and general terms; it leaves an exceedingly wide range of choice to the administrator to apply the law to actual, specific, factual situations, that is, from case to case, and does not usually specify the standards, conditions and circumstances subject to which, and the norms with reference to which, the concerned administrator may use the discretionary powers vested in him. This leaves the administrator free to exercise his power according to his own judgment. Such a development is disquieting because, according to a well known adage, 'absolute power corrupts absolutely', and, therefore, broad powers present possibilities of being misused and exercised in an arbitrary and discriminatory manner. It thus becomes necessary to devise proper safeguards to neutralise such an eventuality so that injustice is not done to any person. It is not possible to depend merely on the good sense of the Administrator to use its power properly, for broad power always breeds the danger that its wielder will get power drunk. The statute conferring discretionary power hardly ever creates any control mechanism to oversee the exercise of power by the concerned administrator. Therefore, the courts have to play a major role in the process of controlling the functioning of the Administration.2 In this connection, some Fundamental Rights guaranteed by the Indian Constitution through Articles 12 to 35 play a significant role.3 In England, due to the operation of the doctrine of sovereignty of Parliament, courts do not review legislation, and hence they do not control the quantum of discretion bestowed on the Administration by Parliament. As a law passed by Parliament is valid in all circumstances, it may confer absolute discretion on the Administration, without prescribing any conditions to regulate, or imposing safeguards, procedural or substantive, to regulate its exercise. The Administration may be constituted into a final judge to decide when and how to exercise its power and take action. What the courts can do there is to control, to some extent, the exercise of discretion by the Administration on such grounds as ultra vires, mala fides, etc.4 As against this, the position in India is somewhat different. The Fundamental Rights guaranteed by the Constitution to the

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people constitute a limitation on the legislative and executive powers of the government, and, consequently, constitute an additional dimension of control over Administrative discretion. The courts in India, besides controlling the exercise of Administrative discretion on practically similar grounds as in England, also use certain Fundamental Rights, e.g., Arts. 14, 19 and 21, to control discretionary powers of authorities at two levels, viz. : (1)

(2)

At the stage of conferral of discretion, by examining the law in question and declaring it unconstitutional if it seeks to confer too broad discretion on the Administration without laying down any principle or policy to regulate its exercise. Fundamental Rights in India thus afford a basis to the courts to control the bestowal of discretion, to some extent, by testing the law in question on the touchstone of Fundamental Rights. For such an evaluation, the courts take into account both the procedural and substantive aspects of the law in question. The substantive part is examined to see whether the discretion conferred is within permissible limits; the procedural part is examined to see whether there are necessary safeguards, subject to which the discretion is exercised. The courts may at times imply some standards or safeguards into the law, or read it down or give it a restrictive interpretation in order to uphold its validity. At the stage of the application of the law and the use of its discretion by the Administration in a specific factual situation, by examining the administrative action with a view to seeing whether it conforms with the requirements of the Fundamental Right in question. Arbitrary discretionary action is invalid. The situation here is that the law conferring discretion is valid, but the action taken by the concerned authority may not be. The courts thus control the actual exercise of discretion by an authority on the touchstone of the Fundamental Rights. No law in India can clothe Administrative discretion with complete finality, for the courts can always examine the ambit, and even its exercise, from the point of view of its conformity with the Fundamental Rights. The Fundamental Rights thus afford a basis to the judiciary to control administrative discretion to some extent.

Both the aspects mentioned above are considered in this Chapter. 2. DOCTRINE OF EXCESSIVE DELEGATION OF DISCRETION As stated earlier,5 the courts have generally attempted to control the delegation of legislative power on the Administration through the doctrine of 'excessive delegation of legislative power'. Correspondingly to that, the courts have also developed the doctrine of 'excessive delegation of discretion' by invoking certain Fundamental Rights. The doctrine envisages that conferral of too broad and uncanalised discretion on the Administration is invalid. Discretionary power ought to be hedged by policy, standards, guidelines and/or procedural safeguards, otherwise the courts may declare the statutory provision conferring sweeping discretion as void. Comparatively speaking, the courts have shown greater deference to laws conferring powers of delegated legislation than to the laws conferring discretion. In the former case, often the courts have been satisfied with vague or broad statements of policy and have even upheld statutes when the policy was not apparent.6 But the courts have adopted somewhat more critical attitude while scrutinising statutory provisions conferring discretion with reference to Fundamental Rights. The reason is that delegated legislation being a power to make orders of general applicability presents less chance of administrative arbitrariness than administrative discretion which is applied to individual cases. Still, the courts adopt a flexible attitude in applying the doctrine of excessive delegation of discretion to different situations and show a good deal of tolerance towards conferral of large discretionary powers if they can find some substantive and/or procedural safeguards to regulate the exercise of power. At times, vague and general standards have been held as adequate. The Court may at times imply a standard to save a statute from an unconstitutional broad delegation. Even such a judicial approach serves a useful purpose insofar as a standardless delegation becomes subject to a judicially-made standard. The judicial tendency is to seek to uphold, rather than invalidate, legislation on this ground. It is only in an extreme case of too broad discretion having been conferred without any policy or procedural safeguards that the court may be persuaded to declare the relevant law invalid on the ground of excessive delegation of discretion. However, it needs to be emphasized that the final word in this regard rests with the court and not the legislature. Bhagwati, J., has spoken of the doctrine as follows :7

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It is significant to note that the entire development of Administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The law always frowns on uncanalised and unfettered discretion on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judicial decisions structured and regulated.

However, only because a wide discretionary power has been conferred on the statutory authority, that by itself would not lead to a presumption that the same is capable of misuse or on that count alone the provisions of Art. 14 of the Constitution would be attracted. But, when a statute confers a wide power on a statutory authority, a closer scrutiny would be required.8 The Section 200(1) of the Motor Vehicles Act, 1988 gives discretionary power to the authorised officer to compound certain offences under the Act, if the accused is willing, by charging a compounding fee. It was contended that this power was unguided, uncanalised and arbitrary. The Apex Court held that it was not so because it was not mandatory that the authorised officer would always compound the offence as it depended upon the willingness of the accused and might be done even before institution of the prosecution case. Besides, Section 194 of the Act which is the penal and charging section prescribes the maximum outer limit within which the compounding fee would be prescribed and so long as the compounding fee did not exceed the fine prescribed by the penal section, the same could not be declared to be either exorbitant or irrational or bereft of guidance.9 One great advantage of having a statement of a standard or policy in the statute is to enable the courts to assess whether a specific administrative action is in conformity with this standard or policy.10 This purpose can be achieved effectively only if the courts insist that the legislature expresses its policy or standards clearly and in such terms as would help the courts to keep the exercise of discretion within the four corners of the legislative policy. It may not be out of place to mention here that in the Fundamental Rights there exists a source of judicial power which, if fully exploited, can go a long way in mitigating the dangers of too much administrative discretion--a development which is causing a good deal of anxiety to thinking people in many democratic countries. Fundamental Rights are real and not notional; they are substantial and not fictional, and they should be treated by the courts as such. Fortunately, the Indian Constitution incorporates within itself several checks and balances and it depends upon us how we use them. It would lead to better democratic ideals and traditions if we fully exploit the expedients which the Constitution has placed at our disposal for controlling administrative action and keeping it within proper bounds. In a welfare state, a balance has to be drawn between public power and individual freedom, and it is for the courts to ensure that this balance is not tilted too much in favour of the Administration as against the individual. 3. ART. 14 : RIGHT TO EQUALITY A very fascinating development over the years in Indian Administrative Law has been the emergence of Art. 14 as embodying a guarantee against administrative arbitrariness. Any action of the Administration which may be regarded as "arbitrary, discriminatory or unequal" may be challenged under Art. 14 of the Constitution. The most frequently invoked constitutional provision to challenge conferral of broad discretionary powers is Art. 14. This provision is of a general nature and can be applied in any situation. Art. 14 operates at two levels. First, delegation of extremely broad powers to the Administration may be challenged under Art. 14. Secondly, if the delegation of power is valid, exercise of the power in a concrete factual situation may be challenged as discriminatory. The first proposition is discussed here. The second proposition is discussed later in this Chapter. Art. 14 has emerged into a kind of a general safeguard against the conferral of too broad discretionary powers. Art. 14 constitutes a great potential reservoir of judicial power to regulate administrative discretion and can serve as a bulwark against excessive administrative discretion. Art. 14 has thus evolved into an instrument of controlling extremely broad discretionary power at its source, i.e., at the stage of legislation

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conferring power. It is usual to challenge conferral of broad discretion by a statute under Art. 14 on the ground that uncontrolled and arbitrary discretion has been conferred on an administrative authority and that this violates Art. 14 Art. 14 guarantees to every person "equality before law" and "equal protection of law". This constitutional provision condemns discrimination; it forbids class legislation, but permits classification founded on intelligible differentia and having a rational relationship with the object sought to be achieved by the Act in question. At times, a statute may not make a classification by itself, but may leave the same to the executive to make for the purpose of applying the law; for this purpose, the law may confer very broad discretion on the Administration without specifying any norm or principle or policy to regulate its exercise. Speaking generally, the judicial view is that conferment of arbitrary power on an authority, unregulated by any rule or principle or policy, offends Art. 14.11 As Bhagwati, J., has emphasized in the Supreme Court decision in Bachan Singh v. State of Punjab, 12 Rule of Law which "permeates the entire fabric of the Constitution and indeed forms one of its basic features" excludes "arbitrariness". "Whenever we find arbitrariness or unreasonableness there is denial of rule of law." Art. 14 enacts primarily a guarantee against arbitrariness in state action. "Equality is antithetical to arbitrariness." An arbitrary act is unequal. "Every state action must be non-arbitrary and reasonable. Otherwise, the court would strike it down as invalid." To challenge an arbitrary action under Art. 14, the petitioner does not have to show that there is someone else similarly situated as he himself or that he has been dissimilarly treated. The Supreme Court has observed in Kalra :13 " [A]rticle 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equality of protection by law."

On the same point, the Supreme Court has observed in another case14 as follows : . . . our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti-thesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of Art. 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist.

This new dimension of Art. 14 transcends the classificatory principle which has been applied for long.15 Art. 14 is not now equated with the principle of classification. It has a much broader scope. It is primarily a guarantee against arbitrary state action and the doctrine of classification has been evolved only as a subsidiary rule for testing whether a particular state action is arbitrary or not. If a law is arbitrary or irrational it would fall foul of Art. 14. Therefore, the conferment of arbitrary discretion on an authority to select persons, or things for application of law without laying down any policy or principle to guide the exercise of such discretion is invalid. The conferment of unguided and unstructured discretion on an authority violates Art. 14 because the law enables the authority to exercise the discretion arbitrarily and thus discriminate without reason. The general principle therefore is that conferment of too broad, sweeping, uncanalised, uncontrolled discretion on an administrative authority violates Art. 14. The reason underlying this proposition is that uncontrolled discretion may easily degenerate into arbitrariness; it creates the danger of discrimination and denial of equality among those similarly situated which is subversive of the doctrine of equality enshrined in Art. 14. Therefore, if a statute does not disclose a policy or principle or standard subject to which the discretion conferred by it is to be exercised, then the statute is bad as conferring arbitrary power. As the Supreme Court has stated in Naraindas v. State of Madhya Pradesh ,16 Art. 14 "ensures equality before law and strikes at arbitrary and discriminatory State action . . . If power conferred by statute on any authority of the State is vagrant and unconfined and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause, because it would permit arbitrary and capricious exercise of power, which is the antithesis of equality before law." Though the principle is clear and well established that unguided or arbitrary discretion cannot be conferred on the Administration, yet its application by the courts to various specific and concrete factual situations bristles with difficulties. In order not to hamper administrative action too much, the courts show a lot of

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flexibility in their approach and deference to the legislative will; at times, they uphold legislation even when the policy to guide the discretion is not definite but somewhat vague and inarticulate. The courts have also held that it is not necessary that the specific statutory provision conferring discretion must itself lay down the policy or the guidelines for the Administration to follow. If the policy can be ascertained from the preamble, the long title, or other provisions of the Act in question, or even the rules made under the Act, then the discretion conferred would not be regarded as uncontrolled or unguided.17 The reviewing court goes a long way to uphold the provision by finding out the guiding policy, and at times, when the same is not obvious in the impugned statute, the court may even supply the same itself.18 As Bhagwati, J. has stated in Bachan Singh,19 the court sometimes even tries to discover the policy or principle in the crevices of a statute in order to save it from challenge under Art. 14. In some cases, the courts have upheld broad discretionary powers on the ground that the relevant law provides procedural safeguards to the person affected and so the discretion is not arbitrary. Then, there is also the presumption in favour of validity of a statute under Art. 14, and the onus falls upon him who challenges it to show that the law is discriminatory. All these propositions combined lead to the result that it is only in a rare case that a court would be persuaded to hold a law to be unconstitutional under Art. 14 on the ground of excessive delegation of discretionary power, or the law being discriminatory. However, in an extreme case, if after utmost "effort and intense search, no policy or principle to guide the exercise of discretion can be found, the discretion conferred by the law would be characterised as unguided and unstructured and so bad under Art. 14. This can be illustrated by the following few illustrative cases. The Municipal Corporation of Hyderabad had an idea of erecting, for the use and benefit of the public, road direction boards on various thoroughfares of the twin cities of Hyderabad and Secunderabad for sometime but due to financial restrains could not take any steps for its realisation. A party approached the corporation with a proposal formulated by it on an in-depth study, in the form of a scheme and project on its own cost to meet the same ends. The corporation authorities on examination were satisfied therewith and granted it permission to undertake the work as a pilot project on trial basis without affording opportunity to others. The Supreme Court held that the exercise of power by the corporation in such circumstances was not arbitrary or illegal.20 (a) Provisions held Invalid First a few cases in which conferral of discretion has been invalidated may be taken note of. In State of Punjab v. Khan Chand ,21 the Supreme Court struck down a law empowering the State Government to requisition any movable property if it considered it "necessary or expedient," and pay such compensation as it determined. The Court ruled that the law conferred an uncontrolled power on the government and thus violated Art. 14 for the following reasons : it did not lay down the purposes for which property could be requisitioned; it did not even say that the property could be requisitioned only for a public purpose, or that the power could be exercised only in an emergency or in some special contingency; the government was not required to specify the purpose of requisition; no principles were laid down for determining compensation; and the power of requisition could be delegated even to a petty official. The Court emphasized that conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever contravened Art. 14 as such power could easily degenerate into arbitrariness. "When individuals act according to their sweet-will, there is bound to be an element of 'pick and choose' according to the notion of the individuals." Air India, a statutory corporation, made a regulation fixing the normal retirement age for air hostesses at 35 years, but authorised the managing director to extend this age in case of any air hostess to 45 years at his option subject to other conditions being satisfied. The Supreme Court ruled in Air India v. Nergesh Meerza 22 that the regulation was violative of Art. 14 and suffered from the vice of excessive delegation of discretion insofar as it armed the managing director with uncanalized and unguided discretion to extend the age of retirement of any air hostess. He could exercise his discretion in favour of one air hostess but not another which might result in discrimination. The regulation provided no guidelines, rules or principles to govern the exercise of discretion by the managing director. The Court observed : "It is true that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms the power has to be struck down as being violative of Art. 14." Besides the absence of guidelines, the regulation provided for no procedural safeguard, e.g., it did not require the managing director to record reasons for refusing to extend the

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retirement period of an air hostess, or an appeal to a higher authority against his order. The matter of extension was thus left entirely to his mercy and sweet-will. The effect of the ruling was that air hostesses would retire at the age of 45 years. Under the Gold Control (Licensing of Dealers) Rules, 1969, the licensing officer could refuse to renew a licence if there was 'too low a turnover', during the previous year. The rule was held bad as there was absolutely no guideline to determine what exactly was too low a turnover and, thus, the rule was capable of arbitrary application. Further, the officer could renew the licence if the dealer satisfied him that there was adequate cause for the too low turnover. This was also held bad as there was no guidance given and different officers could work the rule differently in relation to different dealers.23 A powerful reiteration of the principle that uncontrolled and unguided discretionary power is incompatible with Art. 14 comes from the Supreme Court in Suman Gupta v. State of Jammu & Kashmir .24 On the recommendation of the Medical Council of India, a system has been developed with a view to encouraging national integration to reserve 5% seats in every medical college, other than those where admissions are made on an all India basis, on a reciprocal basis for students of the other States. The State Government started nominating candidates to the reserved seats in the medical colleges of other States. The instant case raised the question of the validity of the power of the State Government to make such nominations in its absolute discretion. The Court declared as unconstitutional the procedure of nominating candidates by governments "in their absolute and unfettered choice". While accepting the goal of national integration as highly commendable and laudable, the Court did not accept the thesis that the selection of candidates for that purpose must remain in the unlimited discretion and uncontrolled choice of the State Government. The Court observed : "We think it beyond dispute that the exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason--relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so." In a system founded on Rule of Law "it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason." The Court emphasized that Art. 14 is violated by powers and procedures which in themselves result in unfairness and arbitrariness. Said the Court : . . . there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether.

Thus, if the State Government desires to advance the objective of national integration it must adopt procedures "which are reasonable and are related to the objective." "It is incumbent on the State Government to adopt a criterion or restrict its power by reference to norms which, while designed to achieve its object, nevertheless, confine the flow of that power within constitutional limits. The Court rejected the argument advanced by the governments that as they financed medical education within their respective States, they were entitled to exercise absolute discretion in nominating candidates to outside medical colleges. The court directed the Medical Council to formulate "a proper constitutional basis for determining the selection of candidates for nomination" and until such a policy was formulated and concrete criteria embodied in the selection procedure, the nominations must be made strictly on merit. A rule authorising a public undertaking to terminate the services of a permanent employee by merely giving him three months' notice, or giving him three months' salary in lieu of notice, has been held to confer an arbitrary discretion on the concerned body. In the absence of any substantive and procedural safeguards, such a power was capable of vicious discrimination. No guidelines were laid down to indicate the circumstances when such power could be exercised. The concerned employee got no opportunity of being heard against termination of his services. The concerned body could discriminate between employee and employee; the services of one employee could be terminated under the rule in question while another employee could be dismissed after holding a formal inquiry against him.25 The Supreme Court has characterised such a rule as a 'naked hire and fire' rule.26 Recently, in Delhi Transport Corporation v. D. T. C. Mazdoor Congress ,27 the Supreme Court has invalidated a regulation made by the Corporation providing for termination of services of permanent employees by giving a month' s notice or pay in lieu thereof without recording any reason therefor in the order of termination, and without giving any opportunity of being heard

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to the concerned employee. In the words of Ray, J. :28 "Thus a regular, temporary or permanent employee of the State Transport Authority can be dismissed or removed from service at the whims and caprices of the concerned authority without any reason whatsoever and undoubtedly this evidences that such unbridled, indiscriminate and uncanalised power to terminate the services even of a permanent employee without assigning any reason and without giving any opportunity of hearing as fairplay and justice demands a reasonable procedure is per se, arbitrary and discriminatory........"

However, if a post becomes surplus the holder of the post would also become redundant. In such an event, his services can be terminated.29 The Government Service Rules provide for compulsory retirement of government servants before the normal age of superannuation. The competent authority can compulsorily retire a government servant if it is of the opinion that it is in "public interest" to do so and if the concerned servant has put in 25 years of qualifying service. Such a rule has been held valid vis-a-vis Art. 14 on the ground that the discretion to retire a servant is to be exercised in "public interest" and hence it is not unqualified.30 In Senior Supdt. of Post Offices v. Izhar Hussan ,31 a rule conferring absolute power to the government to compulsorily retire an employee without any guidelines was held invalid under Arts. 14 and 16. In the instant case, some guidelines were laid down in the directions. But the Court ruled that directions could not validate an invalid rule. And then directions could be amended by the concerned authority at any moment. Usually, power given is to compulsory retire an employee in "public interest" but in Izhar, even the words "public interest" were not there in the relevant rule and so the power became absolute, subject to no restrictions or limitations, and so it fell foul of Art. 14. The Patna High Court has invalidated a statutory provision authorising the State Government to pass any order in a matter pending before any official engaged in the administration of the Bihar and Orissa Co-operative Societies Act, 1935. The Court observed that "the blanket power in the nakedness of authority" conferred by this provision "authorises the Minister to call for any matter under the sun in the co-operative field and decide it as he deems fit." "The statutory and legal effect of the provision, therefore, is that it amounts to an arrogation of all the powers in the statute in the executive fiat of the State Government ..."32 It should be noted that the provision was declared invalid as it conferred too broad discretion on the State Government without prescribing any criterion, guideline or principle guiding the exercise of the power. Also, the government could interfere with administrative matters but also with matters of a quasi-judicial nature which had been entrusted to other functionaries under the Act. In State of Maharashtra v. Kamal ,33 the Vacant Lands Act was held void under Art. 14 on the ground that the Act provided no safeguard against arbitrary exercise of the discretion conferred on the competent authority to declare land as vacant land. No procedure was prescribed for the purpose for the competent authority to follow. (b) Provisions held Valid Reference may now be made to a few cases where broad discretionary powers have been judicially upheld. S. 15 of the U.P. Sugarcane Act, 1953, gave to the Cane Commissioner, after consulting the factory and cane growers' cooperative societies, power to reserve any area and assign any area for the purpose of supply of cane to a factory. An appeal against such an order lay to the government. A rule framed under the Act laid down the factors which the Commissioner had to take into consideration while passing his order. In Tika Ramji v. State of Uttar Pradesh ,34 the Supreme Court held the power given to the Commissioner as not invalid as it was well defined and contained safeguards against its exercise in a discriminatory manner. S. 167(8) of the Sea Customs Act, 1878, was challenged on the ground that it left to the uncontrolled discretion of the customs authorities to decide the amount of penalty to be imposed. The Supreme Court upheld the provision by giving it a restrictive interpretation so as to limit the maximum penalty to Rs. 1000. The Court also pointed out that the discretion was vested in high customs officials, the proceedings to levy penalty were quasi-judicial in nature and appeals lay from their Orders.35 In Naraindas,36 a statutory power to select and prescribe text-books for schools was challenged under Article 14 as being arbitrary. The Supreme Court, however, held that the impugned provision did not suffer from any

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such 'lethal infirmity' because the purpose or object for which the power to select text-books was vested in the government was to ensure uniformity of standard and excellence of instruction which could be achieved only if standardised text-books of high quality and merit were used in schools. This object or purpose furnished guidance to the government in exercising its power which was thus not unguided and unfettered. A perusal of the Act in question would, however, show that the so-called object or purpose discovered by the Court was nowhere stated therein, and it was thus a rationalisation made by the Court itself to uphold the impugned power. Under the Slum Areas (Improvement & Clearance) Act, 1956, the competent authority could refuse permission to execute a court decree for eviction of a tenant from a building in a slum area. This was a drastic power to interfere with judicial process given to an executive officer. The provision was challenged under Art. 14 as conferring arbitrary power on the competent authority without giving any guidance. But in Jyoti Pershad v. Union Territory of Delhi ,37 the Supreme Court upheld the provision saying that from the preamble to the Act and its other provisions, enough guidance was available to the competent authority in the matter of exercise of his discretion. S. Section 4 of the Bihar State Universities Act, 1962, provided that every appointment, dismissal, removal of any college teacher made during a certain period would be subject to such order as the Chancellor 'may' pass on the recommendation of the University Service Commission. The provision appeared to give literally unanalysed powers to the Chancellor to do what he liked with respect to the said appointments, etc. But the Court 'read down' the provision and held it valid by holding that the Chancellor did not have arbitrary power. His authority was only to satisfy himself that the said appointments etc., were in accordance with the relevant University Act both as to substantive and procedural aspects thereof. Before passing any order, he received recommendation from the University Service Commission and he was also bound to give a hearing to the concerned person. This was not therefore a case of uncanalised power.38 A statutory provision empowered the Commissioner to make an inquiry into the allegations against a mahant, and order his removal if the charges were established. The provision was held valid on the ground that the requirement of quasi-judicial procedure excluded any possibility of abuse of administrative discretion.39 A land tax law was challenged on the ground that it left the power to determine land value to the subjective satisfaction of the tax commissioner. The Supreme Court rejected the argument saying that the proceedings were quasi-judicial, an appeal lay against the commissioner' s decision to a tribunal and he had to reach his decision about the land value objectively on materials produced before him.40 An Orissa Act authorising the State Government to take over any estate from any zamindar was upheld against the challenge that it conferred on the State Government an unfettered discretion without any procedural safeguard to take over any estate. According to the preamble to the statute, it was passed in pursuance of the Directive Principles of State Policy41 to secure economic justice to all. The Supreme Court took the view that there was a clear enunciation of the policy in the Act and, accordingly, the discretion vested in the government was not absolute as it had to be exercised in the light of this policy. Sooner or later all estates in the State must be abolished but since all estates could not be taken over at once, in the very nature of things, it was necessary to give "a certain amount of discretionary latitude to the State Government."42 Again, the power of an assistant collector of customs under S. Section 105 of the Customs Act to order search of the premises of a person if he had reason to believe that the person had in his possession goods liable to be confiscated was upheld as he was required to send forthwith a copy of any record made by him to the collector, and he could be prosecuted if he took action without "having reason to believe".43S. 132 of the Income Tax Act, 1961, which provides for search and seizure has been upheld with reference to Art. 14.44 In Maneka Gandhi v. Union of India ,45 was challenged S. 10(3)(c) of the Passport Act, 1967, authorising the Central Government inter alia to impound a passport of a person "in the interests of the general public," under Art. 14. There was no provision for appeal against the order of the government and it was argued that the expression "in the interests of the general public" was vague. and undefined, and the power conferred by this provision was excessive and suffered from the vice of "over-breadth". But the Supreme Court upheld the provision by reading the requirement of natural justice into it; also the words in question could not be characterised as vague and undefined as these very words were to be found in Art. 19(5).46 These words provide sufficient guidelines to the passport authority and his power cannot therefore

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be regarded as unguided and unfettered. Then, there are several procedural safeguards to be found, e.g., the reasons for impounding the passport are to be recorded in writing; a copy of the reasons is to be given to the affected person save in certain exceptional circumstances; the power is vested in a high authority and, according to the Court when "power is vested in a high authority like the Central Government, abuse of power cannot be legally assumed." Also, there exists a provision for appeal from the Passport Authority to the Government. A law authorised the competent authority to declare an area as a slum area, to declare houses unfit for human habitation, and declare a slum area as a clearance area. These provisions were challenged under Art. 14 on the ground that they did not provide for a reasonable opportunity to the affected parties to be heard. The considerations which the authority had to keep in mind in exercising its powers were laid down. The Supreme Court stated in State of Mysore v. Bhat 47 that the authority was bound to follow natural justice. The Court thus implied natural justice and held the provisions in question valid. Power to levy special assessment of land revenue on conversion of agricultural land to non-agricultural purposes vested in the State revenue officials was invalidated by the High Court on the ground that the power was unguided and uncontrolled. But, on appeal, the Supreme Court, reversing the High Court upheld the provision pointing out that the discretion of the officials was limited by the floor and ceiling fixed for the assessment and also that the assessment order was appealable. The Court also said that in case of a taxing-statute, the courts allowed a "wide area of picking and choosing and the slab system.48 An important case in this area is Organo Chemical Industries v. Union of India .49 S. 14-B of the Employees' Provident Funds Act, 1952, provides that where an employer makes default in the payment of any contribution to the fund, the Central Provident Fund Commissioner may recover from the employer such damages, not exceeding the amount of arrears 'as he may think fit' to impose. Before imposing damages, the employer is to be given a reasonable opportunity of being heard. The broad power given to the Commissioner to inflict any quantum of damages as he likes was challenged under Art. 14 on the ground that it vests naked and arbitrary power. It was argued that the Commissioner is not obligated to give reasons for his decision, and no provision exists for any appellate or revisional review over his decision. The petitioners in the instant case had been subjected to damage equal to the amount of arrears. The Court however upheld the provision saying that the law is social in nature and beneficial to the labour. The Court adopted the following formal arguments to uphold the Commissioner' s broad power to impose damages : the power is conferred on a high official, the power is to be exercised according to natural justice and, as such, he is bound to make a speaking order;50 the order is subject to Art. 226 so that "perversity, illiteracy, extraneous influence, mala fides and blatant infirmities straight away get caught and corrected."51 The Court was not impressed with the argument that S. 14-B does not contain any guidelines. The Court argued that the Commissioner cannot award more than 100 per cent of the amount defaulted as damages and he was a "high official". In awarding damages, he "usually takes into consideration ... various factors, viz., the number of defaults, the period of delay, the frequency of defaults and the amounts involved." An interesting argument advanced by the Court was that under the impugned provision only 'damages' could be awarded and the term 'damages' has implications and limitations sufficient to serve as guidelines in fixing the impost.52 The commissioner cannot award anything more than, or unrelated to, 'damages'. The power conferred "is delimited by the content and contour of the concept itself and if the Court finds the Commissioner travelling beyond, the blow will fall." The Court also refused to accept the argument that the lack of any appellate forum from the Commissioner could be regarded as a procedural lacuna. All said and done, there is no doubt that the Court upheld broad discretion vested in the Commissioner who has a very extensive range of choice, viz., for imposing damages from 0% to 100% of the arrears, without any substantive limitation. In some cases, the courts have upheld broad discretionary powers even when there were no guidelines laid down for exercising the power, or when there were no procedural safeguards. A service rule made by the Indian Airlines Corporation prohibited an employee having a wife living from contracting another marriage without the previous permission of the general manager. This was to be so even though the personal law of the concerned party permitted him to contract such marriage. A female employee was also prohibited from contracting a marriage with a person having a wife without the permission of the general manager. The rule was challenged on the ground that no guidelines were to be found for granting permission. But the Court held the rule valid saying that the purpose of the rule was to enforce monogamy even when the personal law

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permitted polygamy. The guidelines for permitting second marriage were implicit; they were deducible from the purpose underlying the rule; there was no need for separate guidelines to uphold the validity of the rule. The only justification for the court decision may be that the rule promoted a very desirable social purpose, otherwise the discretion conferred on the general manager is undoubtedly too broad and ordinarily it would have fallen foul of Art. 14.53 S. 10(1) of the Industrial Disputes Act, 1947, empowers the government to refer an industrial dispute to a board for settlement, or a court of enquiry or a tribunal for adjudication. The provision was challenged on the ground that it gave arbitrary power to the government to discriminate between parties similarly situated. Rejecting the contention, the Court argued : "No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same. There cannot be any classification and the reference to one or the other authorities has necessarily got to be determined in the exercise of the best discretion ..."54 The general objectives of the statute were held to be sufficient in controlling the power of the government. S. 5(1) of the Indian Telegraph Act runs as follows : "On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or State Government ... may, if satisfied that it is necessary or expedient so to do, take temporary possession ... of any telegraph established, maintained or worked by any person licensed under this Act."

The Supreme Court has ruled in Hukam Chand v. Union of India 55 that S. 5(1), if properly construed, does not confer unguided and unbridled power on the government to take possession of any telegraph. Firstly, the occurrence of a 'public emergency' is the sine qua non for the exercise of the power. As a preliminary step to the exercise of further jurisdiction under S. 5(1), the government must record its satisfaction as to the existence of such an emergency. Further, the emergency which is a prerequisite for the exercise of power, must be a 'public emergency' and not any other kind of emergency. A public emergency in the context is one which raises problems concerning the interest of public safety, the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order or the prevention of incitement to the commission of an offence. "Economic emergency" is not one which amounts to a 'public emergency' and justifies action under S. 5(1) unless it raises problems relating to the matters indicated above. Obviously it means that the government cannot take possession of a telephone to prevent the person concerned from indulging in speculative activities. The Kerala Education Bill gave broad powers of control to the Kerala Government over private schools in the State, e.g., power to recognise newly established schools; power to take over any category of schools in any specified area through a notification, etc. These provisions were challenged as being discriminatory on the ground that they were capable of being exercised "with an evil eye and unequal hand." The Supreme Court held that the clauses of the bill had to be interpreted and read in the light of the general policy deducible from the preamble, viz., to provide for better development of education in the State, and the title of the Bill.56 Further, the general policy in the preamble was reinforced by more definite statements of policy in different clauses for exercising the power of recognition. The Government was to exercise the power to implement that policy. But it is difficult to justify the Court on this point as the policy contained in the different clauses was for providing facilities for general education, special education, and for the training of teachers which was nothing more than broad educational policy. This case again indicates that the judiciary may regard broad and general statement of policy as sufficient compliance with Art. 14. In case of taking over of schools, besides the general policy mentioned in the Bill, there was the further safeguard that the notification for taking over schools in an area could be issued only after a proposal was supported by a resolution of the Legislative Assembly, and there was, therefore, no difficulty in upholding this provision. Reference has been made to S. 269 UD,Income-tax Act, later in this Chapter. This section enables the income-tax authorities to compulsorily purchase property of a person in certain circumstances. The provision was challenged as conferring an unfettered discretion on the concerned authorities. But in Gautam,57 the Supreme Court rejected the argument saying that the discretion conferred by S. 269 UD is hedged by several restrictions, e.g. (1) the power of compulsory purchase of property is to be exercised only when in an

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agreement to sell the property in an urban area, there is undervaluation of 15% or more;58 (2) the order of compulsory purchase is to be supported by reasons in writing; (3) these reasons must be germane to the underlying purpose of the provision, namely, to counter attempts to evade income-tax; (4) the affected parties have a right to be heard.59 S. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act provided that "the government may, subject to such condition as they may deem fit, by notification, exempt any building or class of buildings from all or any of the provisions" of the Act. In P. J. Irani v. State of Madras , the validity of this provision was challenged vis-a-vis Art. 14, but the Supreme Court upheld the same on the ground that the discretion conferred on the government was not uncontrolled. The preamble to the Act laid down the purposes for which the Act was enacted. The preamble thus laid down the purpose and the policy of the Act which furnished adequate guidance for the exercise of the power of exemption.60 Again, in S. Kandaswary Chettiar v. State of Tamil Nadu ,61 it was contended inter alia that S. 29 was unconstitutional as it suffered from the vice of excessive delegation of discretionary power as no guidelines were provided for the exercise of the power of exemption. Rejecting the contention, the Supreme Court found sufficient guidance in the aims of the legislation and its provisions for the exercise of the power. S. Section 241 of the Punjab Municipal Act, 1911, authorises the State Government to declare an area as a 'notified area'. S. 244 authorises the government to cancel any such notification. The constitutional validity of S. 244 was challenged on the ground that the provision has no guidelines for the exercise of the power conferred by it. While accepting that S. 244 "does not in express terms spell out the circumstances in which a notification issued under S. 241... may be cancelled," nevertheless, the Supreme Court upheld its validity.62 The Court said "The situations, in which a cancellation or modification of a notification under S. 241. may be called for, will be numerous and impossible to be spelt out in a statutory provision."63 The Court said further that Ss. 241 to 244 form a "compact group" of sections, and this makes it clear that the power of cancellation is not an "arbitrary and unguided" one. The validity of Rule 12 of Punjab State Assistant Grade Examination Rules, 1984 was challenged on the ground that discretionary power granted by it was unbridled and unguided. The Supreme Court held that the Rule 12 which authorised the Government to exempt any class or category of persons from applicability of Rules was not without any guidelines or unbridled as there was an in-built check in the rule itself, as before exercising the power certain conditions had to be fulfilled, viz., (a) State must form its opinion; (b) it had to pass an order in writing; and (c) it must record its reasons in writing.64 S. 3(3) of the Government of Union Territories Act, 1963, provides that the Central Government may nominate not more than three persons not being government servants to be members of the Legislative Assembly of a Union Territory. The provision was challenged as conferring an arbitrary power on the government as it contained no guidelines as to how the power was to be exercised; the government was free to nominate or not, or nominate one, two or three persons. The provision does not say in what cases or circumstances may the Government make a nomination or from which classes of persons the nomination should be made. It was therefore argued that the provision contained seeds of arbitrariness. The Bombay High Court in Manohar v. Union of India 65 rejected the argument ruling that though the "field of discretion was large", "some guidelines" have actually been provided for, e.g., qualifications for membership of the Legislative Assembly are laid down in the Act; government servants cannot be nominated. As the problems of different territories are different, the needs of elasticity and of administrative experimentation exist and, therefore, conferment of a large discretion on the Central Government cannot be regarded as arbitrary so as to be hit by Art. 14. In Pannalal Binjraj v. Union of India ,66 "administrative convenience" was regarded as a sufficient criterion for the exercise of administrative power. The income tax statute, after providing that a person is to be assessed either at the place of business or residence, authorise the tax authorities to transfer a case from one place to another. It was contended by the assessee, whose case was transferred from Calcutta to Delhi, that the provision in question vested naked, arbitrary, and unguided power to transfer a case while others similarly situated could continue to be assessed at the place of their business or residence; it prescribed no hearing or recording of reasons. The Supreme Court upheld the provision saying that it was enacted for "administrative convenience" and "convenient and efficient assessment" of income tax and, therefore, the power to transfer an assessment case from one place to another was not naked but was guided and

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controlled by the purpose which was to be achieved by the Act itself. As a comment on this ruling it may be said that "administrative convenience" could hardly be regarded as a definite policy to control administrative discretion. In effect, the provision in question leaves without any control the power in the hands of the Administration to transfer a case from one place to another and thus discriminates against the assessee concerned by putting him to a lot of inconvenience.67 The case may be characterised as an extreme example of judicial deference to administrative convenience.68 Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960, provides that if the Central Government is satisfied that the operation of any rule under the All India Services Act, 1951 causes undue hardship in any particular case, it may dispense with or relax the requirements of that rule "to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner." In R.R. Verma v. Union of India 69 the Supreme Court rejected the contention that the provision vested absolute and arbitrary discretion in the government with no prescribed objective standards or guidelines. While the rule was couched "in a language suggestive of near autocratic power," the Court entertained no doubt that the rule was not meant to empower the Central Government to pass any order it liked with a view to promote the interests of a favoured civil servant. The rule "is really meant to relax, in appropriate cases, the relentless rigour of a mechanical application of the rules, so that civil servants may not be subjected to undue and undeserved hardship". "Sufficient guidance can be had from the very rule and from the scheme of various statutory provisions dealing with the conditions of service of the members of the All India Service."70 The government is bound to exercise the power in public interest to ensure efficiency and integrity of civil servants. "When, and only when, undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but, again, only to the extent necessary for so dealing with the case." The court went on to assert that "the exercise of the power of relaxation like all other administrative action affecting rights of the parties is subject to judicial review on grounds now well known."71 Viewed in this light, the court did not think that Rule 3 was unconstitutional on the ground of vesting an unfettered discretion in the government. Selections were made for promotion to Indian Administrative Service from the Punjab State Civil Service. Under the relevant regulations, the selection, committee was required to classify the eligible officers as 'outstanding', 'very good', 'good' or 'unfit' on an "overall relative assessment of their service record." The merit and suitability were the governing considerations and seniority played only a subsidiary role. The regulations did not lay down any requirement to record reasons when a senior officer was superseded. In R.S. Dass v. State of India ,72 the validity of the selections made for the purpose was impugned. The question raised was : Was the conferment of such a broad discretion to the selection committee valid vis-a-vis Art. 14? The Supreme Court ruled in favour of the validity of the selections. Under the regulations, the selection committee consisted of high officials in the State Service under the chairmanship of the Chairman or a member of the Public Service Commission. The list prepared by the selection committee was forwarded to the Union Public Service Commission along with the records of the candidates. The Commission was authorised to make such changes in the List as it thought to be just and proper. The list as finally approved by the Commission was the final list of the promotees from the State Service to the IAS. In a number of cases mentioned above73 while justifying the conferment of a broad discretionary power on the Administration, the Court has taken recourse to the argument that the power in question has been conferred on a high ranking official who is not likely to abuse the same.74 In Radhakrishnan,75 the Court stated the proposition thus :76 When power is conferred on high and responsible officers they are expected to act with caution and impartiality while discharging their duties... The vesting of discretionary power in the State or public authorities or an officer of high standing is treated as a guarantee that the power will be used fairly and with a sense of responsibility.

In Sukhwinder,77 the Supreme Court observed : This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused.

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Again, in Accountant-General v. Doraiswamy ,78 broad power conferred on the Comptroller and Auditor-General in respect of fixation of seniority among the staff members was held to be valid because being a high-ranking constitutional authority, he was expected to act without arbitrariness and according to the needs of the service. He is the constitutional head of one of the most important departments of the state and is expected to know what the department requires and how best to fulfil those requirements.79 In a number of cases, large discretionary powers conferred on the government without any built-in safeguards or guidelines, have been upheld as valid on the ground that the government can be expected to exercise its powers with extreme caution and care.80 In All India State Bank Officers' Federation v. UOI ,81 the Supreme Court held that, the Bank, being a business organisation, must identify the best available talent in the organisation for holding challenging assignments in the top executive grades and hence there is nothing wrong if the Bank devised a policy defining the eligibility norms for promotion to such grades on a realistic basis and devised a system to choose best available talents to man the critical positions. Making changes in the promotion policy with this objective in view was held to be not arbitrary. The State of Kerala, classified the contract carriages into inter-state and intra-state for granting exemption /reduction of tax under Section 22 of the Kerala Motor Vehicle Taxation Act, 1976 which was held to be valid by the Supreme Court as the discretion was exercised in public interest.82 Similarly in common cause, A Registered Society v. U.O.I. ,83 the Apex Court held that availability of discretionary quota to Ministers was not per se bad as it was based on public policy. However, the same should not be exercised arbitrarily. These cases represent the classic tradition of judicial non-interference with administrative discretion. It is a very tenuous proposition that high officials discharge their functions fairly and that there is no abuse of power by them. There is really no factual basis for such an assumption. The fact of the matter is that even when power is conferred by law on the government or a minister, in practice, it is exercised by bureaucrats.84 It is a myth to say that power vested in high officials is not apt to be misused. There are many cases on record where the Supreme Court itself has found some fault, abuse or maladministration in the exercise of power by high officials, or even by the Central or the State Government, and has, consequently, quashed the order.85 There is really no guarantee that merely because power is vested in the Central Government-the highest executive body in India--it will always be used properly, and that no excessive use thereof will ever be made. Reference may be made in this connection to D. P. Gupta v. Union of India 86 where an employee of the Central Government was kept in suspension for 11 years, and a departmental inquiry against him was kept alive for 20 years. Commenting on this state of affairs, the Supreme Court was constrained to observe " . . there is no presumption that the Government always act in a manner which is just and fair." Of all the arguments used by the courts to uphold broad delegations of discretionary power against attack under Art. 14, on the ground of excessive delegation, the least satisfactory argument is that a "high powered" body can be trusted with large powers. Such an argument also introduces class distinction in law. In fact, the Supreme Court has itself warned at times that "wide discretion is fraught with tyrannical potential even in high personages, absent legal norms and institutional checks."87 Uncontrolled power is apt to be misused, for 'absolute power corrupt absolutely.' This is human nature and afflicts every human being whether high or low in status. Power is apt to be misused or not properly used both by, a high or low officer, and it is on that basis that the modern Administrative Law insists on proper control mechanism on exercise of administrative discretion. Therefore, the sooner the courts discard the argument validating broad discretion on the basis of high rank of the donee of the power the better it is for the proper growth of Administrative Law in India. What is being suggested here is that the validity of a provision conferring discretionary power ought to be adjudged without adverting to the criteria of the status of the donee of the power. Conferral of unregulated power on an official whether low or high in status ought to be invalidated The crux of the matter is that if the proposition that " Art. 14 does not sanction conferment of arbitrary power" is to have any real meaning, then the courts have to insist on the legislature laying down proper substantive standards and procedural safeguards in the law itself which confer, discretionary power irrespective of the argument based on the 'status' of the recipient of the power. There have been some judicial voices raised against the proposition mentioned above. For example, in Jaswant Singh v. Sub-Divisional Officer ,88 the Patna High Court said that arbitrary and discretionary power with no guidelines is not valid even though conferred on a high authority like the State Government. This is only one of the many criteria to judge the constitutionality of a statute. Recently, in D. T. C.,89 Sabyasachi Mukharji, C.J., has said, "The fact that the power so entrusted

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with a high ranking authority or body is not always a safe or sound insurance against misuse. At least, it does not always ensure against erosion of credibility in the exercise of the power in particular contingency."90 Sawant. J., observed in the same case, referring to the 'high authority' theory : "Beyond the self-deluding and self-asserting righteous presumption, there is nothing to support it."91 Is it the demand of Art. 14 that when discretionary power is conferred on an authority, there must be a provision for a corrective machinery by way of appeal or revision to a superior authority to rectify an adverse order passed by the lower authority? One can of course argue that if Art. 14 seeks to outlaw unregulated discretions, then in the very nature of things, there ought to be an appellate forum to review the discretionary decisions of the lower authority. Otherwise, the lower body would become practically free to act as it wishes in the absence of any supervision from above, and that this would negate the very philosophy underlying Art. 14. But it seems that the Supreme Court has not adopted a rigid stand on this question. From the cases mentioned above, it appears that the Supreme Court has not adopted a uniform policy on this crucial matter. One could discern the following three stands of judicial approach to this matter : (1)

(2) (3)

In some cases, lack of an appellate authority has been cited as a lacuna so as to make the power unguided and hence bad under Art. 14.92 In Dwarka Prasad,93 for example, the Court insisted that the requirement to record reasons is not an effective safeguard in itself without there being a higher authority to examine the propriety of these reasons and revise and review the decision of the decision-maker. In some cases, the existence of an appellate forum has been cited as an element to show that the power is not unqualified and so not had vis-a-vis Art. 14.94 In other cases, the Court has just ignored the fact of lack of an appellate body, or regarded it as a matter of no moment, for purposes of evaluation whether the power in question is regulated or unregulated.95 The Court has taken other features of the power into account to determine this question.

The Supreme Court has now considered this very question directly in Babubhai & Co. v. State of Gujarat ,96 and answered the question in the negative. The Court has observed that absence of such a machinery may indicate that the power so conferred is unreasonable or arbitrary but providing such a machinery is only one of the several ways in which the power could be checked or controlled and its absence is one of the factors to be considered along with several others before coming to the conclusion that the power so conferred is unreasonable or arbitrary; mere absence of a corrective machinery by way of appeal or revision by itself would not make the power unreasonable or arbitrary. Some of the factors to be considered in this connection are mentioned by the Court as follows : on whom the power is conferred--whether on a high official or a petty officer; what is the nature of the power--whether its exercise depends on subjective satisfaction of the authority on whom it is conferred, or is it to be exercised objectively by reference to some existing facts or tests; whether or not it is a quasi-judicial power requiring the authority to observe principles of natural justice and make a speaking order? The last factor ensured application of mind by the authority only to pertinent or germane material on the record excluding extraneous and irrelevant material and also subjects the order of the authority to judicial review under the writ jurisdiction on such grounds as perversity, extraneous influence, mala fides and other blatant infirmities. The Court has observed on this connection : Moreover all these factors will have to be considered in the light of the scheme of the enactment and the purpose intended to be achieved by the concerned provision. If on an examination of the scheme of the enactment as also the purpose of the concerned provision it is found that the power to decide or do a particular thing is conferred on a very minor or petty officer, that the exercise thereof by him depends on his subjective satisfaction, that he is expected to exercise the power administratively without any obligation to make a speaking order then, of course, the absence of a corrective machinery will render the provision conferring such absolute and unfettered power invalid. But it is the cumulative effect of all these factors that will render the provision unreasonable or arbitrary and liable to be struck down.

In the instant case, S. 54 of the Bombay Town Planning Act, 1954 vesting power in the Municipal Corporation to summarily evict persons in occupation of land required for implementing the final town planning scheme was held valid on the following grounds : (i) the power is vested in the local authority which is a highly responsible body; (ii) the power is required to be exercised in an objective manner (viz. by

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reference to the final scheme); (iii) power conferred is quasi-judicial and so the orders of eviction are to be passed after hearing the parties and through a speaking order which implies giving of reasons and which also ensures application of mind to only germane or relevant material on record eschewing extraneous or irrelevant material; (iv) any order of summary eviction based on any extraneous, non-germane irrelevant or mala fide considerations would be subject to the writ jurisdiction. Having regard to these aspects, mere absence of a corrective machinery by way of appeal or review would not render the provision invalid. The truth however is that in a discretionary decision, it is a very salutary safeguard that there be at least one appeal to a higher body (preferably a tribunal rather than an administrative body) on merits from the administrative body which takes the first decision. In the absence of such an arrangement, the substantive and procedural safeguards laid down in the law become less meaningful. As will be seen later,1 the present-day judicial control over discretionary decisions is rather weak and does not go to the substance of the matter but mostly concerns itself with peripheral matters. In any case, the courts do not review a discretionary decision on merits.2 Therefore, having an appellate body to review the merits of discretionary decision taken by an authority is a great desideratum to avoid injustice. With this in view, for example, in Australia, the Administrative Appeals Tribunal has been established to review discretionary decisions on merits.3 In some of the above-mentioned cases,4 the Supreme Court has warded off challenge under Art. 14 to the discretionary power conferred by a statutory provision by pleading that, in any case, judicial review under Art. 226 would be available. This is a tenuous argument for several reasons. One, as will be seen later, writ jurisdiction under Art. 226 is not adequate; its efficacy is only peripheral as it does not go to the merits of a discretionary decision and the Court does not concern itself with the question whether the decision in question is good or bad or right or wrong or based on sufficient or insufficient grounds.5 Two, judicial review under Art. 226 is uniformly available in all cases. If a broad discretionary power is held valid vis-a-vis Art. 14 in one case by invoking availability of judicial review under Art. 226, there is no reason why the same cannot be held in other cases. If the argument of judicial review being available under Art. 226 is pressed to its logical conclusion, then the doctrine of excessive delegation of discretionary power -will be effectively annihilated.6 Three, the efficacy of judicial review under Art. 226 is enhanced if discretionary power is subjected to some standards or procedural safeguards. It is therefore advisable to keep Art. 226 out of the reckoning while considering whether a discretionary power is excessive or not with reference to Art. 14. It may be observed in the end, that the doctrine of excessive delegation, if applied properly, can serve a very useful function, viz., to make the legislature lay adequate procedural safeguards and substantive standards in the law itself subject to which discretionary power may be conferred. But, in practice, as will be clear from the above discussion, the courts often soft-pedal the doctrine and adopt an indulgent, rather than a critical, attitude and uphold vast discretionary powers, at times on the basis of somewhat tenuous arguments. It is suggested that the correct judicial attitude is displayed by the Supreme Court in the Air India cases.7 The Clause 16 of the guidelines entitled the Railways to reject any tender offer without assigning any reasons and gave it power to accept or not to accept the lowest offer. The Supreme Court refrained from disputing this power as the said power was to be exercised within the realm of the object for which the said clause was incorporated. The power could only be exercised on the existence of certain conditions which in the opinion of the Railway Board, exercising the power, were not in the interest of the Railways to accept the offer.8 (c) Special Courts In several cases, the validity of laws creating special courts to deal with problems of law and order has been questioned. Such a court functions according to a procedure which is less formal, and hence less favourable to the accused, than the ordinary criminal procedure. In State of West Bengal v. Anwar Ali Sarkar ,9 was involved a law enacted by the West Bengal Legislature permitting setting up of special courts for "the speedier trial" of such 'offences' or 'cases' or 'classes of cases' as the state government might direct by a general or special order. These courts were to follow a procedure less advantageous to the accused in defending himself than the normal criminal procedure followed by ordinary criminal courts. The Act was held

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invalid as it made no reasonable classification; it laid down "no yardstick or measure for the grouping either of persons or of cases or of offences" triable by special courts so as to distinguish them from others outside the purview of the Act. The government was given the power to pick out a case of a person and hand it over to the special tribunal while leaving the case of another person similarly situated to be tried under the ordinary criminal procedure. Vesting of such an "uncontrolled authority" in the Executive "to discriminate" was not justified. The necessity of "speedier trial" was held to be too vague, uncertain and indefinite criterion to form the basis of a valid and reasonable classification. In later cases, however, the courts somewhat relented and felt satisfied with vague and inarticulate policy statements which could in no way be effective to control and regulate executive discretion to discriminate. For example, in Kathi Raning v. State of Saurashtra, 10 a provision practically similar and parallel to the one involved in the Anwar Ali case was held valid because the Court found that the policy was stated in the preamble to the Act, which was to provide for security of the state, maintenance of public order and maintenance of supplies and services essential to the community, and that the government was expected to select such offences, classes of cases for trial in special courts as were calculated to affect matters mentioned in the preamble. Comparing the above two cases, it would appear that the main difference in the terms of the statutes, which resulted in different judicial verdicts as to their validity in Anwar Ali and Kathi Raning, was that the preamble to the Saurashtra Act was more elaborately worded than the one to the Bengal Act. While the term "speedier trial" used in the Bengal Act to set up special courts was held to be indefinite, the various matters mentioned in the preamble to the Saurashtra Act were held to give more definite guiding principle to control administrative discretion. In essence, the difference appears to be more of a drafting and semantic nature rather than that of substance. It is doubtful whether the general statement of policy in the law, and that too in the preamble, could in any way be effective to control executive action. One difference of substance between the two cases, however, was that whereas in the West Bengal case the statute authorised the state government to pick out any individual case for trial by a special court, in the Saurashtra case the government could specify only a class of offences or cases for the purpose, and not an individual offence or case. The principle laid down in the above cases, viz., that "if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory," has been reiterated and applied in several other cases pertaining to special courts, though the result reached by the courts may not always appear to be quite satisfactory. Thus, in Kedar Nath v. State of West Bengal ,11 the law setting up special courts mentioned the offences triable by them but gave a discretion to the government to allot individual cases for trial to these courts. Under the statute, any particular case could be allotted to, or withdrawn from, a special court. It was argued that the provision vesting an unfettered discretion in the government to do so was discriminatory and, therefore, void under Art. 14.12 The Supreme Court rejected the argument. It stated : "There may be endless variations from cases in the fact and circumstances of the same type of offence, and in many of those cases there may be nothing that justifies or calls for the application of the provisions of the special Act."13 In the opinion of the court, it was necessary to give power to some competent authority (here the government) to make a selection of cases being dealt with by the special Act. The Kedar Nath case goes beyond the Saurashtra case mentioned above, but a subtle difference between the situation in the two cases may be noted : whereas the Saurashtra law made no classification of offences itself and left the whole matter to the executive subject to the policy statement, the law in the Kedar Nath case itself made the classification of offences for trial by special courts, and power to refer specific cases was conferred on the executive subject to this classification. Nevertheless, by its holding in the Kedar Nath case the Court did dilute to some extent the principle evolved by it in the Saurashtra case. In August, 1978, the President made a reference to the Supreme Court under Art. 143(1) of the Constitution seeking the Supreme Court' s opinion on the constitutional validity of the Special Courts Bill proposing to set up special courts for speedy trial of offences committed by the holders of high public and political offices during the emergency of 1975-77. The proposed court was to be presided over by a sitting or retired High Court Judge to be appointed by the Central Government is consultation with the Chief Justice of India. The accused could appeal to the Supreme Court against the verdict of the special court. The case was to be referred for trial to the special court by the Central Government if it was of the opinion that there was prima facie evidence of the commission of the offence alleged to have been committed during the emergency

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period by a person holding high public or political office and that in accordance with the guidelines contained in the Preamble hereto the said offence ought to be dealt with under the Act. The Court found the classification provided by the Bill as valid as "the promulgation of emergency is not and cannot be a matter of normal occurrence in a nation' s life" and "offences alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilised the high public or political offices by them as a cover or opportunity. The Government' s power to refer a case for trial was also upheld as it was not unregulated. Further, if the Government formed the requisite opinion as stated in the preamble, it was obliged to refer the case without exception, in which the opinion was formed.14 When the Bill was being debated in Parliament, reference to the emergency was dropped and it was made into a permanent statute for trial of offences whenever committed by persons holding high public or political offices. Again, the Supreme Court upheld the Special Courts Act, 1979 providing for setting up of special courts for speedier trial of persons holding high public or political offices on charges of misuse of power by them.15 The preamble sated that if there was prima facie evidence against such persons, it was imperative for the functioning of parliamentary democracy that these offences be tried speedily. S. 5(1) of the Act provided that if the Central Government was of the opinion that there was a prima facie case of the commission of an offence by a person who held high public or political office in India and that "in accordance with the guidelines contained in the preamble" to the Act the said offence ought to be dealt with under the Act, the Central Government "shall make a declaration to that effect." The purpose underlying the Act was to deal with cases of misuse of powers by high ranking office holders through a quickened trial. The Supreme Court ruled16 that this provision was not hit by Art. 14 as it did not confer "absolute, naked and arbitrary" power because : (i) the government had to exercise discretion in accordance with the guidelines contained in the preamble (which laid down a number of clear guidelines and provided sufficient safeguards against any abuse of power); (ii) there had to be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence; (iii) the power had been conferred on a very high authority and, therefore, it must be presumed that the power was not likely to be abused and that the government would act in accordance with law and in a bona fide manner; (iv) The expression "high public or political office" was not vague; it bore a clear connotation as it meant persons holding top positions wielding large powers; (v) The preamble clearly laid down that the government would make the 'declaration' only after the commission of an offence had been disclosed after an inquiry. It may also be noted that under the Act in question only a sitting High Court judge, designated by the Chief Justice, was to hold the special court to try the offence in question. The Court also ruled that no hearing was required to be given to the accused before making a declaration because at that stage there was "no lis pending nor any prosecution been launched against the accused." Unless government' s decision to prosecute was notified, the prosecution would not start.17 The Orissa Legislature passed an Act providing for trial by special courts of persons holding high political and public offices for corruption. A special feature of the Act was the provision for confiscation of property amassed by such persons through corrupt means. In Kishore Chandra Patel v. State ,18 Orissa High Court upheld the validity of the Act against an attack under Arts. 14 and 21 of the Constitution subject to some modifications being made in some of the provisions of the Act. However, a few provisions were invalidated. For example, a provision which placed the onus on the concerned person to prove that the property was not acquired through corrupt means was invalidated as being in violation of Art. 21.19 (d) Two Procedures When an administrative authority has an option to proceed against a person under different provisions of the same Act, or of two different Acts, of which one lays down more onerous procedure than the other, e.g., in sales tax assessment proceedings,20 or disciplinary proceedings,21 then the question will arise whether the harsher law lays down the policy to regulate administrative choice to proceed under it. Discrimination is likely to arise if it is left to the sweet will of the authority to invoke the prejudicial law as and when it likes, because two persons similarly situated may be differently treated, as one may be proceeded against under the harsher law, and the other under the other (less harsh) law. To minimise the chance of administrative discrimination, the basis on which the harsher law is to be applied should be rational and have a reasonable

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nexus with the purpose sought to be achieved by the law. If the statute fails to do so, it may be held to be invalid under Art. 14. The principle was applied in many varied situations and in quite a few cases the more onerous law was held to be void as it did not give any guidance as to when it was to be applied and not the other law.22 Under the Punjab Public Premises Eviction Act, 1959, if the collector was of the opinion that any person was in unauthorised occupation of any public premises, he could pass an eviction order after giving him a show cause notice as to why the order of eviction should not be made. The collector, thus, had two remedies : (1) the more drastic one under the Act, in which the eviction depended on the mere satisfaction of an administrative officer; (2) an ordinary suit in a civil court for eviction under the Civil Procedure Code. No guiding principle or policy had been laid down in the Act for the collector to select one procedure in preference to the other in a particular case. Consequently, the Supreme Court following the established view, as mentioned above, held in Northern India Caterers that the harsher statutory provision manifestly violated Art. 14.23 A logical consequence of this ruling was to withdraw the softer law and leave only the harsher law in the field. Consequently, the Supreme Court reconsidered the question in M. Chhagganlal v. Greater Bombay Municipality 24 and it overruled Northern India Caterers. The Court felt that if two procedures were available--one harsher than the other--then it would inevitably lead to the result that the latter would be repealed and the former would become the general rule, thus none benefiting from such a course. The Court thus softened its attitude. An Act more or less on similar lines as the one invalidated in Northern India was now upheld because it laid down the purpose behind it, viz., speedy eviction of unauthorised occupants of government premises and this provided a sufficient guidance to the authorities in whom the power was vested. The Court held that it was fanciful or unrealistic to suppose that the officer concerned would resort to the dilatory court procedure in any case when he had the quick procedure at his disposal. The procedure in question provided for hearing of the affected person and he could be represented by a lawyer. The difference between the two procedures was not so unconscionable as to attract the vice of discrimination. The Court emphasised that Art. 14 did not demand a fanatical approach. The Chhagganlal case shows that the judicial attitude towards differential procedures has now become very tolerant.25 Under Ss. 38(1) and (3)(b)(iii) of the Banking Companies Act, 1949, the Reserve Bank of India is the sole judge to decide whether the affairs of a banking company are being conducted in such a way as to be prejudicial to the depositors' interest. If the Reserve Bank comes to this conclusion and makes an application to the court for winding up of the company, the High Court has no option but to pass the order. There is a different provision for winding up of a company under the Companies Act, 1956. The Banking Act was held not discriminatory as the Reserve Bank is an expert body to deal with banks and to control and supervise their functioning, and it acts not on suspicion but on proved facts. Different procedures need to be invoked to suit different situations and it cannot be said that the Reserve Bank would act arbitrarily from case to case. "The Reserve Bank, apart from its being a reasonable body, is answerable to the Central Government ..."26 Similarly, S. 187-A of the Sea Customs Act giving power to the customs authorities either to refer a case of import of prohibited goods to a magistrate or themselves to confiscate the same and impose fine, had been upheld on the ground that the power has been conferred on the chief customs officer or other senior officers and there is sufficient guidance in the objects and purposes of the Act for exercising the power.27 For recovering any sum due to it the normal procedure for the state financial corporation is to file a suit in the court. A statutory provision provided, in addition, a quick remedy of recovering any sum due to the corporation as arrears of land revenue. The provision was challenged under Art. 14 on the ground that it provided no guidelines as to when this procedure was to be invoked instead of the normal court procedure. Upholding the validity of the provision, the Supreme Court ruled that "the Act which is passed with the object of providing a speedier remedy itself provides sufficient guidance to the officer concerned as to when he should resort to the remedy provided by it."28 In another case, apart from realising its loan through the court procedure, the state financial corporation was authorised, in case of default in paying the loan, to take over the management and/or possession of the industrial concern as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the corporation. The Gujarat High Court upheld the provision saying that it did not exclude an element of natural justice for the affected concern. The Court also rejected the argument that being itself an interested party, the corporation would be acting as a judge in its own cause.

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The Court argued that the power was exercisable by high ranking officials of the corporation who had no personal interest in the matter.29 The Court also rejected the argument that the corporation could pick and choose either of the two remedies against any one it liked as there was no policy laid down in the law to govern the discretion of the corporation in this matter. The Court said that "mere existence of different options to the authority is not violative of Art. 14" if the options are guided by a policy and, in the instant case, the guiding principle was "speedy recovery".30 4. ART. 19 : THE SIX FREEDOMS Sub-clauses (a) to (e) and (g) of Art. 19(1) guarantee six freedoms to the citizens of India. These are not, however, absolute freedoms as clauses (2) to (6) of Art. 19 permit the imposition of 'reasonable' restrictions thereon by law for various stated purposes. This means that none of the freedoms guaranteed by Art. 19(1) can be curtailed merely by an executive fiat; it is necessary to have a law to back administrative action. Further, a restriction imposed on any of the freedoms has to be 'reasonable'. This means that it is for the courts to determine whether a restriction is reasonable or not, and, for this purpose, the courts take into consideration both the substantive as well as the procedural aspects of the law in question. Lastly, a restriction to be valid must have a rational relation with any of the purposes for which the restriction can be imposed under the relevant constitutional provision. In what manner do these principles affect the area of administrative discretion relating to the freedoms guaranteed by Art. 19 is discussed below. In a number of cases, these Articles have also been invoked to control discretionary power. The judicial approach to conferral of discretion under Art. 19 is more or less similar to that adopted under Art. 14. The courts deprecate legislative attempts to confer unregulated and unguided discretion on authorities without setting up standards or laying down policies. But the efficacy of this wholesome approach is diluted somewhat by the judicial tendency to accept at times vague and general statements of policy as adequate for holding the discretion conferred as not being unregulated. Questions have also arisen as regards the minimum procedural safeguards which must be provided for, but, as the discussion below will show, there is no uniformity of judicial approach on this question under the various fundamental rights. In some, the courts demand better procedural safeguards than in others. For example, in case of freedoms of trade, speech and association, the courts have insisted on more substantial safeguards than in case of freedoms of movement or residence, though even in the former category there is a lack of consistency in the judicial attitude. Thus, between the freedoms of speech and association, the latter seems to be better protected. In case of association, the courts have shown a disinclination to leave matters finally in executive hands without any judicial control. The same was true of the now repealed Art. 19(1)(f) guaranteeing freedom to hold property.31 An interesting aspect of the judicial attitude is that the need for the existence of an advisory board as a control mechanism over exercise of administrative discretion is viewed differently in the context of the various fundamental rights. The Constitution itself provides for such an advisory board in case of preventive detention.32 On this analogy, attempts have been made to persuade the courts to lay down that there must be an advisory board to which an affected person may appeal against an exercise of discretion in other cases as well. The judicial attitude has been variable on this question. In case of right of association, the Supreme Court has said that since there is an advisory board in preventive detention cases, it does not mean that it will also be sufficient in cases of restraint on the right of association as well. On the other hand, in cases of restraint on the right of movement or residence, the Supreme Court has stated that an advisory board is not necessary in such cases just because there is one in preventive detention cases. This dichotomy in judicial attitudes to right of association and that of residence may be because of the relative significance of these rights in the judicial view. In a democracy, the right of association needs better protection as it forms the basic element of the entire democratic process, it being the basis of organization of political parties, while the right of residence or movement only affects the concerned individual personally. 5. ARTS. 19(1)(A) & 19(2) : FREEDOM OF SPEECH AND EXPRESSION Art. 19(1)(a) guarantees to all citizens the right to freedom of speech and expression. According to clause

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(2), however, the state may make a law imposing reasonable restrictions on this freedom in the interests of "the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence." The general principle is that executive interference with a person' s freedom of speech, without the support of a law, is not valid33 and that unguided or arbitrary discretion without any procedural safeguards or legislative policy should not be given to an administrative officer to regulate the freedom of speech and expression. Also, the discretion has to be exercised only for the purposes mentioned in Art. 19(2). The principle can be illustrated by reference to a few cases. The Dramatic Performances Act, 1876 authorized a district magistrate to prohibit public dramatic performances of a scandalous or defamatory nature, corrupting persons or arousing or likely to incite feelings of disaffection to the government. The Act was held to be unconstitutional for it made the district magistrate the final authority to determine the question whether or not a particular play was offensive under the Act; there was no obligation on the district magistrate to give reasons for his decision; no provision existed for the appointment of any higher authority (judicial or otherwise) to review or reconsider the order passed by him, or to afford an opportunity to the aggrieved party to make a representation against the prohibitory order.34 That a broad power to impose a restriction on the freedom of speech can be saved if there are safeguards against its improper exercise is illustrated by Virendra v. State of Punjab .35 S. 2(1)(a) of the Punjab Special Powers (Press) Act, 1956 empowered the State Government to prohibit the publication of any matter relating to a particular subject for a maximum period of two months in any issue of a newspaper if the government was "satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order." The aggrieved party could make a representation against the order to the government which after considering the same could modify, confirm or rescind the order. S. 3(1) authorized the state government to prohibit the bringing into the state of any newspaper if it was satisfied that such an action was necessary to prevent any activity prejudicial to the maintenance of communal harmony affecting public order. These provisions were challenged on the ground that they gave very broad powers to the government to curtail freedom of speech "on its subjective satisfaction", that the discretion conferred on the executive was arbitrary and uncontrolled and so unreasonable under Art. 19(2). The Supreme Court found that the law was enacted for preserving the safety of the State and for maintaining public order in the context of the serious tension existing amongst various communities in the State. The Court conceded that the government was charged with the preservation of law and order in the State, and being in possession of all material facts was the best authority to take anticipatory action for preventing any threatened breach of peace; quick decision and swift action were essential in the matter. S. 2(1)(a) was found to be valid as the power was to be exercised for the specific purposes mentioned in the section and the order of the government was "to remain in operation for a limited period only and is liable to be modified or rescinded upon a representation being made." However, the latter two safeguards were not available under S. 3 and, therefore, it was held to impose an unreasonable restriction. Babulal Parate v. State of Maharashtra 36 is another case where a statutory provision giving power to the executive to impose restrictions on the freedom of speech and to assemble was found valid owing to the safeguards contained therein. Under S. 144, Criminal Procedure Code, in the cases where, in the opinion of a district magistrate or any other magistrate (not being a third class magistrate) especially empowered by the State Government or the district magistrate, there is sufficient ground for proceeding under that section and immediate prevention or speedy remedy is desirable, he may by a written order stating the material facts of the case direct any person to abstain from a certain act if the magistrate considers that such direction is likely to prevent a disturbance of the public tranquility, or a riot, or an affray. The magistrate may rescind or alter the order on the application of a member of public after giving him an opportunity of hearing. If such an application is rejected, then the reasons for doing so are to be stated by the magistrate. Such an order may remain in force for two months at the most. The Supreme Court has upheld S. 144 pointing out that it is intended to be availed of for preventing disorders and to secure public weal. The powers are to be exercised by responsible magistrates who have to act judicially and restraints under the order are only for a temporary period, and for an emergency. The order passed by the magistrate has to set out the material facts for passing the order. The section does not, therefore, confer an arbitrary power on the magistrate to make an order. Not only can the action be challenged before the magistrate taking the action who has to act judicially

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in hearing the individual concerned but also the High Court has the power under S s. 435 and 439, CrPC, to entertain an application for revision of such an order. Even at the trial for infringing such an order issued under S. 144, its validity can be challenged.37 In State of Bihar v. K. K. Misra, 38 144(6) was, however, declared to be unconstitutional. Under it, the state government could extend the life of an order passed by a magistrate under S. 144(1) beyond two months if it was necessary for preventing danger to human life, health and safety or a likelihood of a riot or an affray. The power of the Government was characterised as "an independent power" which was not to be exercised judicially and was thus "open to be exercised arbitrarily". There was no provision for the party to make a representation, nor was the order of a temporary nature. A notable example of administrative regulation of freedom of speech and expression is the system of censorship of films under the Cinematograph Act, 1952. A Board of Film Censors, appointed by the Central Government, examines the films and may sanction, refuse to sanction, or order modifications in a film before sanctioning it. The party concerned is given an opportunity to represent his views in the matter. A film is not certified for public exhibition if, in the opinion of the board, the film is against the interest of security of the state, friendly relations with foreign states, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. An appeal against the order of the board lay to the Central Government which passed the order after holding such inquiry as it thought fit and after giving the appellant an opportunity to represent his views in the matter. The Act thus provides adequate procedural safeguards though the weakness in the procedure was that hearing of an appeal was by the government and not by a court or a tribunal. Further, the discretion vested in the board is subjective as the grounds mentioned in the Act are broad and vague. The decision of the board can be challenged only on the limited ground of "abuse of power."39 In Khwaja Ahmed Abbas v. Union of India, 40 the Cinematograph Act was questioned, inter alia, on the ground that appeal from the Board of Censors lay to the government and not to a court or an independent tribunal. The government conceded the point and agreed to amend the Act. The Court expressed satisfaction that the Central Government would cease to perform curial functions through a Secretary in the sensitive field of freedom of speech and expression. "Experts sitting as a Tribunal and deciding matters quasi-judicially inspire more confidence than a Secretary. . . .". Accordingly, in 1974, by an amendment of the Act provision was made for constituting an appellate tribunal. The provisions relating to the tribunal were substantially amended in 1981.41 In Maneka Gandhi v. Union of India, the Supreme Court ruled that an order made under S. 10(3)(c) of the Passport Act, 1967 (power to impound a passport) could be declared invalid under Arts. 19(1)(a) and (g) if it was so drastic in nature as to impose unreasonable restrictions on the individual' s freedom covered by these two clauses, e.g., an order of impounding a passport for an indefinite period.42 Thus, the concept of unreasonableness under Art. 19 is much broader than that laid down in Wednesbury.43 6. ARTS. 19(1)(B) & 19(3) : RIGHT TO ASSEMBLE Art. 19(1)(b) guarantees freedom to assemble peaceably and without arms, but under clause (3) reasonable restrictions can be imposed on this right by law on the ground, inter alia, of public order. It is not valid to confer uncontrolled discretion on administrative officers to regulate the freedom of assembly. In Himmat Lal v. Police Commissioner, Ahmedabad 44 arose the question of validity of a provision which provided that no public meeting would be held on a public street without the written permission of the authorised officer. No considerations were laid down for the exercise of the power by the concerned officer. The provision was struck down by the court as it gave no guidance to the officer as to the circumstances in which he could refuse permission to hold a public meeting. There were no procedural safeguards against misuse of power, and it conferred arbitrary powers on the official concerned. 7. ART. 19(1)(C) AND (4) : FREEDOM TO FORM ASSOCIATION The freedom to form association is ensured by Art. 19(1)(c) subject to reasonable restrictions being imposed thereon, inter alia, if the interest of public order or morality under clause (4) of Article 19. The right to form association is the life blood of democracy. Without such a right, it may become impossible to form political

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parties in the country. The Supreme Court has, therefore, been more scrutinizing as regards legislation conferring power on the executive to restrict this right. In State of Madras v. V.G. Row, 45 the Supreme Court refused to sanction a legal provision authorising an administrative authority to declare an association unlawful on its subjective satisfaction, and without permitting the grounds for imposing the restriction, both in their factual and legal aspects, to be duly tested in a judicial inquiry. The law in question made a provision obligating the government to place the materials on which it acted before an advisory board and to be bound by its decision. But the Supreme Court held that this "summary" and largely "one sided" review by an advisory board could not be a substitute for a judicial inquiry. The Court pointed out that the right to form association had a very wide and varied scope for its exercise and its curtailment was fraught with serious potential reactions in religious, political and economic fields. Therefore, in such a matter as freedom of association, except in very exceptional circumstances, and that too within very narrow limits, the formula of subjective satisfaction with an "advisory board thrown in to review the materials" without there being a provision for a judicial inquiry into the same was not going to receive judicial sanction. In another case, a government order empowering the Director of Public Instructions to recognize any teachers' union, or to forbid its existence, and requiring the teachers in municipal service not to form an association without the previous permission of the municipality was held bad as the exercise of the Fundamental Right to form association could not be made subject to the discretionary control of administrative authorities.46 At times, government recognition of an association may affect the right to form an association. In such a situation, Art. 19(1)(c) would control the power of the government to recognise associations. A rule provided that a union could not represent the parties in an industrial dispute unless it had been approved by the Labour Commissioner for this purpose. An application for approval could be made only two years after its formation and the commissioner had absolute discretion to accept or reject the application. These conditions for recognition were held to contravene Art. 19(1)(c).47 Reference may be made here to the Unlawful Activities (Prevention) Act, 1967, which authorises the Central Government to declare by notification in official gazette an association as unlawful on certain grounds mentioned in S. 2(f) of the Act. To keep control over the government power, provision has been made for appointment of a tribunal consisting of a sitting High Court Judge. A notification declaring an association unlawful is not to be effective until it is confirmed by the tribunal. The function of the tribunal is to decide whether or not there is sufficient cause for declaring the association as unlawful. Undoubtedly, the mechanism of a tribunal is incorporated into the law as a consequence of what the Supreme Court had observed in Row. For some time now, the Unlawful Activities (Prevention) Act has been in the news. In the wake of the demolition of Babri Masjid at Ayodhya, the Government of India issued notifications under the Act, dated Dec. 10, 92, declaring the following bodies as unlawful for two years : Vishwa Hindu Parishad (VHP); Rastriya Swayam Sevak Sangh (RSS); Bajrang Dal; Islamic Sevak Sangh and Jamaat-e-Islami Hind. The Bahri Tribunal appointed under the Act upheld the ban against the VHF but quashed the same against RSS and Bajrang Dal. The ban against the Jamaat-e-Islami Hind was upheld by the Lall Tribunal, but, on appeal, from the Tribunal decision, the Supreme Court quashed the order on the ground that "there was no objective determination of the factual basis for the notification to amount to adjudication by the Tribunal, contemplated by the Act."48 "The ban against VHP ended on December 9, 1994. Again, on January 14, 1995, the Government of India declared VHP as unlawful. This time the ban was negatived by the Ramamoorthy Tribunal. It ruled that the notification had been issued on "extraneous considerations" and so it was vitiated. The Tribunal ruled that the notification was issued for "collateral purposes and not for the purpose of maintaining peace and tranquility in society", and that the Government had "taken into account matters which it ought not to have taken into consideration."49 8. ARTS. 19(1)(D), 19(1)(E) & 19(5) : RIGHT OF MOVEMENT AND RESIDENCE

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Art. 19(1)(d) guarantees to every Indian citizen the right to move freely throughout the territory of India. Under Art. 19(1)(e), Indian citizens have the right to reside and settle in any part of India. According to Art. 19(5), the state can make a law imposing reasonable restrictions on these rights in the interests of the general public or for the protection of the interests of any scheduled tribe. A number of cases have occurred involving the question of validity of laws conferring discretion on the executive to restrict the right under Art. 19(1)(d) or (e). It is usual for the States to pass laws authorising the executive to extern a person from a particular area in the interest of public peace and safety. There are minor variations in such statutory provisions. In some cases, a person whose activities are dangerous to public peace can be externed, but in others the category of persons who could be externed has been specified. Then, in some cases a person externed from an area (sometimes the state itself) is free to choose any other place for his stay, but in others the place to which he could go may be specified by the executive. About procedural safeguards, it is usual to provide an opportunity of being heard; in some cases, the relevant authority can make the externment order with the prior approval of the state government, while in other cases, an appeal lies to it from the authority concerned. In some cases, there is provision for an advisory committee to consider the representation of the person affected. The scheme of the statutes is usually such that an externment order can be made only for a limited period. Such a law prima facie affects the freedoms of movement and residence and, therefore, the courts are entitled to test its validity under Art. 19(5). Under a State law, a district magistrate could order externment of a person from any area on being satisfied that such an order was necessary to prevent him from acting in any way prejudicial to public safety or maintenance of public order. The magistrate' s satisfaction was final and not open to judicial review. The Supreme Court held the law to be valid in Khare (Dr.) v. State of Delhi .50 The Court ruled that a law providing for externment was not bad merely because it left the desirability of making an externment order to the subjective satisfaction of a particular officer, for an element of emergency required taking of prompt steps to prevent apprehended danger to public tranquility. The law in question was of a temporary nature only as its life was limited to two years and it contained a few safeguards, e.g., the externee had a right to receive the grounds of his externment from the executive; he could make a representation for consideration by an advisory board if the externment was for more than three months. On comparing Khare with Row, it would appear that the Supreme Court placed a greater value on the right to form association than on the right of residence and movement. In Khare, the Court accepted as valid conferment of power on an executive officer to make an externment order without any judicial scrutiny. The Court argued that externment of individuals, like preventive detention, was largely precautionary and based on suspicion. On the other hand, the grounds in Row were held to be factual and not anticipatory or based on suspicion. There was an advisory board but it was nominal as its opinion was not binding on the government and no reference was made to it if the externment was for a period of less than three months. In Gurbachan v. State of Bombay, 51 the Supreme Court held as valid a provision bestowing power on the Commissioner of Police to serve an externment order for a period up to two years to a person, if, in his opinion, the movements or acts of the person concerned in Greater Bombay were calculated to cause danger or harm to person or property. He could either be externed from the state itself, or to a specified place within the state. In this case, the person was asked to go to a specified place within the state. The law in question provided for some procedural safeguards, e.g., before making an externment order against a person, the commissioner was to inform him in writing about the general nature of the material allegations against him; he was to be given a reasonable opportunity of explaining these allegations; he could appear through an advocate, file a written statement and examine witnesses for the purpose of clearing his character. The court held the procedure to be reasonable even though the person affected had no right to cross-examine the witnesses deposing against him. The provision was made to protect the public from dangerous and bad characters. The witnesses might not like to depose against such people for fear of violence and, therefore, giving of a right to cross-examine witnesses might frustrate the very purpose of the Act. Again, in Hari v. Deputy Commissioner of Police 52 the Supreme Court upheld the validity of S. Section 57 of the Bombay Police Act authorising any of the officers specified to extern certain convicted persons from the area within his jurisdiction if he had reason to believe that such a person was likely to commit an offence

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similar to that of which he was convicted. The argument was taken that the law stood vitiated as there was no advisory board to scrutinise the material on which the authority took action against the person concerned. The Supreme Court rejected the argument with the remark that there was no universal rule that the absence of an advisory board would necessarily make such legislation unconstitutional. The externee in this case had a similar right of hearing as in the Gurbachan case. It was also argued that the law was unreasonable because the case was initiated by the police and it was the police itself who was to judge the case. The court rejected the argument because whereas the case could be initiated by an inspector of police, the order of externment could be made only by the Commissioner of Police. Other safeguards available in the law were that an appeal lay to the state government against the order and a reference could be made to the courts on some points. In Bhagubhai v. District Magistrate 53 was involved S. 56 of the Act. The material difference between this section and S. 57 was that under it any person whose activities were causing or likely to cause danger or harm to property or person, etc., could be externed. The safeguards under both the sections were the same. The Supreme Court upheld the provision. However, Jagannadhadas, J., expressed the view that the vesting of a power to extern a person out of his home for so long a period (two years) without the obligation to review the order periodically, say, once in three or six months, was prima facie unreasonable because though on the face externment might not appear to be as serious interference with the personal liberty of an individual as detention, yet in actual practice it might produce a more serious injury to the person concerned. Nevertheless, he felt bound to follow the previous decisions of the court. The C.P. Goondas Act, 1949 provided for removal of goondas from one place to another in the interest of public peace or tranquility. A goonda was defined as meaning a hooligan, rough or vagabond and as including a person who was dangerous to public peace or tranquility. The state government could proclaim any area as the disturbed area for a period of three months at a time. The district magistrate was authorised to direct a goonda not to remain within a specified part of such area if there were reasonable grounds for believing that his presence or movement was prejudicial to the interest of general public or public peace, etc. A few procedural safeguards were provided, such as, giving to the person concerned grounds on which the order was sought to be made; providing him with an opportunity of being heard; previous approval of the government was necessary in certain circumstances. In State of Madhya Pradesh v. Baldeo Pd .54 the Supreme Court found two infirmities in the scheme of the Act and so held it invalid. Though the condition precedent for taking action under the Act was that the person was a goonda, there was no requirement for the magistrate, before taking action, to come to a formal decision as to whether the person concerned was a goonda or not, and no opportunity was furnished to the person to show that he was not a goonda. Then the definition of a "goonda" afforded no assistance in deciding as to the citizen who could be brought within that category. It was an inclusive definition and it did not indicate what tests had to be applied in deciding whether a person fell in the first part of the definition. The court insisted that the Act must have clearly indicated when and under what circumstances a person could be called a goonda. The case is somewhat difficult to reconcile with some of the earlier cases. In the earlier cases, any person whose activities were prejudicial to public peace or safety could be externed, and when such a wide power could be upheld it seems somewhat inconsistent to declare invalid a provision where the legislature did try to put some restrictions on the executive power to extern, i.e. only a goonda could be externed. Even assuming that any person could be regarded as a goonda, still the statute required an opportunity of being heard as to the grounds of the order (that is, his undesirable activities). At the most the executive in this case had the same power of externing a person as in the other cases. Again, in State of Madhya Pradesh v. Bharat Singh, 55 the Supreme Court invalidated a statutory provision which gave power to an executive authority to specify the area where an externee was to stay, because of the absence of procedural safeguard of hearing. Under the Act, a district magistrate, or the state government, could extern a person from any place in the state and require him to remain in a specified place in the state if the authority concerned was satisfied that his activities were likely to be prejudicial to the security of state or maintenance of public order. This was subject to the safeguard that the grounds for making the order were to be given to the person concerned and there was an advisory council and the government was required to act in accordance with its opinion. The Supreme Court found that no hearing was provided for selecting the place where the externee was to reside. In the opinion of the court, the person might not be able to get means of livelihood in the specified place, and the statute made no provision that the person would be provided with any residence or means of livelihood. It appears that the Baldeo Pd. and the Bharat Singh cases indicate judicial rethinking on its earlier liberalism towards the laws concerning

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externment of persons. The strict approach in the matter of externment depicted in Baldeo Pd. and Bharat Singh is descernible in the later Supreme Court case, Prem Chand v. Union of India .56 The court regarded externment of a person as amounting to "economic harakiri and psychic distress". The court emphasised that externment provisions have to be read strictly and that any "police apprehension is not enough. Some ground or other is not adequate. There must be a clear and present danger based upon creditable material which makes the movements and act of the person in question alarming or dangerous or fraught with violence."57 Natural justice must be fairly complied with. The decisions mentioned above make it clear that while a law may authorise the executive to extern a person in its subjective satisfaction, the law to be valid should contain some procedural safeguards. A necessary procedural safeguard is that the person concerned be supplied with the grounds of externment and be given an opportunity to make a representation even if it be before an executive officer. It will not be incorrect however to say that the Supreme Court has permitted the legislature to concede, on the whole, a large amount of discretion to the executive to extern a person from a local area and, thus, tamper with the individual liberty of movement and residence in India. The courts do not even regard the presence of an advisory board as necessary. As against this, it may be noted that the right of association has been given a better protection; in this case, the existence of an advisory board has not been found sufficient and there has been judicial insistence on reference to a judicial tribunal for declaring an association unlawful. To some extent, it may be that the right of "association" needs a much greater protection than the right of "movement and residence" for whereas the former is the base of a democratic society, the latter affects only an individual. But even then the right of movement and residence needs a better protection than it has received so far. The forceful dissent of Mukherjea, J., in the Khare case is indicative of the unsatisfactory features of the position prevailing in the area. The statute involved in the cases mentioned above were concerned with restrictions on movement of persons within India. But S. 3 of the Influx from Pakistan (Control) Act, 1949 prohibited entry of any person into India from Pakistan without a valid permit, and S. 7 of the Act empowered the Central Government to direct removal from India of any person if it entertained a reasonable suspicion that he had entered India without a valid permit. The Supreme Court held S. 7 invalid in Ebrahim Vazir v. State of Bombay 58 in relation to Indian citizens, invoking the Fundamental Right of a citizen to reside and settle in any part of India guaranteed by Art. 19(1)(e). The section had left the matter of removal of a citizen of India from his own country to the arbitrary and unrestrained discretion of the government; all that the government had to do was to issue an order that a reasonable suspicion existed in its mind that an offence had been committed. A person could be removed merely on suspicion without a reasonable opportunity being given to him to clear his conduct and this was nothing short of a travesty of the right of citizenship. 9. ARTS. 19(1)(F) & 19(5) : FREEDOM TO HOLD PROPERTY Arts. 19(1)(f) and 19(5) along with Art. 31 giving protection to the right to property have been repealed. Thus, protection to the property right has been very much diluted. Instead the Constitution now has Art. 300-A which says : "No person shall be deprived of his property save by authority of law". Thus, interference with property rights merely by an executive action without the support of a law is unwarranted. An administrative authority can interfere with an individual' s property rights only if there is a law giving it the necessary power. Further, the administration can do so only in accordance with the law.59 A law conferring unguided and arbitrary powers on the Administration in relation to property can now be challenged under Art. 14 and Art. 19(1)(g). 10. ARTS. 19(1)(G) & 19(6) : FREEDOM OF TRADE AND COMMERCE The area of trade, commerce and business has so far been under rigorous administrative regulation. Broad powers to regulate trade and commerce have been conferred on administrative authorities through statutes

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or rules. Some of the techniques of control operating in the area are licensing, price-fixing, requisitioning of stocks, regulating the movement of commodities, partly due to the shortage and scarcity of essential commodities, partly because of the economic regeneration of the country under the impact of the Five Year Plans, partly to discourage some immoral and illegal trades, and partly to check unethical professional activities of private entrepreneurs.60 Under Art. 19(1)(g) all citizens of India have the right to practise any profession, or to carry on any occupation, trade or business. However, Art. 19(6) empowers the state to make any law imposing, in the interests of the general public, reasonable restrictions on the exercise of this right. A law nationalising any trade or business is also not hit by Art. 19(1)(g). The question as to how much discretion can be conferred on the executive to control and regulate trade and commerce has been raised in a large number of cases. The general principle in this connection is that the power conferred on the executive should not be arbitrary, unregulated by any rule or principle, and that "it should not be left entirely to the discretion of any authority to do anything it likes without any check or control by any higher authority". "A law or order which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable."61 Generally speaking, discretion is not unregulated or arbitrary if the circumstances in, or the grounds on, which it can be exercised are stated, or if the law lays down the policy to achieve which the discretion is to be exercised, or if there are enough procedural safeguards in the law to provide security against misuse of the discretion.62 In the case of trades which are illegal, dangerous, immoral or injurious to health and welfare of the people, same standards do not apply as to, and a greater discretionary authority may be left with the executive to regulate such trades than is permissible in, normal trades.63 In District Collector v. B. Suresh, 64 the Supreme Court held that where the Government took a policy decision to bifurcate the fair price shops and reduce the number of ration cards each shop could handle, there was no violation of right to trade under Article 19(1)(g) or any other right of the fair price shop dealers. (a) Licensing Regulation of trade through a licensing system is all pervasive at present. The question of permissible limits on the licensing power of the Administration arises quite often. The basic proposition which the courts have laid down is that the licensing officers ought not to be given uncontrolled power to grant, revoke, or cancel a license. There should be reasonable norms, policy or principles to guide administrative power as well as some procedural safeguards. Dwarka Pd. v. U. P. 65 is the first leading case which laid down the proposition that a law conferring arbitrary and unguided powers on the administrative authorities will be invalid under Art. 19(1)(g). The case involved the U.P. Coal Control Order, 1953 issued under the Essential Supplies (Temporary Powers) Act, 1946. Cl. 3(1) of the order required a licence for stocking, selling, storing or utilising coal. Cl. 3(1)(b) authorised the coal controller to exempt any person from the licensing provision. Cl. 4(3) authorised the licensing authority to grant, refuse to grant, renew or refuse to renew, suspend, cancel, revoke or modify any licence for reasons to be recorded. The court held cl. 3(1) as quite unexceptionable, for it was reasonable to regulate sale of essential commodities through licensed vendors to ensure their equitable distribution and availability at fair prices. S. 3(2) was held invalid because the grounds on which an exemption could be granted were nowhere mentioned; the controller had been given an unrestricted power to make exemptions, and there was no check on him and no way to obtain redress if he acted arbitrarily or from improper motives. Cl. 4(3) was also held bad for it gave to the licensing authority an absolute power to grant, revoke, or suspend a licence. No rules were framed to guide his discretion and the matter was committed to the unrestrained will of a single individual. There was nothing to ensure a proper execution of the power, or to operate as a check against injustice resulting from its improper exercise. The requirement to record reasons was not an effective safeguard for no authority was appointed to examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons required to be recorded were only for the subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. Some cases subsequent to Dwarka Pd. weakened its authority as regards the licensing power, but then several other cases rehabilitated it. In the first category falls Harishankar Bagla v. State of M. P. 66 It involved the question of validity of the Cotton Textiles (Control of Movement) Order, 1948 which required a

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permit from the Textile Commissioner for transportation of cloth by any person. It was argued that the order conferred an unregulated and arbitrary power to grant or refuse a permit. The Supreme Court, however, upheld the order. Unlike Dwarka Pd., the Court found sufficient guidance for the exercise of the power in the general policy of the order which was to regulate transportation of cotton textiles in such a manner as to ensure its even distribution in the country and make it available to all at a fair price. The Dwarka Pd, case was held as having no bearing on the present case as there was no analogy between the two. Perhaps, what the court meant by this was that a licence to trade stood on a different footing from permits to regulate transportation or movement of goods. Whereas, in the former case, a person could not carry on a trade at all without a licence, in the latter case, a restriction was imposed only on one aspect of the total trade, leaving the rest free. Paraffin wax could not be sold to any one except one having an allotment order issued by a competent authority. The power was declared invalid as being unguided and arbitrary. The authority could at its sweetwill and pleasure choose the persons for allotment of wax and fix the quantum of allotment. There was no policy or principle laid down to regulate the power of allotment; there was no procedural safeguard provided against misuse of power. No appeal had been provided from the orders of the authority which was not even required to state reasons for making an allotment order.67 Referring to the argument that the competent authority had itself laid down guiding principles for the exercise of the power conferred on it, the court replied that "it is meaningless and a contradiction to say that the competent authority has himself laid down principles to regulate the exercise of his power." The authority could itself change these guiding principles whenever it wanted and in any manner it liked. In Kishan Chand Arora v. Commissioner of Police ,68 the Supreme Court by a majority of 3:2 propounded an extreme view by upholding the law empowering the Commissioner of Police to grant licences, in his discretion, to eating houses, even though there were no norms to guide his discretion and there were no procedural safeguards against denial of licence. The minority view was that "arbitrariness is writ large" on the face of the provision. In view of the later decisions, this case does not now represent good law. A control order issued under S. 3(2)(d) of the Essential Commodities Act, 1955 introduced a permit system for export of rice and paddy from one place to another within the State. This was challenged on the ground that it infringed Art. 19(1)(g)insofar as it imposed an unreasonable restriction on the petitioner' s right to carry on trade and commerce and it conferred arbitrary powers in the matter of issuing or withholding of permits and there was no provision for appeal or revision against refusal to grant a permit. Rejecting the argument, the Supreme Court stated that the permits were to be issued by the State Government or district collectors. These high ranking officers were expected to discharge their duties in a responsible and reasonable manner. The Dwarka Pd. case was distinguished on the ground that there the power of licensing could be conferred on any person but in the instant case, permits were to be issued by responsible officers. There was a presumption that public officials would discharge their duties honestly and in accordance with law. The absence of a provision for appeal was held as not bad because an affected person could always approach the State Government to review the matter when a permit was refused by a district collector.69 Reference was made a several earlier cases decided by the Supreme Court laying down the proposition that when power was to be exercised by a high officer the fact that no appeal had been provided for was a matter of no moment.70 The argument that when power is exercised by high officials, chances of misuse of power are minimal and no appeal need be provided in such a case is very tenuous indeed. If this principle is taken to its logical end, then no control would be necessary when power is exercisable by a Minister, The fact, however, is that authority may be misused or abused both by a high or low officer and there are several cases to illustrate this point. Control mechanism is a guarantee against improper use of power. The, Courts should insist that any unregulated delegation of power on the Administration is invalid whether power is exercisable by a high or low ranking official. Accordingly, the Courts insist on at least one stage of appeal from the concerned official to a higher officer as a matter of right and not be satisfied by a mere informal review. Nevertheless, following Chinta Lingam, the Courts usually hold broad powers conferred on officials as valid on the ground that the power has been conferred on a 'high and responsible' officer who is expected to discharge his duties in a responsible manner.71 A few cases which follow the philosophy of Dwarka Pd. may now be mentioned. In Chandrakant v. Jasjit Singh, 72 the Supreme Court considered the validity of the Customs House Agents Licensing Rules, 1960 issued under S. Section 202 of the Sea Customs Act, 1878. The section provided for licensing of clearing agents, and the rules prescribed the conditions for the issue of such licences. One of the rules provided that

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the customs collector could reject an application for the grant of the licence if "the applicant is not otherwise considered suitable." Declaring the rules unconstitutional the Court stated : "In our opinion, if a candidate is found fit under the other rules and has successfully passed the examination, he should only be rejected under a rule which requires the Customs Collector to state his reasons for the rejection and the rules must provide for an appeal against the order ...."73 In Hari Chand Sarda v. Mizo District Council, 74 the Mizo District Council framed regulations which provided that a non-tribal would not carry any trade in the district without a licence issued by the council. If a licence was refused, the grounds for refusal were to be recorded by the council. The power of granting licences was delegated to the Executive Committee of the council by rules. The Supreme Court struck down the regulations as they did not provide any principle or standards on which the committee was to act. There was no provision for appeal to any superior authority against refusal to grant or renew a licence, and no civil court could adjudicate against any such order of the committee. The committee was no doubt required to record reasons for the refusal but that was considered as "hardly a safeguard against an arbitrary refusal". The power conferred on the committee was held to be unbridled and unrestrained and bad under Art. 19(1)(g). In another case, the Supreme Court again struck down a licensing provision because it conferred an unguided power on the executive. The Gold (Control) Act, 1968 provided for the licensing of dealers in gold and gold ornaments. The Administrator (an office created under the Act) was empowered to grant or renew licences having regard to such matters, inter alia, as the number of dealers existing in a region, anticipated demand, suitability of the applicant, and public interest. The Supreme Court held that all these factors were vague, uncertain and unintelligible. The region was nowhere defined in the Act. The expression "anticipated demand" was a vague one. Similarly, the expression "suitability of the applicant" and "public interest" did not provide any objective standard or norm.75 A rule authorized the director of mines to grant short term permits for minor minerals. He could refuse to grant the permit for reasons to be recorded in writing. The Central Government exercised revisionary powers over the director' s order. The rule was held valid because not only reasons were to be recorded while refusing the permit, but the Central Government could even revise the order. This provided enough safeguard and the discretion conferred could not be regarded as excessive.76 It is clear from the above cases that if safeguards are provided against arbitrary exercise of power to grant or cancel licences, the law may be upheld.77 A few more cases may be mentioned to support this proposition. Cl. 9(a) of the Imports (Control) Order, 1955 authorises the Chief Controller of Imports and Exports to cancel any licence if it has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation. Cl. 10 lays down that no action under Cl. 9 shall be taken unless the licensee has been given reasonable opportunity of being heard. The Supreme Court held in Fedco v. Bilgrami 78 that Cl. 9(a) read with Cl.10 was a reasonable restriction in the interest of the general public on the exercise of a citizen' s right under Art. 19(1)(g). In view of the safeguards, there was no case of unbridled authority to cancel a licence; there was no scope for arbitrary action. The Bihar Mica Act, 1948, introduced a licensing system to regulate the possession and transport of, and trading in, mica in the State. S. 25 authorized the State Government to cancel a licence on the grounds mentioned therein. To cancel a licence it was necessary to furnish the licensee with the grounds for the proposed cancellation and to afford him a reasonable opportunity to show cause against it. The Supreme Court in Mineral Development Ltd. v. State of Bihar ,79 held the restriction reasonable. The power was entrusted to the highest executive in the State which ordinarily could be relied upon to discharge its duties honestly, impartially and in the interest of the public without any extraneous considerations. The section provided clearly ascertainable standards for the State Government to apply to the facts of each case. The discretion of the State Government was hedged in by the important restriction of giving a reasonable opportunity to the licensee to show cause. A statutory provision for the suspension of a trading licence, pending cancellation proceedings, was upheld vis-a-vis Arts. 14 and 19(1)(g). The power was not unguided or uncontrolled; it was an interim measure (maximum period of suspension being 90 days), there had to be specified reasons for suspension, and there was a provision for appeal to a higher officer against the suspension order.80 The power to suspend a license was regarded as "a necessary adjunct" of the power to grant a licence. The Rice-Milling Industry (Regulation) Act, 1958, introduced a licensing system for rice-mills. Existing rice mills were required to apply for licences; licenses were to be issued to these mills and the licensing officer had no discretion in the matter. He could revoke a licence after giving the licensee an opportunity of showing cause against the proposed action if he was satisfied that--(i) it was obtained by misrepresentation as to essential facts; (ii) if the licensee had failed, without reasonable cause, to comply with its conditions; (iii) if he had contravened

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any provision of the Act or the rules made thereunder. The Supreme Court ruled in Chandrakant Saha v. Union of India 81 that as there were adequate guidelines incorporated in the statutory provision, it did not confer an arbitrary power. Power to grant licenses to new rice mills was vested in the Central Government by S. 5 which laid down adequate guidelines to regulate government' s discretion for the purpose. Consequently, the Court ruled that the power was not uncanalised or unguided and, thus, did not constitute an unreasonable restriction on the right of the petitioners to carry on their trade. In Khatki Ahmed Musha Bhai v. Limdi Municipality ,82 the Supreme Court has stated that the municipality can refuse to grant a licence on grounds which are not irrelevant or unreasonable with in the meaning of Art. 19(6). It is open to the licensing authority to take note of all relevant circumstances and then decide whether a licence should be granted. The Gold (Control) Act, 1968 was enacted with a view to provide, in the economic and financial interests of the community, to control production, manufacture, supply, distribution, use, possession and business in gold ornaments and articles and also to prevent smuggling in gold. Section 27 introduced a licensing system for dealers of gold. Cl. (6) introduced certain conditions for issue of licences. In Harak Chand v. Union of India ,83 the Supreme Court declared these conditions as vague, uncertain and unintelligible and hence invalid under Art. 19(1)(g). Later certain other provisions were attacked vis-a-vis Art. 19(1)(g). Section 16(7) required a licensed dealer or refiner to make a declaration of any gold owned, possessed, held or controlled by him in any capacity other than that of a licensed dealer or refiner. According to S. 52, in case of change in the composition of a firm licensed as a dealer or refiner, its licence would become invalid unless the change was approved by the Administrator. In case of actual or apprehended contravention of any provision of the Act, rule or order passed under the Act, gold could be confiscated. However, S. 79 required that the grounds on which confiscation was proposed should be communicated to the owner and an opportunity of making written representation given to him. If no such notice was given within six months from the date of seizure of the gold, or such further period as the collector of central excise, or customs might allow, gold was to be returned to the owner. It was contended in Manick Chand84 that S. 52 delegated excessive and unguided discretionary power to the Administrator to approve a change in the firm and that S. 79 conferred excessive and unguided power on the collector to extend the period for keeping the seized gold without any time limit. The Supreme Court rejected both the contentions. The Court pointed out that even though there were no guidelines or principles for the exercise of power under S. 52, yet Rule 2 of the Gold Control (Licensing of Dealers) Rules, 1969 enlisted matters to which regard must be had before issuing a licence and Rule 3 indicated the conditions to be fulfilled for renewal of a licence. Although these rules did not specifically cover a case of change in a firm, a change would require renewal of the licence, and then Rule 3 would apply. The power under S. 52 was delegated to the deputy collector, and a person aggrieved by his order could prefer an appeal to the collector under S. 80. Taking into account the guidelines provided in Rule 3, and the provision for appeal, the Supreme Court ruled that there was no excessive, unreasonable or unguided delegation of discretionary power. Likewise, while S. 79 contained no guidelines to regulate the collector' s discretion, it was clear from other provisions of the Act that the order of seizure was to be passed only when there was "reason to believe" the actual or apprehended contravention of the Act, rules or order. The power to extend time under S. 79 was conferred on a senior officer. The owner of the seized gold was entitled to get back the gold normally after six months except when investigation could not be completed for bona fide reasons within that time. The Court emphasized that "the collector is expected to pass extension orders neither mechanically nor as a matter of routine but only on being satisfied that the facts or circumstances exist which indicate that the investigation could not be completed for bona fide reasons within the initial period of six months." Further, the power conferred by S. 79 was subjected to two inbuilt safeguards. One, as the extension of time beyond six months resulted in adverse civil consequences affecting the owner of gold, it was necessary to give him a notice and an opportunity to make representation against extension. Two, the order granting extension must be a reasoned one, so that the provision of appeal against the collector' s order could be effective. In Union of India v. Annam Ramalingam ,85 the Court upheld the validity of S. Section 28 of the Gold Control Act, 1968 against attack on the ground that it provided no criteria or guidelines for the exercise of his power by the Administrator. S. 28 barred a licensed dealer, unless authorized by the Administrator, to carry on business as a moneylender or banker on the security of ornaments or any other article. Although no express rule prescribing the conditions or circumstances for grant of power had been prescribed, that was not decisive of the matter. S. 28 being a part and parcel of the entire scheme of gold control as envisaged by the

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Act "the object of the enactment and the scheme affords sufficient guidance to the Administrator in the matter of exercising his discretion under that section". S. 28 was designed to prevent circumvention of other provisions of the Act. Against the Administrator' s order a revision could lie to the Central Government "which implies that he will have to make judicious use of his power or discretion and any improper exercise is liable to be corrected by a higher authority". According to a Tamil Nadu Act, no private educational institution could be run without government permission. The relevant provision merely said that the government "may grant or refuse to grant permission". The only safeguard provided was that permission would not be refused "unless the applicant has been given an opportunity of making his representation." In Parasuraman,86 the Supreme Court held the provision invalid as the government was left with "unrestricted and unguided discretion" which rendered the provision "unfair and discriminatory" vis-a-vis Art. 19(1)(g). No conditions had been laid down which an institution must fulfil before applying for permission nor any tests indicated for refusing permission. The Act was absolutely silent about the criteria to be adopted by the government for granting or refusing permission. The hearing requirement was regarded as not enough safeguard to protect the applicant from discriminatory treatment. Another feature to which the Court objected to was the provision which conferred an unrestricted and unregulated power in the state government to appoint "any person, officer or other authority" as competent authority to exercise powers under the Act. The function of cancelling a licence has been held to the quasi-judicial and, therefore, rules of natural justice must be followed while cancelling a licence.87 A licence may however be suspended without giving a hearing to the licensee as it is merely a preliminary stage to cancellation.88 (b) Miscellaneous Situations The Dwarka Pd. proposition can be seen working in a few other situations. By an amendment in 1976 of the Industrial Disputes Act, 1947 it was provided that if an employer was intending to close down his factory, he had to obtain the previous approval of the government which could refuse to give the permission if it was of the opinion that the reasons for the closure were not sufficient or the closure was prejudicial to public interest. In Excel Wear v. Union of India ,89 the amendment was struck down, inter alia, on the ground that the authority could whimsically and capriciously refuse permission to close down the factory and the order was not subject to any scrutiny by any authority or tribunal either in appeal or revision. In Meenakshi Mills,90 S. Section 25N of the Industrial Disputes Act was challenged under Art. 19(1)(g). S. 25N makes it necessary to secure government' s permission for retrenchment of workers. The Supreme Court upheld the provision and repelled certain arguments against its validity. For instance, the Court ruled that absence of a provision for appeal against the government order did not vitiate S. 25N as the order was required to be passed on objective considerations; it had to be a speaking order and the High Court could review it under Art. 226 of the Constitution. The Court ruled that the absence of guidelines for exercise of the power under S. 25N did not vitiate it because the government' s power was quasi-judicial, and not administrative, in nature and the concerned parties were to have an opportunity to make their submissions to the concerned authority. The power was to be exercised in accordance with the objectives of the Act. The Court distinguished Excel Wear91 on the ground that under S. 25O, the provision involved in that case, order was to be passed by the governments in its subjective satisfaction and there was no requirement to record reasons for passing the order and hence S. 25O was invalidated. S. Section 25M, Industrial Disputes Act, requires an employer to secure the permission of an authority specified for the purpose by the State Government before laying off workers. The Supreme Court has held the provision valid in Papnasam Labour Union v. Madura Coats Ltd. 92 because the "procedural reasonableness" has been taken care of by the following safeguards : (1) The concerned authority is required to decide the employer' s application expeditiously, and in any case within a period of two months from the date of seeking permission, otherwise the permission "shall be deemed to have been granted" on the expiry of two months; (2) The concerned authority has to record reasons in writing for granting or refusing the permission applied for; and (3) the order has to be communicated to the applicant. As regards substantive reasonableness, the Court ruled that the "power in question would be exercised by a specified

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authority" and "as it can well be presumed", it "would be a high authority who would be conscious of his duties and obligations." The Court distinguished S. 25M from the provision invalidated in Excel Wear.93 In that provision there were no safeguards as are to be found in S. 25M. In Seshadari v. District Magistrate ,94 a rule requiring a cinema owner to show at each performance approved film of such length, and for such length of time, as the government might direct was held unreasonable as the length of film and the period of time had not been specified; the government was vested with an unregulated discretion to compel an exhibitor to show a film of any length; there was no principle to guide its discretion and this might lead to a total loss of his business for the government could require the exhibitor to show approved films of such length as would consume the whole time for each performance. Similarly, a rule prescribing a "minimum" length of 2000 ft. of approved films to be shown at a performance was held bad for no maximum was prescribed, thus making the discretion of the authority unrestrained and unfettered which might lead to an unjustifiable interference with the licensee' s right to carry on his trade. In State of Rajasthan v. Nath Mal ,95 power to freeze stock by the executive so that it could not be disposed of except with its permission, contained in the Rajasthan Foodgrains (Control) Order, 1909, issued under the Essential Supplies Act, 1946, was held to be valid even though no grounds for the exercise of the power were mentioned. The court was satisfied with the general policy laid down in the parent Act, namely, securing of equitable distribution, etc., of the essential commodities. There was also a provision in the order empowering the executive to requisition and dispose of the stock frozen at the rate fixed by the government. This was held to be bad as it was left entirely to the government to requisition stocks at a rate fixed by it and to dispose of such stocks at any rate in its discretion; this, thus, vested, in the opinion of the court, an unrestrained authority to requisition stocks of grains at an arbitrary price. In Bijay Cotton Mills v. State of Ajmer ,96 the validity of the Minimum Wages Act, 1948 was challenged, inter alia, on the ground that the procedure to fix minimum wages was arbitrary as the whole matter of fixation was left to the government' s unfettered discretion. The Supreme Court held the Act valid. Though the powers given to the government were very large, yet the statute provided several safeguards, namely, an advisory committee could be appointed; the persons affected could make representation; consultation with advisory bodies was obligatory for revision of minimum wages; there was a Central Advisory Board to advise the Central and state governments in the matter of both fixation and revision of minimum wages and to act as a coordinating agency for different advisory bodies. Each committee or advisory body was to consist of an equal number of representatives of employers and employees with a few independent persons who could take a fair and impartial view of the matter. The court opined that these provisions constituted adequate safeguards against any hasty or capricious decision by the government.97 Reference has already been made to S. 237(b) of the Companies Act which authorises the Central Government to order an investigation into the affairs of a company under certain circumstances mentioned in the section itself.98 The Supreme Court has ruled that S. 237(b) is not violative of Arts. 14 and 19(1)(g) of the Constitution. An investigation causes inconvenience to the company in carrying on its business, but places no restrictions thereon as it is only of an exploratory character. The power to order an inquiry can only be exercised on an opinion formed on the "objective test of the existence of circumstances suggesting things set out in Cl. (b) of S. 237."99 Under Section 132,Income-tax Act, 1961 the power to direct a search and seizure is given to the Director of Inspection or the Commissioner of Income-tax. Authorisation to carry out search and seizure must be in favour of officers not below the grade of income-tax officers. The power to authorise search and seizure can be exercised only when the Director of Inspection or the Commissioner has reason to believe that in spite of requisitions under the provisions of the Income-tax Act, the required books and documents have not been produced and will not be produced, or that any person is in possession of undisclosed income or property. Rules have been framed under the Act to regulate search and seizure. Undisclosed income or property can be seized. A summary enquiry is to be made and completed within 90 days by the authorities to ascertain how much of the seized valuables should be retained against the unpaid tax dues. The balance is to be released forthwith. Thereafter, a regular assessment is to be made for the tax payable. Books of account are not to be retained for a period exceeding 180 days unless the authorised officer records his reasons in writing for the same and the Commissioner approves of the retention.1

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The Supreme Court has held Section 132 valid in Pooran Mal.2 The provision is directed against persons, who are believed on good grounds to have evaded tax on their income and property and so it is reasonable under Art. 19(1)(f) and 19(1)(g). Drastic provisions are needed to get at undisclosed income and property. Provisions regarding search and seizure have been upheld in several previous cases as well.3 However, such provisions could be objectionable if their implementation is not accompanied by safeguards against undue and improper exercise of power. "As a broad proposition it is now possible to state that if the safeguards are generally on the lines adopted by the CrPC, they would be regarded as adequate and render the temporary restrictions imposed by the measure reasonable." Since S. 132 has several inbuilt safeguards, it has been held to be reasonable under Articles 19(1)(f) and 19(1)(g). A statutory provision banned use of any premises in Calcutta without a license from Calcutta Municipal Corporation for any purpose which "in the opinion of" the corporation was dangerous to "life, health or property or likely to create nuisance". The opinion of the Corporation was made "conclusive" and non-challengeable in a court. The Supreme Court ruled that making the Corporation' s opinion conclusive and non-justiciable was invalid as it amounted to an unreasonable restriction on the right of carrying on trade. The Court observed : "The vice in the provision is that it makes the opinion of the Corporation, howsoever capricious or arbitrary it may be or howsoever unreasonable on the face of it may be, conclusive and non-justiciable."4 (c) Price Fixing Statutory provisions often confer power on the executive to fix prices of commodities. These provisions have usually been upheld. The Coal Control Order gave power to the concerned authority to fix prices of coal. For this purpose, a detailed statutory formula was laid down which left only small scope for administrative discretion. The provision was accordingly upheld by the Supreme Court in Dwarka Pd. on the ground that the discretion under the formula was neither unfettered nor unlimited. In Diwan Sugar Mills v. Union of India 5 was challenged the validity of Cl. 5 of the Sugar (Control) Order, 1955 which authorised the Central Government to fix prices of sugar; different prices could be fixed for different areas or factories, or different types or grades of sugar; in fixing the prices, the government was to give due regard to the price fixed for sugarcane, manufacturing costs, taxes, reasonable margin of profit for the producer/trader and any incidental charges. The provision was held to be valid. The various factors mentioned in the order for fixing prices were considered to constitute adequate check against the government abusing its power. In the opinion of the court, there was no need for any further safeguard, by way of appeal to the court, against the government' s order. In Union of India v. Bhanamal Gulzarimal ,6 a very wide power to fix prices of iron and steel was upheld. Cl. 11-B of the Iron and Steel (Control) Order, 1941 authorised the controller to fix maximum prices for sale of the commodity. The prices could differ for iron and steel obtainable from different sources and could include allowances for contribution to, and payment from, an equalisation fund established by the controller. The controller' s power was held not to be uncanalised, unbridled or unguided as the policy had been laid down in S. 3 of the parent Act (the Essential Commodities Act) under which the order was made. It was argued that while in Dwarka Pd. there was a price-fixing formula, there was no such formula here. The court held that it would be unreasonable to suggest that, in the absence of such provisions as were to be found in Dwarka Pd., Cl. 11-B of the Iron and Steel (Control) Order should be struck down. In Premier Automobiles v. Union of India ,7 the Supreme Court considered the concept of fair price under S. 18-G of the Industries (Development and Regulation) Act, 1951, in relation to fixation of car prices. The Supreme Court explained that it "takes in all the elements which make it fair for the consumer leaving a reasonable margin of profit to the manufacture without which no one will engage in any manufacturing activity." In this case, the court asked the government to review car prices every six months. In Shree Meenakshi Mills v. Union of India ,8 a case dealing with fixation of yarn prices, the court refused to intervene because the price fixed had not been shown to be "arbitrary" or "so grossly inadequate that it not only results in huge losses but also is a threat to the supply position of yarn." Merely because some producers lose some money for some time, the price fixed does not become unreasonable, for the purpose of price-fixation is not only to consider the profit of the manufacture but also to hold the price line. Trade and commerce undergoes periods of prosperity and adversity because of economic, social or political factors. In Saraswati Syndicate,9 the court again rejected the writ petition challenging an order fixing ex-factory price of sugar. The order was

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issued under Cl. 7 of the Sugar (Control) Order, 1966. Under Cl. 7, certain elements have been laid down to be taken into consideration in fixing sugar price. The court ruled that the price fixed was not shown to be inadequate. The court would not interfere if the basis adopted for fixing the price is not shown to be so patently unreasonable as to be in excess of the price-fixing power. An order gave power to the controller to fix the price of ice. The order contained a formula for the purpose containing four items, viz. : (i) cost of raw materials; (ii) processing charges; (iii) establishment and other incidental charges; (iv) reasonable margin of profit. The court upheld the formula on the ground that it gave enough, clear and effective guidelines to the controller to fix prices, and it excluded any chance of capricious or arbitrary fixation of price for the manufacturers.10 On the whole, it appears that in the matter of price-fixing, the Administration enjoys a good deal of flexibility and it is extremely difficult to challenge successfully in a court a price-fixing order. Wide and vague factors laid down in the statutory provisions for the guidance of the concerned administrative authority have been upheld. Even a general statement of policy in the parent Act was accepted in Bhanamal11 as providing a sufficient safeguard against administrative discretion. The basic reason for this appears to be that considerations entering into the area of price-fixing are mainly economic in nature which the courts can evaluate only superficially and most of the time they defer to administrative judgment in this regard. Also, the courts lean towards the interests of the consumer rather than that of the manufacturer. The Supreme Court' s reluctance to interfere with a price control order has been expressed thus : "In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid."12 In price-fixing the courts concede a good deal of discretion to the Administration. The courts do not insist on any procedural safeguards in this area. It may be conceded that there is less danger of abuse of power by the executive and of administrative discrimination in the case of price-fixing which is regarded as a legislative function and, thus, the order is one of general applicability than in the case of licensing where the action of the Administration being administrative in nature is individualized.13 In Deepak Theatres, Dhuri v. Union of Punjab , the Supreme Court has ruled that the power to fix rates of admission to cinema theatres can be validly conferred on the Administration vis-a-vis Art. 19(1)(g) as such a power is clothed with public interest.14 In 1957, the Central Govt. notified fertilisers (including urea) as an "essential commodity" under the Essential Commodities Act, 1955. Through Fertiliser (Control) Orders, the Govt. fixed the maximum retail price of fertilisers to be complied with by the dealers, manufacturers etc. which caused losses to manufacturers. Hence, the Govt. constituted the Marathe Committee which suggested an intricate system of fertilizer subsidies known as the "Retention Price Scheme" which the Govt. decided to introduce. The Scheme was devised to determine the appropriate subsidy for fertilizer manufacturers. The subsidy was to be calculated as the difference between the "retention price" and the maximum retail price. A detailed formula prescribed under the Scheme determined the retention price. It was contended that the Scheme was statutory so it could not be given retrospective effect. The Supreme Court agreed with the High Court view that it was nothing but an administrative order and could be modified with retrospective effect.15 11. ARTS. 21 AND 22 : PERSONAL LIBERTY AND PREVENTIVE DETENTION Art. 21 say : "No person shall be deprived of his life or personal liberty except according to procedure established by law". According to the Supreme Court in Maneka Gandhi v. Union of India , Art. 21 envisages "reasonable, fair and just procedure."16 According to the Supreme Court in In re the Special Courts Bill, 1978, the procedure must be "right and just and fair and not arbitrary, fanciful or oppressive otherwise it will be no procedure at all and the requirement of Art. 21 would not be satisfied.17 Formerly, there was no law regulating the issue of passports for leaving India and going abroad. The issue of passports was entirely within the discretion of the executive, and that discretion was unguided and unchannelled. In Satwant,18 the Supreme Court held by a majority that the expression "personal liberty" in Art. 21 takes in the right of locomotion and travel abroad and under Art. 21, no person can be deprived of his right to go abroad except according to procedure established by law, and since no law had been enacted

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regulating or prohibiting the exercise of such right, the refusal of passport was in violation of Art. 21. This led to the enactment of the Passports Act, 1967. Strange though it may seem, the Constitution of India visualizes the possibility of a law of preventive detention as a peace-time measure.19 Preventive detention has not been unknown in other democratic countries like England and Canada, but there recourse has been had to it only in war time. In India, however, with all the emphasis on individual liberty and Fundamental Rights, it has been found necessary to resort to preventive detention even in peace time because of unstable law and order situation. Law for preventive detention can be made by Parliament exclusively for reasons connected with defence, foreign affairs or the security of India,20 and by Parliament and state legislatures concurrently for reasons connected with the security of a state, maintenance of public order, or maintenance of supplies and services essential to the community.21 Under its residuary power, Parliament can legislate for preventive detention on any other ground.22 Clauses (4) to (7) of Art. 22 provide some protection to the individual in preventive detention by requiring the law providing for preventive detention to contain a few procedural safeguards mentioned therein. Cl. 5 of the Article provides that the detaining authority "shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order." It is necessary to give the grounds on which the order of detention has been made against a person otherwise he may remain in custody without having the least idea as to why his liberty has been taken away. This is considered as an elementary right in a free democratic country. Art. 22(5), confers on the detenu the right to make a representation, but not a right of being heard orally, or through a lawyer, or to lead evidence.23 From this, the Supreme Court has implied an obligation on the part of the Government to consider the detenu' s representation at the earliest opportunity.24 The efficacy of Art. 22(5) has, however, been whittled down by Art. 22(6) which permits the detaining authority, while communicating the grounds of detention, not to disclose such facts as it considers to be against public interest to disclose. The Supreme Court has held that there is nothing wrong in the detaining authority placing these facts before the advisory board even though it does not supply the same to the detain in public interest.25 For preventive detention for a longer period than three months, Art. 22(4) provides the safeguard of an advisory board consisting of persons qualified to act as High Court judges. No person can remain in preventive detention unless the board has reported before the expiration of three months from his original detention that there is, in its opinion, sufficient cause for his detention. The function of the board is to determine not the period of detention but only whether the detention is justified or not.26 Under Art. 22(7)(e), Parliament can by law prescribe the procedure to be followed by the advisory board. However, the safeguard of an advisory board can be diluted as Art. 22(7)(a) authorises Parliament to prescribe by law the circumstances under which, and the classes of cases in which, a person may be detained for over three months without reference to an advisory board. It has been held that it is necessary for Parliament to lay down both the circumstances and the classes of cases in which a person can be detained for longer than three months; it is not sufficient if only one of these--either the cases or the circumstances is laid down.27 From the above, it is clear that Art. 22 permits the bestowal of a large amount of discretion on the Administration to order preventive detention. Accordingly the area of preventive detention is very much administrative ridden. There are several laws authorising preventive detention on various grounds. A common feature of all these laws is to confer a very broad discretion on administrative authorities to make orders of preventive detention with minimal procedural safeguards. It is judicially established that the making of an order of preventive detention can be left entirely to the subjective satisfaction of the executive without the legislature setting up an objective standard or test for the purpose.28 A law of preventive detention cannot be faulted on this ground so long as it provides for the safeguards laid down in Art. 22(4) and (5). The reason is that this type of detention is regarded not as punitive but preventive. It is resorted to prevent a person from committing certain prejudicial activities. Preventive detention is based on suspicion or anticipation and not on proof. The control of the judiciary over preventive detention is only marginal. The courts cannot substitute their own satisfaction for that of the detaining authority. They are confined to reviewing an order of detention like any other discretionary order on such grounds as mala fides, irrelevant or

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extraneous considerations, non-application of mind by the detaining authority, a matter considered in another chapter.29 The courts can also scrutinise the order to see whether the authority has complied with the prescribed procedure,30 or kept itself strictly within the confines of the law.31 The Courts can also examine the grounds from the point of view of their "adequacy to make a representation"-whether the grounds are vague or indefinite so as to make it difficult for the detenu to make adequate representation;32 or whether the particulars furnished to him are sufficient to enable him to do so;33 and further, whether more than reasonable time has been taken in furnishing the grounds to the detenu?34 It is now judicially accepted that a law of preventive detention must not only fall within Art. 22 but must also fulfil the requirements of Arts. 21, 19 and 14.35 Accordingly, the National Security Act, 1980 was challenged on several grounds in A.K. Roy.36 According to Ss. 3(1) and (2) of the National Security Act orders of preventive detention can be made if the Central or the State Government is satisfied that it is necessary to do so to prevent a person from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, security of India, security of the state, maintenance of public order, or maintenance of supplies and services essential to the community. It was contended in A.K. Roy that the various phrases which occur in the Section, such as "defence of India", etc., are so vague, general and elastic that even conduct which is otherwise lawful can be comprehended therein depending upon the whim and caprice of the detaining authority. These expressions have been picked up straightaway from the relevant entries of the Constitution without any attempt being made at precision or definition. The vagueness of these expressions confers "uncontrolled discretion on the detaining authorities to expand the horizon of their power to detain, to the detriment of the liberty of the subject." The Supreme Court accepted the proposition that "the vagueness and the consequent uncertainty of a law of preventive detention bears upon the reasonableness of that law" for a person "cannot be deprived of his liberty by a law which is nebulous and uncertain in its definition and application". Nevertheless, the Court refused to hold the Act invalid on that ground. The various expressions used in the Act "are not of any great certainty or definiteness" and relate to concepts "which are difficult to encase within the strait-jacket of a definition." These concepts are not capable of a precise definition but they "do not elude a just application to practical situations" and the courts must strive to give to these concepts a "narrower construction" than what the literal words suggest. The Act must be restricted in its application to as few situations as possible and it is on this unstated premise that the constitutionality of S. 3 may be upheld. Otherwise, a law of preventive detention, if construed liberally, is fraught with grave consequences to personal liberty as the various clauses used in S. 3 "are fraught with grave consequences to personal liberty if construed liberally." However, the expression concerning "maintenance of supplies" was found to be vague in so far as it was not made clear as to which supplies or services were regarded essential to the community. In the absence of a definition of "supplies and services essential to the community," the detaining authority could extend the application of this clause to any commodities or services which it regarded essential to the community. The clause was thus capable of wanton abuse. The Court thus ruled that no person would be detained under the clause unless, "by a law, order or notification made or published fairly in advance, the supplies and services, the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed, are made known appropriately, to the public." NSA confers power to detain persons on the district magistrate or commissioner of police. This was challenged as wholly unreasonable. But the court refuted the challenge by saying that the law contains certain safeguards subject to which only these officers can exercise the said power, such as, (i) the State Government can give such a power to these officers for three months at a time, if the government is satisfied that having regard to the prevailing circumstances in an area it is necessary to empower them to pass orders of preventive detention; (ii) they can pass orders only on three grounds, viz., security of state, public order, essential supplies and services; (iii) the officer concerned has to report forthwith the fact of detention to the State Government; and (iv) no such order of detention can remain in force for more than 12 days unless approved by the Government. In view of these in-built safeguards, the power conferred on the district magistrate or commissioner of police to pass orders of preventive detention cannot be said to be excessive or unreasonable.37 The Court also did not accept the argument that the procedure of the advisory board constituted for reviewing an order of preventive detention was unreasonable. Firstly, the fact that the detenu has no right to

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consult a lawyer or to be defended by him, does not make the procedure "unfair, unjust or unreasonable", since the Constitution itself contemplates that such a right should not be made available to him. This is subject to the rider that if the detaining authority was represented through a legal practitioner the detentu will have such a right under Articles 14 and 21.38 Secondly, the detenu cannot claim the right of cross-examination of witnesses in proceedings before the board; since the detention is based not on proved facts but on the subjective satisfaction of the detaining authority, the proceedings of the board have to be structured differently from the proceedings of a quasi-judicial body.39 Thirdly, it was held that the detenu can lead evidence, oral or documentary, before the board in order to rebut the allegations made against him.40 12. ADMINISTRATIVE DISCRIMINATION AND ARBITRARINESS One facet of Art. 14 has already been considered above, viz., that when a statute confers too broad and unregulated discretionary power on an authority, the statute itself may be held void under Art. 14. Now, we consider another fascinating dimension of the equality clause developed by the courts over a period of time, viz., it illegalises discriminatory or arbitrary action by the Administration. Art. 14 has been judicially interpreted as embodying a guarantee against arbitrariness and discrimination. The situation arises when the statute itself does not suffer from the vice of excessive delegation of discretionary power, but the authority entrusted with the discretion under the statute acts in a discriminatory or arbitrary manner, it treats equals differentially, or it may not follow the policy or the principle laid down in the Act to regulate its discretion. In such a situation, the charge of violation of the equal protection clause may be laid against the Administration, and its action quashed under Art. 14. The court quashes an exercise of discretionary power in a discriminatory or arbitrary, manner, as discrimination or arbitrariness is the antithesis of Rule of Law.41 This ground has become quite significant in the Indian Administrative Law as the courts are more forthcoming and willing to hold administrative action invalid on the ground of discrimination or arbitrariness under Art. 14, the reason being that here the court quashes the specific and individual administrative order and not the law under which it is made, and that is comparatively easier for the court to do. Consequently, in course of time. Art. 14 has evolved into a very meaningful guarantee against any action of the Administration which may be arbitrary, discriminatory or unequal. The classic case on the point of discrimination in administrative action is Yick Wo v. Hopkins , an American case.42 By an ordinance, the City of San Francisco made it unlawful to carry on a laundry, without the consent of the board of supervisors, except in a brick or stone building. While administering the law, it was found that 200 Chinese launderers were denied permission by the board, even though they had complied with all the requisite conditions, while 80 non-Chinese, under similar circumstances, had been permitted. The matter was brought before the Supreme Court by two Chinese launderers. The Court held that the ordinance in question had been administered with "a mind so unequal and oppressive as to amount to a practical denial by the State" of equal protection of laws. The Court went on to state : "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." This principle has been applied in India as well. Art. 14, it has been stated, secures all persons in India "not only against arbitrary laws but also against arbitrary application of laws" and that it ensures non-discrimination in state action both in legislative and administrative spheres.43 The equality clause secures "every person against arbitrary discrimination whether occasioned by the express terms of the statute or by their improper application through duly constituted agents."44 "Equal protection clause can be invoked not merely where discrimination appears on the express terms of the statute itself but also when it is the result of improper or prejudiced execution of the law."45 When administrative discretion is conferred subject to a standard or policy declared in the Act (which makes the Act valid under Art. 14),46 then discretion exercised in disregard of the standard or policy can be challenged under Art. 14.47 As a general proposition, it may be stated that any differential governmental action not based on any rhyme or reason can be characterised as discriminatory and so hit by Art. 14. There is no such thing as unlimited jurisdiction vested with any judicial or quasi-judicial forum. An unfettered

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discretion is a sworn enemy of the constitutional guarantee against discrimination unlimited jurisdiction leads to unreasonableness. No authority, be it administrative or judicial has any power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons thereof.48 Some of the situations in which administrative action has been quashed as being discriminatory under Art. 14 may be noted here for illustrative purposes : the State Government, while exercising its power of allotting quota of certain raw material in short supply to small scale industrial units, granting the same to some units but denying it to the petitioners, though they were similarly situated;49 the government terminating the services of a temporary government servant though he was senior to a few others in the same position who were retained and was similarly situated;50 retiring one employee at the age of 58 years but others at 60 years;51 the excise commissioner banning the sale of liquor at a particular club but not in other clubs in a similar situation;52 the government raising the retirement age of civil servants through a memorandum but not giving the benefit of the same to a particular civil servant;53 the wage board for working journalists classifying the newspapers and news agencies into seven classes on the basis of gross revenues but placing a particular newspaper in a higher category than the one under which it fell under the classification;54 the law requiring the licensing authority while granting licences to give preference to co-operative societies in certain circumstances, but the authority acting on the direction of the government granting licence only to a specified co-operative society to the exclusion of others and, thus, creating monopoly in its favour.55 A Tamil Trust made an application to the Government of Andhra Pradesh seeking permission to establish an engineering college for the benefit of the Tamil minority in the State. The Government rejected the application, but, at the same time, it granted permission to two other societies to establish private engineering colleges. The Supreme Court found in Vellore Educational Trust v. State of Andhra Pradesh 56 that the refusal by the Government to grant permission to Vellore Trust was "not at all tenable". Accordingly, the Court quashed the order of the State Government and directed it to reconsider the matter and dispose of the same in accordance with law. This is an instance of discriminatory governmental decision. Clause 6 sub-clause (2) of the Schedule read with Section 73 of the Madras City Improvement Trust Act, 37 of 1950, provided that the acquiring authority was not liable to pay the additional 15% market value under Section 23(2) of the Land Acquisition Act, 1894, acquired under the provision of the Madras City Improvement Trust Act, 1950. The provision depriving right to solatium under Section 23(2) of the Land Acquisition Act was struck down as offending the provisions of Article 14 of the Constitution of India and it was held that the owners of the land were also entitled to the statutory solatium under Section 23(2) of the Land Acquisition Act in consideration of compulsory acquisition of land. It was held that this was a clear case of discrimination which infringes the guarantee of equal protection of law and the provision which is more prejudicial to the owners of land compulsorily required, must be deemed invalid. The distinction is not supported by any rational classification having reasonable relation in the subject matter of the special provision and is not founded on any intelligible differentia.57 The Government of Bihar issued a notification under S. Section 6 of the Land Acquisition Act acquiring a large tract of land belonging to several owners for the purpose of constructing houses for low and middle income groups. Notices were thereafter issued to all of them to file their claims for compensation. Thereafter, the government released a small piece of land from acquisition proceedings as it belonged to an influential family. The Court held this act of the government violative of Art. 14 as being discriminatory in nature.58 The State Government took a policy decision not to grant permission for opening new medical colleges in the State. The Government rejected the applications of all institutions on that ground. At the same time, the Government permitted some other running medical colleges to increase their intake or split into two units. The High Court regarded the permission to split as indirectly granting permission to start new medical colleges and held this action of the government as illegal under Art. 14. The Court emphasized that the decisions of the government should always be fair. It cannot apply different yard-sticks in granting permission to some institutions and refusing the same to others.59 An applicant has no right to complain when concession is shown to junior officers, resulting discrimination in the matter as concession cannot be claimed as a matter of right.60 The selection committee called several candidates for interview for selection for the posts of readers in a university. Two candidates (A and B) did not turn up for interview. However, A was persuaded by the university authorities to appear for interview; A was interviewed and was selected. B, on the other hand, did not enjoy the benefit of a second persuasion to

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come for an interview; so, he did not appear before the selection committee and was thus not selected, although he was qualified for the post. The Supreme Court treated it as "unequal treatment of equals". Both the candidates were in the same category and so both should have been given a second chance to appear before the selection committee. One cannot be treated differentially from the other. Had the committee chosen to give an opportunity to B, as it did to A, he might have turned up for interview, and having regard to his high marks, might have also stood a good chance of being selected. Accordingly, the selection of A was quashed.61 Of the persons working in the same cadre and performing the same kind of work and duties, promotion of juniors in preference to the seniors who have all the requisite qualifications for promotion has been held to be discriminatory.62 A discretionary power is regulated and guided by statutory rule which does not offend Article 14.63 A statute may not make any classification of persons or things for the purpose of applying its provision but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of validity or otherwise of such statute the Court will not strike down the law out of hands only because no classification appears on the face or because a discretion is given to the Government to make selection or classification but will go on to examine and ascertain if the statute had laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for delegation of arbitrary power to the Government so as to enable it to discriminate between persons or things similarly situated and that therefore, discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law.64 Discretionary power without any guidance to appoint candidate to any cadre is discriminatory.65 Even when a statute confers power on an authority without expressly providing for guidelines and any corrective machinery such as appeal or revision, the same may be inherent or inbuilt in the provision itself so as to save it from the vice of arbitrariness and unreasonableness.66 A resolution passed on 22-8-1993 by the Bar Council of India barring enrolment as an Advocate to persons who have completed 45 years of age is discriminatory and the Rule prescribing age limit of 45 years for enrolment as Advocates is also ultra vires Clause (ag) of Section 49(1) of Advocates Act, 1961. The Bar Council of India cannot debar persons belonging to certain age group from being enrolled as advocates.67 The son of a deceased employee of the West Bengal State Electricity Board was refused appointment on compassionate grounds as the employee had died a natural death within two years before his date of superannuation and the rules provided for appointment on compassionate grounds to the dependants of only those employees who died due to an accident or were totally disabled due to an accident arising out of and in the course of employment and not to the dependants of employees dying a natural death within the stipulated period. The Rules were challenged on the ground of the classification being discriminatory to which the High Court agreed. On appeal the Apex Court concluded that the classification was not discriminatory.68 An employee alleged invidious discrimination between him and others in imposing punishment on similar charges. The Supreme Court declined to accept the plea and observed that imposition of punishment in a given case depends upon certain factors such as the ground of charge, antecedents and similar aspects.69 The U.P. Sugarcane (Purchase Tax) Act, 1961, levied a tax on the purchase of sugarcane by sugar factory. S. 14(1) conferred power on the State Government to grant, by notification in the gazette, remission in whole or part form the tax to any factory if it was satisfied that it was necessary to do so in the public interest, with a view to-.(a) encourage or regulate the supply of sugarcane to, or its purchase by factories; or (b) encourage the establishment of new factories; or (c) assist factories established after the crushing season 1957-58 and purchasing sugarcane yielding low sugar recovery. The Government granted remission in the tax to some factories but not to the petitioners and a few other factories situated in the east zone. The order was challenged as discriminatory under Art. 14. Rejecting the contention in Tulsipur Sugar Co. Ltd. v. State of Uttar Pradesh ,70 the Supreme Court ruled that S. 14(1) conferred a discretionary power on the government; it did not make it obligatory on it to grant exemption or remission to all factories. By granting the remission only to sugar factories purchasing sugarcane of low recovery, the State Government did not violate Art. 14. Nor was there any contravention of S. 14(1)(a). The question of contravention could arise if the grant of remission were founded on a ground extraneous to S. 14. In the instant case, the government' s notification clearly showed that the remission was granted "with the sole object of encouraging and regulating the supply

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of sugarcane to these factories". Under S. 25(2),Customs Act, the Central Government granted exemption to the State Trading Corporation from payment of customs duty on import of edible oil, but not to other importers. The Supreme Court ruled in M. Jhangir Bhatusha v. Union of India 71 that the differential government action was not discriminatory as it was based on a reasonable basis. The Court observed :72 "Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under S. 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons."

The Kerala High Court struck down a government order on the ground of arbitrariness and discrimination. 62000 M.T. of raw cashewnuts were procured by the government agent, the Kerala State Co-operative Marketing Federation, under the monopoly procurement scheme sanctioned under the Kerala Raw Cashewnuts (Procurement and Distribution) Act, 1981. Section 11(2) of the Act envisaged that the agent would allot the raw cashewnuts procured by him on a pro rata basis to various processors. The government fixed the sale price of raw cashewnuts at Rs. 7.55/- per kilogram. Because of the high price thus fixed, the processors failed to lift the quota allotted to them. The stock of cashewnuts was then allotted to the Kerala State Cashew Development Corporation, a government agency, at a reduced price. The cashewnut manufacturers and factory owners offered to purchase the entire remaining quantity at a price Rs. 4.50/per kg. or at a competitive price. Their offer was rejected by the government. They then challenged the government' s action in allotting the raw cashewnuts at a reduced price to the corporation as against their offer as being discriminatory and arbitrary. The High Court accepted their contention holding that the government agent could not sell raw cashewnuts except in the manner provided under Section 11(2) of the Act according to which the petitioners were entitled to their pro rata share. The corporation had no superior claim or better right to get the raw cashewnuts at a special reduced price. The action of the government was thus held to be clearly arbitrary and discriminatory under Article 14 of the Constitution.73 On the other hand, the Supreme Court has held that priority given to the Central or State Government in the transport of coal by railways as against coal merchants did not violate Article 14 of the Constitution.74 This preferential treatment is permissible under Section 27-A of the Railways Act, 1890. Moreover, the coal merchants carried on business of coal and could sell it to anyone intending to purchase but those given priority in transportation like government and others were transporting coal to satisfy fixed goals to subserve needs of the public at large and this provided an intelligible differentia between the two classes. When an administrative action, even if interim in nature, has a serious effect on the entire activity of a person, the order passed in such a case must be communicated, otherwise the action may be quashed on the ground of arbitrariness. In Liberty Oil Mills,75 a secret circular was issued by the controller of imports in exercise of powers under clause 8-B of the Imports (Control) Order, 1955, directing the licensing authorities to keep in abeyance for six months all applications received from 61 concerns for grant of import licences, etc. The circular also directed the licensing authorities to inform the applicants, whenever they made enquiries, that their applications were under consideration. There were some allegations of misuse of import licences against these parties; these allegations were being investigated and the said circular was issued as an interim measure pending these investigations. The order of abeyance was not communicated to the concerned parties. The Supreme Court ruled that India was a democratic country which was governed by rule of law. It would therefore be most arbitrary and clear violation of Articles 14 and 19(1)(g) of the Constitution not to communicate to the affected parties the decision to keep their applications in abeyance. There was no need to assign the reasons for the action taken, but the action must be communicated to the affected persons otherwise they could not make any representation against the order and this would violate the rules of natural justice.76 Permits of some permit holders for routes which overlapped with the notified routes were curtailed. But there were other permit holders in the same class having stage carriage permits for certain routes parts of which were overlapping with the notified routes and yet these permits were not curtailed and they continued to ply their stage carriages on the notified routes. The Court ruled in Vishnudas Hundumal v. State of Madhya

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Pradesh 77 that there was gross discrimination between the transport operators in the same class in that some had their permits remaining intact with right to ply their vehicles on the notified routes and some others whose permits were curtailed. This was discrimination between persons in the same class. The Court declared that curtailment of the permits of the petitioners would have no effect and, consequently, all operators similarly situated were similarly treated. The Court observed : "When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of the citizen. When denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners, the Court has to remove the discrimination."

In Common Cause, A Registered society v. UOI, 78 the Supreme Court found that the petrol pumps were allotted without fixing any criteria, without keeping any guidelines in view and without inviting any applications and held that the allotment was wholly arbitrary and discriminatory. It was held that in the distribution of State largesse the procedure/criteria must be transparent, just, fair and non-arbitrary, the lack of which denotes nepotism and arbitrariness. It was further held that even while acting within the guidelines, the authorities cannot enjoy absolute discretion to pick and choose in an arbitrary and discriminatory manner. The Court set aside the allotments and directed to lay down a procedure as observed. The selection committee selected a candidate as per rules for the post of Principal but the Managing Committee did not issue him the appointment letter on the ground that he was selected under the pressure from Kurukshetra University Authorities though it had no material for coming to such conclusion. The relevant rules did not permit the Managing Committee to sit in judgment over selection made by the Selection Committee. The Apex Court held that the view taken by the Managing Committee was wholly arbitrary.79 In New India Public School v. HUDA, 80 the Apex Court held that the public authorities are required to make necessary specific regulations or valid guidelines to exercise their discretionary powers; otherwise in the allotment of land/flats/plots, the statutory procedure would be by public auction. In the absence of such statutory regulations exercise of discretionary power to allot sites to private institutions or persons was not correct in law. However, in Style (Dress Land) v. Union Territory, Chandigarh ,81 the Supreme Court, instead of directing to frame rules, held that in absence of rules, the Government cannot act like a private individual in imposing the terms and conditions of leases including enhancement of rent with the object of extracting profits from its leases. The Governmental actions are required to be fair and reasonable and free from consideration which could be termed arbitrary or unauthorised or discriminatory. Non-arbitrariness, being a necessary concomitant of the rule of law, Governmental actions must be guided by reason and not humour, whim, caprice on personal predilections of the persons entrusted with the task and exercise of all powers must be for the public good instead of being an abuse of powers. In grant of mining lease of a property of the state, the state Government has a discretion to grant or refuse to grant any prospective licence or licence to any applicant but the State Government is required to exercise its discretion subject to the requirements of the law.82 When denial of equality is based on comparative evaluation of two persons or situations, it may not be easy to succeed in having an action quashed. The attitude of the courts generally is to sustain administrative action against attacks on the ground of discrimination. The courts start with the presumption that the administration of a particular law has not been discriminatory. Further, abuse of power is not easily assumed where discretion is vested in high officials.83 It is for the complainant to prove that there has been an abuse of power, and this is a heavy burden to discharge though the courts have said that the onus is not to prove to the hilt but such as will render the absence of bona fides reasonably probable. If in a particular case the order is impeached as discriminatory, and the petitioner points out the circumstances which prima facie and without anything more would make out the exercise of the power discriminatory qua him, it will be incumbent on the authority to explain the circumstances under which the order has been made. In Government Branch Press v. D. B. Belliappa, 84 the Supreme Court stated that where the individual makes the charge of unfair discrimination with specificity, it is "the duty of the authority to dispel that charge by disclosing to the court that reason or motive which impelled it to take the impugned action." The court will then scrutinise the circumstances of the case with regard to the object sought to be achieved by the enactment and come to its own conclusion with respect to the bona fides of the order.85 The administrative authority concerned has a good defence if it can prove bona fides.86

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Arbitrariness is a broader concept than discrimination. To determine arbitrariness, there is no need always of comparative evaluation of two persons. Arbitrariness can arise even when administrative action is taken against one person alone. The courts treat an arbitrary exercise of power in itself as a negation of the concept of equality embodied in Art. 14 and, accordingly, strike down such action. When a democratic government deals with the public, it cannot act arbitrarily at its sweet will, and like a private individual, deal in any manner it likes. The concept of arbitrariness was concretised by Bhagwati. J., in Royappa.87 He said : "From a positivistic point of view, equality is antithetic to arbitrariness". Art. 14 strikes at arbitrariness in state action and thus ensures fairness and equality of treatment in state action for arbitrary action necessarily involves negation of equality. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law, and is therefore violative of Art. 14 which requires that state action must be based on valid relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or irrelevant considerations because it would amount to denial of equality. An arbitrary decision is per se violative of Art. 14. Thus, Art. 14 strikes at arbitrariness in administration even if the law under which the action is taken is valid. This judicial approach has given a highly activist dimension to Art. 14 in the area of administrative process. This thesis was reaffirmed and elaborated by the Supreme Court in Maneka Gandhi.88 Recently, the Supreme Court has again emphasized that the exercise of discretionary power should not be arbitrary. "The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits.... If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles or rules, not by whim or fancy or caprice of the authority."89 Art. 14 is being used by the courts to achieve this objective, and to control discretionary decisions of the Administration, to some extent, as will be clear from the following discussion. Any decision which is arbitrary, unreasonable or discriminatory may be quashed by the Courts by invoking Art. 14. This judicial trend has become very pronounced after the landmark case of Maneka Gandhi. Any penalty imposed on a person disproportionate to the gravity of the misconduct would be violative of Art. 14.90 Punishment must be in proportion to the misconduct, and if it is not so, it becomes arbitrary and unfair. When four students were involved in a fracas, three students who were guilty of serious misconduct were awarded a nominal punishment, but the fourth student, who acted in self defence, was awarded harsher punishment. The Court called it "arbitrary and discriminatory." True that the quantum of punishment to be awarded to a student is within the jurisdiction of the university, but it is not open to the university to act in an arbitrary and discriminatory manner.91 The Maharashtra Government exempted throughout the State the film Gandhi from the liability to pay entertainment tax subject to the condition that the exemption was limited to "four prints in Greater Bombay and 29 prints in other districts, i.e., one print per district." This restriction was challenged as arbitrary and discriminatory. The High Court ruled that when a film was so exempted, every print of that film "is ipso facto exempted", as every print of that film "fulfils an educational, cultural or social purpose." The Court observed :92 "When, as here, the exemption is restricted to only a number of prints of a film which is exempted from payment of entertainment duty, one has the unacceptable position that some prints of the film fulfil an educational, cultural or social purpose and some do not. To restrict the number of prints of a film which are entitled to exemption from entertainment duty is, accordingly, to act arbitrarily and irrationally."

In A. L. Kalra v. P. & E. Corpn. of India Ltd. ,93 the appellant was removed from service on the ground of misconduct. The appellant had taken house building advance from the employer but did not purchase a plot of land within two months as required under the rules nor did he refund the amount despite reminders. His salary was withheld and penal interest was levied for the recovery of the advance. He then took another advance to purchase a motor cycle but he did not purchase it within a month as required by the rules. He did however purchase a scooter and submitted the necessary documents which were accepted. These defaults by the appellant were considered by the respondent corporation as misconduct and it ordered an inquiry against him after receiving his explanation. The inquiry officer found him guilty of the alleged misconduct on the charges of taking advance, not utilizing the same for the purpose for which it was taken and not refunding the amount despite reminders. The report of the enquiry officer was, however, in just two paragraphs and it did not indicate by what process he reached his conclusion or what evidence appealed to him. No reasons

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were given by the inquiry officer to support his conclusion. The finding was an ipse dixit of the inquiry officer. On the basis of the inquiry report, the appellant was removed from service. He challenged his removal as being arbitrary under Article 14 of the Constitution. The Court noted that the conduct of the appellant, on the basis of which he was removed was not mentioned as a misconduct under the rules of the respondent. Although the conduct of the petitioner might have been unbecoming of the status of an officer like him yet that could not be the basis of his removal in the absence of any specific rules to that effect. Desai J. observed in this regard : What is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not amenable to objective evaluation. Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post facto interpretation of some incident may not he camouflaged as misconduct.94

The order of removal of the appellant was, therefore, held to be arbitrary and the impugned order was quashed. Art. 14 has thus become a great source of power in the hands of the courts to quash administrative action on the ground of arbitrariness and/or discrimination. In the matter of issue of passports, the Supreme Court held that if there was no law governing the issue of a passport by the executive, and it was entirely a matter of discretion for the executive to issue it or not, it would be violative of Art. 14.95 The Court observed : ". . . in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it. Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive." The Kerala Education Rules provide for grant of permission for use of school buildings for holding public functions arranged by the government or for any other purpose. Such permission can be granted by the district educational officer. The Kerala High Court ruled in T. V. Anandan v. State ,96 that the concerned officer cannot refuse permission at his sweet-will and pleasure. The scheme of the provisions is such that granting of permission is the rule and refusal of the permission is an exception. "Permission cannot be refused arbitrarily". The court emphasized that the government and its officers have a duty to act in a just and fair manner. "Government cannot pick and choose the persons with whom they will deal". When government is giving permission to some to use school buildings, it cannot deny the same to others arbitrarily. "The discretion in this regard should not result in discrimination". In the instant case, permission was denied to the R.S.S. The court ruled that so long as the R.S.S. was allowed to continue its activities in the State, to deny to it the privileges like the use of school buildings for public functions, which other organisations are allowed, will result in hostile discrimination. Government cannot discriminate between organisation and organisation and prevent some from using government school buildings for their public functions. To do so is to violate Article 14. Government has no power to single out the R.S.S. and deny permission when others are given the permission. When a primary school started by a private body applied for recognition, it was refused by the concerned officer because of a resolution of the government saying that recognition could not be granted till the concerned school has its own adequate building. The Gujarat High Court quashed the resolution in Santoshi Education Trust v. State 97 invoking Article 14. The court emphasized that the equality guarantee enshrined in this Article is infringed if an unreasonable or arbitrary condition is imposed. It would result in hostile discrimination between applicants who own buildings to run their schools and those who do not own their buildings but have adequate rented premises for the purpose. The court found no nexus between the classification made by the government for the purpose of granting recognition and the object. If suitable accommodation is available, what difference dose it make if it is rented or owned. The court said that the pre-condition insisted upon for granting permission and according recognition was both unreasonable and arbitrary and it would result in hostile discrimination. It created a privileged class. The resolution and the consequent refusal to grant permission were quashed by the court. An order to acquire a large tract of land belonging to several persons was issued by the Bihar Government. Later, the government exempted a piece of land belonging to one family from the purview of the order. The

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Supreme Court ruled that the release of the piece of land was "a pure and simple act of favouritism" without any justification. The Court held the release bad and non est under Art. 14.1 The Supreme Court has ruled in India Cement Ltd. v. Union of India 2 that the Central Government can fix one uniform retention price for all cement manufacturers throughout India in spite of the differences in the production cost. In the instant case, the Court has ruled that the price was fixed on a rational basis taking into account all relevant data and factors including acceptance by the cement industry of one uniform retention price for the entire industry. Thus, the argument of discriminatory treatment of cement manufacturing units was rejected. An example of invalidation of an administrative action under Art. 14 is furnished by the Raghuvanshi case.3 The Supreme Court quashed the dismissal of a teacher in a municipal school because of his past association with the RSS much before he joined the municipal service. The Court ruled : it offends the fundamental right guaranteed by Art. 14 to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual' s service. The petitioners were acting as the trustees of a dharmshala. The State Government dispossessed them by an executive order passed without the authority of law. The Supreme Court quashed the order saying that such an action taken by the state officials would be destructive of basic principles of rule of law.4 Because of the difficulty to establish discrimination, many petitioners have failed in a number of cases. The leading case in this area is Ram Krishna Dalmia v. Justice Tendolkar .5 A commission of inquiry was appointed into Dalmia affairs under S. 3 of the Commissions of Inquiry Act, 1952. S. 3 of the Act as well as the notification appointing the commission were challenged as discriminatory. S. 3 was held valid because the discretion conferred thereunder was not unguided as it was to be exercised subject to the policy and conditions laid down in the Act, viz., a commission could only be appointed to inquire into a definite matter of public importance. Against the notification, it was contended that the petitioner and his companies had been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The court held that Parliament having left the selective application of the Commissions of Inquiry Act to the discretion of the government, the latter must act on the information available to it and the opinion it formed thereon. It is to be presumed, until the contrary is proved, that the government would act honestly, properly and in conformity with the policy and the principles laid down by Parliament. The court further held that the quality and characteristics said to exist in the petitioners' companies were so peculiar or unique as to constitute a good or valid basis on which the petitioners and their companies could be regarded as a class by themselves. The facts disclosed "afford sufficient support to the presumption of constitutionality of the notification" and "it is for the petitioners to allege and prove beyond doubt that other persons or companies similarly situated have been left out and the petitioners and their companies have been singled out for discriminatory and hostile treatment." The petitioners failed, in the opinion of the court, to discharge this onus. In State of Jammu and Kashmir v. Bakshi Ghulam Mohammad ,6 appointment of a commission of inquiry under S. 3 of the J and K. Commission of Inquiry Act to inquire into the acts of the former Prime Minister of the state was challenged. The inquiry was directed against the acquisition of wealth by him by misuse of his official position. The ground of attack was that the inquiry was discriminatory as it was directed only against the Prime Minister and not the rest of his cabinet colleagues. Rejecting the argument, the Supreme Court pointed out that it would be strange if the inquiry into misuse of official position to acquire wealth by the Prime Minister were also directed against all the other ministers, for it could not be asserted that all ministers hand acquired wealth by these acts. The Prime Minister was, therefore, a class by himself and the classification had a rational connection with the setting up of the commission for the object was to find out whether the wealth had been acquired by the former Prime Minister by abuse of his position. Arbitrary and discriminatory action in such matters as selection, promotion, seniority, transfer and dismissal in service matters has been quashed by the courts. The State Government dismissed 1100 members of the police force for participation in an agitation. Later, the State Government reinstated 1000 of them to their original posts. There were no distinguishing features to distinguish the rest from those reinstated and who

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were thus the beneficiaries of state indulgence. The Court ruled that these persons "have been arbitrarily weeded out for discriminatory and more severe treatment than those who were similarly situated." The Court therefore directed reinstatement of these persons as well. All those who were similarly situated must be treated alike.7 In Prakash Chandra Agarwal v. State of Bihar ,8 the Bihar Public Service Commission held a competitive examination for appointment of munsiffs in the State. Some candidates who had secured less marks than the appellant were appointed. The Court treated this as a violation of Arts. 14 and 16. On the other hand, relaxation of rules so as to allow promotion on a temporary basis to upper division and selection grade clerks who had put in 20 years of service and had exhausted all chances of appearing at the subordinate accounts service examination, or had become ineligible to appear at the same was held to be not discriminatory.9 The government may change its executive policy with regard to promotions as there is no constitutional bar on the government from doing so, provided the government acts justly and fairly and without discrimination in changing the policy.10 The U.P. Government issued one omnibus general order terminating wholesale at one stroke the appointment of all government counsels functioning in all districts of the State. The Supreme Court declared the order arbitrary and quashed it in Shrilekha Vidyarthi v. State of Uttar Pradesh .11 The Court observed :12 "Arbitrariness is writ large in the impugned circular.... It gives the impression that this action was taken under the mistaken belief of applicability of "spoils system" under our Constitution and the cavalier fashion in which the action has been taken gives it the colour of treating the posts of DGCS as bounty to be distributed by the appointing authority at its sweet-will."13

The Court went on to observe further : It is now too well settled that every state action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Art. 14 of the Constitution and basic to the rule of law, the system which governs us.

In the absence of specific particulars in the writ application it is not open to the High Court to go into the question whether the Income-tax Officer has arbitrarily exercised his discretion.14 However, in Netai Bag v. State of W.B. ,15 the Supreme Court held that in absence of specific allegations of mala fides attributed to the opposite parties, it could not be said that mere violation of some alleged statutory provisions would render the State action to be arbitrary in all cases. Non-empanelment of an officer without giving any reasons in spite of his outstanding service record was held to be not arbitrary.16 (a) Right to be heard In certain situations, Art. 14 has been held to guarantee the right to be heard to a person who may be adversely affected by an administrative order. For example, the Cantonment Board granted permission to the respondent to make additions to his building. The Officer Commanding-in-Chief cancelled the permission after giving a hearing to the Cantonment Board. The respondent contended that she was also entitled to be heard by the O.I.C.I. because it was she who was adversely affected in the situation. The Supreme Court agreed with the respondent' s contention saying, " Audi alteram partem is a part of Article 14 of the Constitution" and that "there is a plethora of precedent which have expanded the ever expanding scope of Art. 14 of the Constitution to assert and maintain that no order shall be passed at the back of a person, prejudicial in nature to him, when it entails civil consequences."17 The Supreme Court observed in Tulsiram Patel :18 "The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Art. 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that Article. Shortly put, the syllogism runs thus : violation of a rule of natural justice results in arbitrariness which is

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the same as discrimination; where discrimination is the result of state action, it is a violation of Art. 14 : therefore, a violation of a principle of natural justice by a State Action is a violation of Art. 14. Art. 14, however, is not the sole repository of the principles of natural justice.. .

At another place the Court observed :19 The principles of natural justice are not the creation of Art. 14. Art. 14 is not their begetter but their constitutional guardian.

The Supreme Court has observed in D. K. Yadava v. J. M. A. Industries :20 Art. 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Art. 14 and the procedure prescribed by law must be just fair and reasonable.

S. 269 UB, Income Tax Act, provides for compulsory purchase of property by the income-tax authorities. It provides that when any property is ought to be transferred for over Rs. 5 lakhs, the appropriate authority may, for reasons to be recorded in writing, make an order for the purchase of the property at an amount equal to the amount of apparent consideration. The question was whether the person whose property was thus sought to be acquired compulsorily ought to be given an opportunity of being heard or not. The Supreme Court ruled in C. B. Gautam v. Union of India 21 that the requirement of a reasonable opportunity of being heard being given to the concerned parties, particularly, the intending purchaser and the intending seller must be read into the said provision. Before an order for compulsory purchase is made under S. 269 UD, the intending purchaser and the intending seller must be given a reasonable opportunity of showing cause against an order for compulsory purchase being made by the concerned authority otherwise the provision would be "seriously open to challenge on the ground of violation of the provisions of Art. 14 on the ground of non-compliance with the principles of natural justice." A statutory provision provided for suspension of the elected chairman of a municipal board, without giving him a hearing, pending an inquiry into the charges against him when he was given an opportunity of being heard. The provision was challenged as violative of Art. 14. Holding it valid, the Rajasthan High Court ruled in Jan Mohd. v. State 22 that suspension does not finally determine the matter; its sole purpose is that the person against whom serious charges of misconduct, flagrant abuse of powers and disgraceful conduct are levelled, may he refrained from causing further damage to the finances of the institution. An order of suspension is not by way of penalty; it only restrains the person affected from discharging his functions in a particular office for a certain period. Suspension may either be by way of punishment or by way of an interim measure. In the first situation, principles of audi alteram partem must be applied, but hearing need not be insisted upon in the second case. (b) Viva Voce Examination In Ajay Hasia v. Khalid Majid ,23 an interesting question was raised with respect to the process of selecting candidates for admission to educational institutions, viz., can the viva voce examination be regarded as a valid test for this purpose with reference to Art. 14? It was argued against the viva voce test that it could be discriminatory and lead to administrative arbitrariness as it is a highly subjective and impressionistic test and the interviewers could act arbitrarily and manipulate the results. The interview committee could discriminate between candidates at an oral interview. In the instant case, a large number of candidates applied for admission, to the Regional Engineering College. To test their suitability for admission, a written test was held and thereafter the candidates were given a viva voce test. It so happened that quite a few candidates who had secured very high marks at the written examination got very low marks at the viva voce, and were thus denied admission. On the other hand, there were some candidates who had got low marks at the written test but got high marks at the viva voce test, and thus succeeded in getting admission to the engineering college. These facts were cited as proof of discrimination. It was also argued that the viva voce test was not properly

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conducted as only 2 to 3 minutes were spent on each candidate. In Ajay Hasia, the question related to the selection of candidates for admission to an engineering college. The candidates had to take a written test as well as a viva voce test which carried 331/3 per cent of the total marks (100 marks for written test and 50 per cent marks for vivavoce examination). The Supreme Court ruled that viva voce examination could not be regarded as an irrelevant or irrational test for purposes of selection of candidates for admission. It is a supplementary method for assessing the suitability of candidates wherever test of personal traits is considered essential. This has been recognised in a number of earlier decisions.24 Therefore, the Court refused to accept the contention that the oral interview test by itself is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. However, the Court was, nevertheless, conscious of the possibility that such a test could be misused as it is subjective and based on first impression and its result is influenced by many uncertain factors. There are many deficiencies in such a test. Therefore, the Court prescribed several conditions subject to which such a test ought to be conducted so as to reduce the chance of arbitrariness in conducting interviews : (i) The first precaution to be taken, "in the matter of admission to colleges or even in the matter of public employment" is that the oral interview test should not be relied upon as an exclusive test but should be resorted to only as an additional or supplementary test. (ii) Great care should be taken to appoint persons of high integrity, calibre and qualification to conduct this test. (iii) The Court frowned upon attaching high relative value to the viva voce in the overall evaluation of a candidate for purposes of admission to a professional college. The court thus held that allocation of 33 1/3 per cent of the total marks to oral interview was plainly 'arbitrary' and unreasonable. The Court' s thinking was that not more than 15 per cent of the total marks ought to be allotted to the viva voce test and more than that would be arbitrary and unreasonable. On this point the Court observed :25 Now there can be no doubt that, having regard to the drawbacks and deficiencies in the oral interview test and the conditions prevailing in the country, particularly when there is deterioration in moral values and corruption and nepotism are very much on the increase, allocation of a high percentage of marks for the oral interview as compared to the marks allocated for the written test, cannot be accepted by the Court as free from the vice of arbitrariness.

The admission procedure in the instant case was thus held to be infected with the vice of arbitrariness because of the high percentage of marks allotted to the viva voce test. (iv) The Court also suggested that the viva voce test be conducted fairly and properly by persons of high integrity, calibre and qualifications. To take only 2 to 3 minutes on each candidate and to ask questions having no bearing on the factors, required to be taken into account for selection, is to make the viva voce process vitiated and make the selections on the basis of such a test as arbitrary. The Court has also suggested tape-recording of the interview. An allegation of mala fides26 against the interviewing committee was also made in Ajay Hasia. The Court found it to be a disturbing feature that in case of a large number of candidates selected, it was because of the marks obtained at the viva voce which tilted the balance in their favour though they secured much less marks than many others at the written test. Though the court entertained a strong suspicion that the marks at the viva voce might have been manipulated to favour some candidates, yet it did not accept the plea of mala fides saying that "suspicion cannot take the place of proof" to establish mala fides. Much more "cogent material" was needed to sustain the allegation of deliberate manipulation of marks at the viva voce examination with a view to favouring certain candidates as against the petitioners. Even though interview test was held to be vitiated, the court refused to set aside admissions because 18 months had already elapsed and this would cause great hardship to such students whose admission could not be questioned. The petitioners also could not be restored to the position as if they were admitted at the time. But the college had agreed to take in 50 best students of the batch (1979-1980) next year who could then get admission in addition to the normal intake of students. It will thus be seen from the Supreme Court' s opinion in Ajay Hasia that while the Court accepts the utility of the viva voce test up to a point for selection of candidates for admission to a course, it is also apprehensive that if too high percentage of marks is allotted to viva voce test, it might lead to misuse of power by the

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concerned authorities. Prescribing too high a percentage of marks for the viva voce test will thus be hit by the principle that conferment of too broad and uncontrolled discretion on administrative authorities is regarded as violative of Art. 14. Also, the Court has insisted that the viva voce test be conducted fairly or properly, otherwise the selection may be quashed under Art. 14 as being arbitrary or discriminatory. For selection of candidates for admission to the government medical college, the government prescribed, inter alia, a viva voce test carrying 30 per cent of the total marks. It was argued in Arti v. State of J&K ,27 that this high allocation of marks to the viva voce test was unreasonable and arbitrary. The average time spent on each candidate for the viva voce test was not more than four minutes. It was argued that in Ajay Hasia, the Supreme Court made a clear pronouncement that an allocation of more than 15 per cent of the total marks to the viva voce examination would be regarded as arbitrary and unreasonable and would thus result in constitutional invalidity. But that pronouncement was made after the selection process in Arti had been completed, and, therefore, the Court did not want to disturb the selection process in Arti. The Court did, however, impress on the State Government that "there is need to revise the marks ratio because of the very real risk future selections will face on this score." The court also drew attention of the government to the observations made by it in Ajay Hasia to the effect that the government should ensure that the selection committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.28 The Supreme Court has also approved interview as a component of the selection process for appointment' to public services.29 At a selection for the post of munsiffs, 25% of the total marks were allotted to the viva voce test. The question was raised whether this percentage could be regarded as high and hence discriminatory? The Supreme Court ruled in Lila Dhar v. State of Rajasthan 30 that the scheme of selection for the posts of munsifs could not be struck down on the ground that more than due weightage was given to the interview test. The Court held that selection was not rendered arbitrary and violative of Art. 14. The Court accepted that both written examination and interview test were essential features of proper selection, but the weight to be attached to both these tests could vary from selection to selection. For example, in case of admission to colleges, importance attached to interview test ought to be minimal, greater weight being attached to the written examination. The reason for this is that the candidate' s personality is in the formative stage and is yet to develop. This was laid town in Ajay Hasia. On the other hand, in case of services to which persons of mature personality need to be appointed, the interview test may be the only way to judge the suitability of the candidate, subject to the basic and essential academic and professional requirements being satisfied. Therefore, for entry to public services, the allotment of marks for the interview test may be higher than for admission to colleges. The Court further ruled that there could not be any rule of thumb regarding the precise weight to be given to the vivavoce test in all cases. It can vary from service to service according to the requirements of each service, the minimum qualifications prescribed, the age group from which selection is to be made, the body to which the task of holding the interview test is entrusted and a host of other factors. Exaggerated weight should not however be given to interview with obvious oblique motives. In case of judicial officers in the instant case, interview test was conducted by a committee consisting of a High Court Judge, a member of the Public Service Commission and a special external invitee-expert. The marks received by the candidates at the written examination were not supplied to the interviewers at any stage. There could be no legitimate grievance of arbitrariness against such a body. The candidates were not fresh graduates from colleges but were those who had received a certain amount of professional training. In Lila Mar, the Court differentiated between selection of candidates for admission to educational institutions and for jobs from the point-of view of giving relative importance to the viva voce test. For purposes of recruitment to services, the Court was ready to accept a higher relative value being given to the viva voce test than for purposes of admission, and the Court also showed its readiness to accept quite a high percentage of marks for the viva voce test for selection to government and other public posts. But, in cases subsequent to Lila Dhar, the judicial view underwent some change and the significance of the viva voce test as a component of the process of selection for these services was devalued. For instance, in Ashok Kumar Yadav v. State of Haryana ,31 in the context of selection for appointments in Civil Service (Executive) by the State Public Service Commission, the Supreme Court emphasized that unduly large marks for the viva voce test should not be prescribed as there creeps in the danger of arbitrariness. 331/3 marks allotted to the viva voce test were characterised by the Court as being on the high side as this was likely to create a wider scope of arbitrariness. The Court said that with this enormously large spread of marks for viva voce, this test

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"tended to become a determining factor in the selection process," and this "opens the door wide for arbitrariness and in order to diminish if not eliminate the risk of arbitrariness, this percentage need to be 'changed'. The Court commended the model followed by the Union Public Service Commission of allocating 12.2% marks for the viva voce test for selection of candidates to the Indian Administrative Service. In Vikram Singh,32 for selection of candidates for the posts of excise inspectors in Haryana, 28.5% marks allotted to viva voce out of the total marks of 350 were held to be unreasonable. The Supreme Court insisted that the principles laid down in Ashok Yadav ought to be applied in the matter of selection to public services. The Supreme Court has stated in Mohinder Sain Garg v. State of Punjab ,33 in relation to selection for posts of excise and taxation inspectors, that viva voce test cannot be totally dispensed with, "but taking note of the situation and conditions prevailing in our country, it would not be reasonable to have the percentage of viva voce marks more than 15% of the total marks in the selection of candidates fresh from college/school for public employment by direct recruitment where the rules provided for a composite process of selection, namely written examination and interview." In Munindra Kumar,34 the Supreme Court has ruled that marks for interview and group discussion should not exceed 10% and 5% respectively of the total marks for selection of candidate for the posts of assistant engineers (civil). But, in some cases, a higher percentage of marks for the viva voce test has been judicially accepted. For example, in Mehmood Alam Tariq v. State of Rajasthan ,35 prescription of 33 and 1/3% marks in the viva voce test for recruitment to senior state administrative services has been held to be valid. Distinguishing the situation in the instant case with that in Ajay Hasia, the Supreme Court has pointed out that the officers to be selected for higher services would, in course of time, be required "to man increasingly responsible positions in core services," and, therefore, these men should be endowed with personality traits conducive to the levels of performance in such services. Ajay Hasia refers to admission of students to educational institutions and the personality of these students "is yet to develop and it is too early W identify the personal qualities."36 In D. V. Bakshi v. Union of India ,37 the Supreme Court upheld the validity of the Customs House Agents Licensing Regulations, 1984, made by the Central Board of Excise and Customs. The Regulations prescribed that a person to be qualified to get a license should obtain atleast 50 marks out of 100 prescribed for the viva voce test. It was argued that the Regulation conferred an arbitrary power on the customs authorities to pick and choose the candidates for the issue of the license. The Court justified the Regulation on the ground that "the duties, responsibilities and functions of a customs house agent are very special, demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment and capacity to take prompt decisions in conformity with the law, rules and regulations." As regards the misuse of the power which the Court admitted was subjective, it said that proper records of viva voce that must be maintained in respect of each candidate and marks assigned under different heads at the oral test considered relevant to evaluate the candidate. "Once this care is taken the element of subjectivity will be largely checked. If there is any complaint of nepotism or favouritism, the same can be checked with reference to the record so maintained. The public service commission required that a candidate to be qualified to be selected for the post of a munsiff must obtain at least 30% of the marks prescribed for the viva voce test. No such condition was laid down in the rules made under Art. 309 of the Constitution. The Supreme Court declared the requirement laid down by the commission as invalid as running counter to the rules. The Court emphasized that the commission must follow the rules and it could not impose any additional qualification over and above what the rules prescribed.38 The Supreme Court has evolved another important proposition with a view to check arbitrariness in the process of awarding marks at the viva voce examination, viz., that the number of candidates to be called for the viva voce test ought not to be more than twice, or at the highest, thrice the number of vacancies to be filled. The Court has emphasized that if an unduly large number of candidates is called for the viva voce test, there is a possibility that a candidate securing very low marks in the written examination may be selected by being awarded very high marks at the viva voce test. The Court has emphasised that the written examination is much more objective in its assessment than the viva voce test which is somewhat subjective and discretionary in its evaluation. The written test should not lose all meaning and credibility and the viva voce test should not become the decisive factor in the process of selection. The Supreme Court has ruled in Ashok Raju39 that when the selection process consists of only a viva voce

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test without any written examination no limit need be imposed on prescribing marks for the interview. The Court pointed out that the ratio in Ashok Yadav and other cases is only applicable when the selection was through a written examination as well as the viva voce test. This ruling means that there can be a selection process consisting purely of the subjective test of viva voce without any objective component being included there. The question is whether this accords with the basic philosophy underlying Art. 14 that too much subjectivity may result in misuse of power. The Court has accepted in D. V. Bakshi, for instance, that viva voce is a highly subjective test and is susceptible to misuse. The cases mentioned above show that Art. 14 is a multi-dimensional constitutional provision and that it has assumed a highly activist magnitude and has come to embody a guarantee against arbitrariness. Art. 14 has evolved into a potent instrument to control administrative discrimination and arbitrariness. An arbitrary action necessarily involves negation of equality. It will be noted from the discussion in this Chapter that fundamental rights impose only marginal restraint on the scope and range of discretionary powers and on the manner these are to be exercised. On the whole, the judicial tendency seems to be in favour of upholding legislation in spite of conferment of broad discretionary powers, the main reason being that most of the legislation challenged before the courts is of social and economic nature and the courts do not like to invalidate such legislation as they are afraid that to do so would affect public interest, especially the interests of the poor. But control of discretionary powers is also very necessary in the interest of administrative purity and accountability as well as avoidance of administrative arbitrariness. Therefore, apart from what the courts have done to control discretionary powers by invoking fundamental rights, they have also developed certain norms for regulating the exercise of such powers and this is the theme of the next Chapter.

1 Supra, Chapter XVII. 2 Supra, Chapter XVII 3 Generally on Fundamental Rights in India, see, JAIN, Indian Constitutional Law, Chapters 20-28 (1987). 4 Infra, Chapter XIX; JAIN, Cases, Chapter XVI. 5 Supra, Chapter IV. 6 Supra, Chapter IV. 7 Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877, 895 : (1987) 1 SCC 288 : 1987 Crlj 793; JAIN, Cases, Chapter XVI, Sec. F(iii). Also see, infra, Chapter XIX. 8 Hardev Motor Transport v. State of M.P., (2006) 8 SCC 613 [LNIND 2006 SC 866] [LNIND 2006 SC 866] [LNIND 2006 SC 866], 627 (para 35). 9 P. Ratnakar Rao v. Govt. of A.P., (1996) 5 SCC 359 [LNINDORD 1996 SC 139] [LNINDORD 1996 SC 139] [LNINDORD 1996 SC 139], 361 (para 4) : AIR 1996 SC 2523 [LNINDORD 1996 SC 139] [LNINDORD 1996 SC 139] [LNINDORD 1996 SC 139]. 10 See infra, Chapter XIX. 11 M.P. JAIN, Administrative Discretion and Fundamental Rights, 1 JILI 249 (1958-59). 12 AIR 1982 SC 1325 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC 117]: (1982) 3 SCC 24; JAIN, Cases, Chapter XVI, Sec. B. Also see, E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]: (1974) 4 SCC 3 : 1974 (1) LLJ 172 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]; JAIN, Cases, Chapter XV. Sec. A. Also see, infra, note 14a. 13 A.L. Kalra v. P & E. Corpn. of India Ltd., AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136], 1367 : (1984) 3 SCC 316 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136]; JAIN, Cases, Chapter XV, Sec. A; JAIN, Cases, 753. 14 Sudhir Chandra v. Tata Iron & Steel Co. Ltd., AIR 1984 SC 1064 [LNIND 1984 SC 97] [LNIND 1984 SC 97] [LNIND 1984 SC 97], 1071 : (1984) 3 SCC 369 [LNIND 1984 SC 97] [LNIND 1984 SC 97] [LNIND 1984 SC 97] : 1984 (2) LLJ 223 [LNIND 1984 SC 97] [LNIND 1984 SC 97] [LNIND 1984 SC 97].

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15 JAIN, Indian Constitutional Law, 471-73. 16 AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], 1249 : (1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]; JAIN, Cases, Chapter XIV, Sec. D. 17 Vishnu Dayal v. State of Uttar Pradesh, AIR 1974 SC 1489 [LNIND 1974 SC 174] [LNIND 1974 SC 174] [LNIND 1974 SC 174]: (1974) 2 SCC 306. TO THE SAME EFFECT : Consumer Action Group v. State of T.N., (2000) 7 SCC 425 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] (para 18) : AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND 2000 SC 1130]. 18 Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], 1249 : (1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]. 19 Bachan Singh v. State of Punjab, AIR 1982 SC 1336 : (1982) 3 SCC 24. 20 5 M&T Consultants, Secunderabad v. S.Y. Nawab, (2003) 8 SCC 100, para 16. 21 AIR 1974 SC 543 [LNIND 1973 SC 405] [LNIND 1973 SC 405] [LNIND 1973 SC 405]: (1974) 1 SCC 549; JAIN, Cases, Chapter XV, Sec. B(i). 22 AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]: (1981) 4 SCC 335 : 1981 (2) LLJ 314 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]; JAIN, Cases, Chapter XV, Sec. B. On 'Air India', also see, infra, Vol. II, last Chapter. 23 B. Narasimhalu v. Central Government AIR 1976 Mad 224 [LNIND 1974 MAD 278] [LNIND 1974 MAD 278] [LNIND 1974 MAD 278]. Also see, B.B. Rajwanshi v. State of Uttar Pradesh, AIR 1988 SC 1089 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]: (1988) 2 SCC 415 : 1988 (2) LLJ 238 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC 219]. 24 AIR 1983 SC 1235 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983 SC 257]: (1983) 4 SCC 339; JAIN, Cases, Chapter XV, Sec. B. 25 Workmen, Hindustan Steel Ltd. v. Hindustan Steel Ltd., AIR 1985 SC 251 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: 1984 Supp SCC 554 : 1985 (1) LLJ 267 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]; West Bengal State Electricity Board v. Desh Bandhu Ghosh, AIR 1985 SC 722 [LNIND 1985 SC 64] [LNIND 1985 SC 64] [LNIND 1985 SC 64]: (1985) 3 SCC 116 : 1985 (1) LLJ 373 [LNIND 1985 SC 64] [LNIND 1985 SC 64] [LNIND 1985 SC 64]; Central Inland Water Transport Ltd. v. Brojonath, AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: (1986) 3 SCC 156: 1986 (2) LLJ 171 [LNIND 1986 SC 112] [LNIND 1986 SC 112] [LNIND 1986 SC 112]; JAIN, Cases, 228; O.P. Bhandari v. Indian Tourism Development Corporation Ltd., AIR 1987 SC 111 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353]: (1986) 3 SCC 337 : 1986 (2) LLJ 509 [LNIND 1986 SC 353] [LNIND 1986 SC 353] [LNIND 1986 SC 353]; JAIN, Cases, Chapter XV, Sec. B(vi); M.K Aggarwal v. Gurgaon Gramin Bank, AIR 1988 SC 286 : 1987 Supp SCC 643 : JT 1987 (4) SC 511. Also see, infra, Vol. II under Public Undertakings. 26 West Bengal State Electricity Board v. Desh Bandhu Ghosh, AIR 1985 SC 722 [LNIND 1985 SC 64] [LNIND 1985 SC 64] [LNIND 1985 SC 64]: 1984 Supp SCC 554. 27 AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: 1991 (1) LLJ 395 : JT (1990) 3 SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]; JAIN, Cases, Chapter XV, Sec. B(vi). 28 Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]at 153 : 1991 (1) LLJ 395 [LNIND 1990 SC 489] [LNIND 1990 SC 489] [LNIND 1990 SC 489] : JT 1990 (3) SC 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. 29 Chairman-cum-Managing Director,M.L. Kamra v. Chairman-cum-Managing Director, New India Ass. Co. Ltd. AIR 1992 SC 1072 [LNIND 1992 SC 46] [LNIND 1992 SC 46] [LNIND 1992 SC 46]: (1992) 2 SCC 36 : 1992 (1) LLJ 630 [LNIND 1992 SC 46] [LNIND 1992 SC 46] [LNIND 1992 SC 46]. 30 See, Union of India v. Sinha, AIR 1971 SC 40 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]: (1970) 2 SCC 458 : 1970 (2) LLJ 284 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]; Shivacharan Singh v. State of Mysore, AIR 1965 SC 280 [LNIND 1964 SC 82] [LNIND 1964 SC 82] [LNIND 1964 SC 82]: 1967 (2) LLJ 246. 31 AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]: (1989) 4 SCC 318 : 1989 (4) SLR 229 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]. Also see, supra, Chapter VIII, 219, 225; JAIN, Cases, 432. 32 Chandeshwar Prasad v. State of Bihar, AIR 1987 Pat 208; JAIN, Cases, Chapter XV, Sec. B(i). 33 AIR 1985 SC 119 [LNIND 1984 SC 323] [LNIND 1984 SC 323] [LNIND 1984 SC 323]: (1985) 1 SCC 234; JAIN, Cases, Chapter XV, Sec. B(i). 34 AIR 1956 SC 676 [LNIND 1956 SC 37] [LNIND 1956 SC 37] [LNIND 1956 SC 37]: 1956 SCR 393.

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35 F.N. Roy v. Collector of Customs AIR 1957 SC 648 [LNIND 1957 SC 57] [LNIND 1957 SC 57] [LNIND 1957 SC 57]: 1957 Crlj 1026 : 1957 SCR 1151 [LNIND 1957 SC 57] [LNIND 1957 SC 57] [LNIND 1957 SC 57]. 36 Naraindas v. State of M.P., AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], 1249: (1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]. 37 AIR 1961 SC 1602 [LNIND 1961 SC 193] [LNIND 1961 SC 193] [LNIND 1961 SC 193]: 1962 (2) SCR 125; JAIN, Cases, Chapter XV, Sec. B(i). 38 Jagdish Pandey v. Chancellor Bihar University, AIR 1968 SC 353 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]: 1968 (1) SCR 231 : 1968 SLR 252. 39 Digyadarshan R.R. Veru v. State of Andhra Pradesh, AIR 1970 SC 181 [LNIND 1969 SC 142] [LNIND 1969 SC 142] [LNIND 1969 SC 142]: (1969) 1 SCC 844. 40 Asst. Commissioner, U.L.T. v. B. & C. Co., AIR 1970 SC 169 [LNIND 1969 SC 163] [LNIND 1969 SC 163] [LNIND 1969 SC 163]: (1969) 2 SCC 55. 41 JAIN, Indian Constitutional Law, 737-750. 42 Biswambhar v. State of Orissa, AIR 1954 SC 139 [LNIND 1953 SC 122] [LNIND 1953 SC 122] [LNIND 1953 SC 122]: 1954 SCR 842. Also, Bhairebandra v. State of Assam, AIR 1956 SC 503 [LNIND 1956 SC 32] [LNIND 1956 SC 32] [LNIND 1956 SC 32]: 1956 SCR 303; Inder Singh v. State of Rajasthan, AIR 1975 SC 510 : 1975 SCR 605. 43 Supra, Chapter XVI. 44 Supra, Chapter XVI. 45 AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; also see supra, 735; JAIN, Cases, Chapter XV, Sec. B(i). 46 Infra, under heading : Right of Movement and Residence, Chapter XVIII. 47 AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317]: (1975) 1 SCC 110. Also see supra, Chapter IX. 48 State of Mysore v. M.L. Nagade & Gadang, AIR 1983 SC 761 : (1983) 3 SCC 253; JAIN, Cases, Chapter XV, Sec. B(i). 49 AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: (1979) 4 SCC 573 : 1979 (2) LLJ 416 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]; JAIN, Cases, Chapter XV, Sec. B(i). 50 See, supra, Chapter X, under Reasoned Decisions. 51 See, infra, next Chapter. For Art. 226, see, infra, Vol. II, under Judicial Control. 52 The Court pointed out that damages are of various kinds, e.g. actual damages, civil damages, compensatory damages, consequential damages, contingent damages, exemplary damages, general damages, irreparable damages, pecuniary damages, prospective damages, special damages, speculative damages, substantial damages, unliquidated damages etc. The Court asserted that the precise import of the term damages' in a given context is not difficult to discern. The Court also ruled that the concept of 'damages' in S. 14B is not merely compensatory but it also includes "a punitive sum quantified according to the circumstances of the case." 53 Khaizar Basha v. Indian Airlines Corp., AIR 1984 Mad 379 [LNIND 1984 MAD 262] [LNIND 1984 MAD 262] [LNIND 1984 MAD 262]. Reference may also be made to the following cases where conferment of broad discretion has been upheld against challenge under Art. 14; Gram Sabha, Shahzadpur v. State, AIR P&H 33; Shankar Birmiwal v. Union of India, AIR 1982 Raj 189; Shriram Bearings Ltd. v. B.S.E. Board, AIR 1982 Pat 93; Maharashtra State Electricity Board v. Kalyan Borough Municipality, AIR 1968 SC 991 [LNIND 1968 SC 35] [LNIND 1968 SC 35] [LNIND 1968 SC 35]: 1968 (3) SCR 137. 54 Niemala Mills Ltd. v. Second Punjab Tribunal, AIR 1957 SC 329 [LNIND 1957 SC 1] [LNIND 1957 SC 1] [LNIND 1957 SC 1]: 1957 SCR 335 : 1957 (1) LLJ 460 [LNIND 1957 SC 1] [LNIND 1957 SC 1] [LNIND 1957 SC 1]. 55 AIR 1976 SC 789 [LNIND 1975 SC 519] [LNIND 1975 SC 519] [LNIND 1975 SC 519]: (1976) 2 SCC 128. The term "telegraph" in S. 5(1) includes a "telephone" as well. 56 In re Kerala Education Bill, AIR 1958 SC 956 : 1959 SCR 995. 57 C.B. Gautam v. Union of India, (1993) 199 ITR 530 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833] : (1993) 1 SCC 78 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833]. 58 This percentage of under valuation has been fixed not in the statutory provision itself but in an instruction issued by the Central Board of Direct Taxes.

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59 C.B. Gautam v. Union of India, (1993) 199 ITR 530 : (1993) 1 SCC 78 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833]. 60 AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], 1734: 1962 (2) SCR 169 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]; JAIN, Cases, Chapter XV, Sec. B(i). 61 AIR 1985 SC 257 [LNIND 1984 SC 341] [LNIND 1984 SC 341] [LNIND 1984 SC 341]: (1985) 1 SCC 290. 62 Sub-Divisional Officer v. Mehar Singh (Dr.), AIR 1989 SC 206 [LNIND 1988 SC 393] [LNIND 1988 SC 393] [LNIND 1988 SC 393]: (1988) 4 SCC 200. 63 Sub-Divisional Officer v. Mehar Singh (Dr.), AIR 1989 SC 206 [LNIND 1988 SC 393] [LNIND 1988 SC 393] [LNIND 1988 SC 393]at 213 : (1988) 4 SCC 200 [LNIND 1988 SC 393] [LNIND 1988 SC 393] [LNIND 1988 SC 393]. 64 Saroj Rani v. State of Punjab, AIR 1999 SC 3392 [LNIND 1999 SC 741] [LNIND 1999 SC 741] [LNIND 1999 SC 741], para 20: (1999) 6 SCC 637 [LNIND 1999 SC 741] [LNIND 1999 SC 741] [LNIND 1999 SC 741]. 65 AIR 1987 Bon 160. 66 AIR 1957 SC 397 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND 1956 SC 117]: 1957 SCR 233; JAIN, Cases, Chapter XV, Sec. B(i). 67 Cf. Bidi Supply Co. v. U.O.I., AIR 1956 SC 479 [LNIND 1956 SC 29] [LNIND 1956 SC 29] [LNIND 1956 SC 29]: 1956 SCR 267. 68 See, M.P. JAIN, Administrative Discretion and Fundamental Rights, 1 JILI 223, 247-8 (1958-59); M.P. JAIN, Justice Bhagwati and Indian Constitutional Law, 2 JILI 36 (1960). 69 (1980) 3 SCC 402 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177] : 1980 (2) LLJ 152 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]. 70 R.R. Verma v. Union of India, AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], 1462-63 : (1980) 3 SCC 402 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177] : 1980 (2) LLJ 152 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177]. Also see, JAIN, Cases, Chapter XV, Sec. B(VI). 71 Also see, Amrik Singh v. Union of India, 1980 Lab IC 735 [LNIND 1980 SC 175] [LNIND 1980 SC 175] [LNIND 1980 SC 175] : AIR 1980 SC 1447 [LNIND 1980 SC 175] [LNIND 1980 SC 175] [LNIND 1980 SC 175]: (1980) 3 SCC 393, where the Supreme Court explained the nature of this rule as follows : "It is not arbitrary because the Rule contains guidelines. Government must be satisfied, not subjectively but objectively, that any rule or regulation affecting the conditions of service of a member of the All India Services causes undue hardship, then the iniquitous consequence thereof may be relieved against by relaxation of the concerned Rule or Regulation. There must be undue hardship and, further the relaxation must promote the dealing with the case 'in just and equitable manner.' These are perfectly sensible guidelines. What is more, there is implicit in the Rule, the compliance with natural justice so that no body may be adversely affected even by administrative action without a hearing. We are unable to see anything unreasonable, capricious or deprivatory of the rights of any one in this residuary power vested in the Central Government." 72 AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]: 1986 Supp SCC 617 : 1986 (4) SLR 75; JAIN, Cases, Chapter XV, Sec. B(VI). 73 See, for example, Organo Chemical Industries v. Union of India, AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: (1979) 4 SCC 573 : 1979 (2) LLJ 416 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]. Also see, infra, 784-785. 74 See, Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; Organo Chemical Industries v. Union of India, AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: (1979) 4 SCC 573 : 1979 (2) LLJ 416 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]. 75 Commr. of Sales Tax v. Radhakrishan, AIR 1979 SC 1588 [LNIND 1978 SC 288] [LNIND 1978 SC 288] [LNIND 1978 SC 288]: (1979) 2 SCC 249 : (1979) 43 STC 4. 76 Commr. of Sales Tax v. Radhakrishan, AIR 1979 SC 1588 [LNIND 1978 SC 288] [LNIND 1978 SC 288] [LNIND 1978 SC 288], at 1592-93 : (1979) 118 ITR 534 : (1979) 2 SCC 249 [LNIND 1978 SC 288] [LNIND 1978 SC 288] [LNIND 1978 SC 288]. The following cases also support the proposition that when power is vested in high officials, it will be presumed that discretion vested in them will be exercised in a responsible manner and will not be abused : Mohemdalli v. Union of India, AIR 1964 SC 980 [LNIND 1962 SC 361] [LNIND 1962 SC 361] [LNIND 1962 SC 361]: 1963 (1) Crlj 536 : 1963 Supp (1) SCR 993; K.L. Gupta v. Bombay Municipal Corp., AIR 1968 SC 303 [LNIND 1967 SC 237] [LNIND 1967 SC 237] [LNIND 1967 SC 237]: 1968 (1) SCR 274; State (Delhi Adm.) v. V.C. Shukla, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179]: (1980) 2 SCC 665 : 1980 Crlj 965; JAIN, Cases, Chapter XV, Sec. B(ii); Chinta Lingam v. Govt. of India, AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464]: (1970) 3 SCC 768; JAIN, Cases, Chapter XV, Sec.

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D(V); Srinath Singh v. S.K. Bhattacharya, AIR 1973 Cal 28 [LNIND 1972 CAL 147] [LNIND 1972 CAL 147] [LNIND 1972 CAL 147]. Also see, infra, under Art. 19(1)(g) 807 et seq.. 77 Infra, under Art. 19(1)(g). 78 AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452]: (1981) 4 SCC 93 : 1980 (3) SLR 538. TO THE SAME EFFECT, Shiv Sagar Tiwari v. UOI, (1997) 1 SCC 444 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] (paras 1 and 95) : AIR 1997 SC 2725 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873]. 79 The office of the Comptroller and Auditor-General is created by Art. 148 of the Constitution : JAIN, Indian Const. Law, 47-49. 80 Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], 888 : (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]; supra, 299; JAIN, Cases, 286, 354. In A.K. Sabhapathy v. State, AIR 1983 Ker 24 [LNIND 1982 KER 209] [LNIND 1982 KER 209] [LNIND 1982 KER 209], the High Court said : "The fact that the power vests in the government is itself a sufficient safeguard." 81 (1997) 9 SCC 151 [LNIND 1996 SC 1462] [LNIND 1996 SC 1462] [LNIND 1996 SC 1462], para 23. 82 State of Kerala v. Aravind Ramakant Modawdakar, (1999) 7 SCC 400 [LNIND 1999 SC 666] [LNIND 1999 SC 666] [LNIND 1999 SC 666], paras 9 and 10 : AIR 1999 SC 2970 [LNIND 1999 SC 666] [LNIND 1999 SC 666] [LNIND 1999 SC 666]. 83 (1999) 6 SCC 667 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637] : AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637]. 84 See, infra, Chapter XXI. 85 See, Next Chapter. 86 AIR 1987 SC 2257 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626], 2262 : (1987) 4 SCC 328 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626] : 1988 (1) LLJ 453 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626]. 87 Mohinder Singh Gill v. Chief Election Commr., AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332]: (1978) 1 SCC 405; Also see Suman Gupta v. State of Jammu & Kashmir, AIR 1983 SC 1235 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983 SC 257]: (1983) 4 SCC 339; V. Srinivas v. Machines and Machine tools P. Ltd. AIR 1982 P&H 69. 88 AIR 1982 P&H 69. 89 Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]: (1991) 1 LLJ 395 : 1991 Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]. 90 Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]at 145, 174 : (1991) Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824] : 1991 (1) LLJ 395 [LNIND 1990 SC 489] [LNIND 1990 SC 489] [LNIND 1990 SC 489]. 91 Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824]at 145, 174: (1991) Supp (1) SCC 600 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824] : 1991 (1) LLJ 395 [LNIND 1990 SC 489] [LNIND 1990 SC 489] [LNIND 1990 SC 489]. 92 Excel Wear v. Union of India, AIR 1979 SC 25 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]: 1978 (2) LLJ 527 : (1978) 4 SCC 224 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]; JAIN, Cases, Chapter XV. Sec. D(V). 93 Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]; JAIN, Cases, Chapter XV, Sec. D(V). 94 Maneka Gandhi v. Union of India, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 95 Organo Chemical Industries v. Union of India, AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: 1979 (2) LLJ 416: (1979) 4 SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]. Also, Chinta Lingam v. Govt. of India, AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464]: (1990) 3 SCC 768; K.L. Gupta v. State of Bombay Municipal Corp., AIR 1968 SC 303 [LNIND 1967 SC 237] [LNIND 1967 SC 237] [LNIND 1967 SC 237]: (1968) 1 SCR 274; Pannalal Binjraj, v. Union of India, AIR 1957 SC 397 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND 1956 SC 117]: 1957 SCR 233. 96 AIR 1985 SC 613 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117]: (1985) 2 SCC 732; JAIN, Cases, Chapter XV, Sec. B(V). 1 See, Next Chapter.

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2 Infra, Chapter XIX. 3 Infra, Chapter XVII. For details, See, Sir ANTHONY MASON, Administrative Review : The Experience of the First Twelve Years, (1989) 19 Federal Law Review, 122. 4 Organo Chemical Industries v. Union of India, AIR 1979 SC 596 : (1979) 4 SCC 573 : 1979 (2) LLJ 416 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]; State of Mysore v. M.L. Nagade & Gadang, AIR 1983 SC 761 : (1983) 3 SCC 253. 5 Infra, next Chapter. 6 For a discussion on Art. 226, see, infra, Vol. II, under Judicial Control. 7 Air India v. Nargesh Meerza, AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]: (1981) 4 SCC 335 : 1981 (2) LLJ 314 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]. 8 Union of India v. Dinesh Engineering Corpn., (2001) 8 SCC 491 [LNIND 2001 SC 2091] [LNIND 2001 SC 2091] [LNIND 2001 SC 2091], para 15 : AIR 2001 SC 3887 [LNIND 2001 SC 2091] [LNIND 2001 SC 2091] [LNIND 2001 SC 2091]. 9 AIR 1952 SC 75 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1]: 1952 Crlj 510 : 1952 SCR 284 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1]; JAIN, Cases Chapter XV, Sec. B(ii). 10 AIR 1952 SC 123 [LNIND 1952 SC 12] [LNIND 1952 SC 12] [LNIND 1952 SC 12]: 1952 Crlj 805 : 1952 SCR 435 [LNIND 1952 SC 12] [LNIND 1952 SC 12] [LNIND 1952 SC 12]. 11 AIR 1953 SC 404 [LNIND 1953 SC 67] [LNIND 1953 SC 67] [LNIND 1953 SC 67]: 1953 Crlj 1621 : 1954 SCR 30 [LNIND 1953 SC 67] [LNIND 1953 SC 67] [LNIND 1953 SC 67]. Also, Lachmandas v. State of Bombay, AIR 1952 SC 235 [LNIND 1952 SC 35] [LNIND 1952 SC 35] [LNIND 1952 SC 35]: 1952 Crlj 1167 : 1952 SCR 710 [LNIND 1952 SC 35] [LNIND 1952 SC 35] [LNIND 1952 SC 35]. 12 It was also argued that the law did not disclose any reasonable classification as to the offences mentioned. In upholding the provision, it was stated by the Court that the type of offences mentioned in the Act were those which were widely prevalent during the war-time and hence the policy was clear in the Act. 13 AIR 1953 SC 404 [LNIND 1953 SC 67] [LNIND 1953 SC 67] [LNIND 1953 SC 67]at 409 : 1953 Crlj 1621 : 1954 SCR 30 [LNIND 1953 SC 67] [LNIND 1953 SC 67] [LNIND 1953 SC 67]. 14 In re, the Special Courts Bill. 1978, AIR 1979 SC 478 [LNIND 1978 SC 661] [LNIND 1978 SC 661] [LNIND 1978 SC 661]: (1979) 1 SCC 380; JAIN, Cases, Chapter XV, Sec. B(ii). 15 The Act has since then been repealed. 16 State (Delhi Administration) v. V.C. Shukla, AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179], 1413-15 : (1980) 2 SCC 665 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC 179] : 1980 Crlj 965; JAIN, Cases, Chapter XV, Sec. B(ii). 17 Also see, V.C. Shukla v. The State, AIR 1980 SC 962 : 1980 Supp SCC 92 : 1980 Crlj 690. 18 AIR 1993 Ori 259 [LNIND 1993 ORI 130] [LNIND 1993 ORI 130] [LNIND 1993 ORI 130]; JAIN, Cases, Chapter XV, Sec. B(ii). On Confiscation of Property, Sec. supra, Chapter XVI and JAIN, Cases, Chapter XVIII, Vol. III. 19 For Art. 21, see, under heading : Personal Liberty and Prevention Detention, Chapter XVIII, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 20 See Anandji Haridas and Co. v. S.P. Kasture, AIR 1968 SC 565 [LNIND 1967 SC 284] [LNIND 1967 SC 284] [LNIND 1967 SC 284]: 1968 (1) SCR 661. 21 State of Orissa v. Dhirendranath Das, AIR 1961 SC 1715. 22 Wali Mohd. v. Administrator, Municipality, AIR 1960 J&K 88; Raja Sahib Nalagarh v. State of Punjab, AIR 1969 Del 194 [LNIND 1968 DEL 90] [LNIND 1968 DEL 90] [LNIND 1968 DEL 90]; Ram Gopal v. Asset. Housing Commr., AIR 1969 All 278 [LNIND 1967 ALL 96] [LNIND 1967 ALL 96] [LNIND 1967 ALL 96]; Grand Cinema v. Entertainment Tax Officer, AIR 1969 Punj 98; Rayalal Corporation v. Director of Enforcement, AIR 1972 SC 494 : 1970 Crlj 588: (1969) 2 SCC 412 [LNIND 1969 SC 219] [LNIND 1969 SC 219] [LNIND 1969 SC 219]; Hari Singh. v. The Military Estate Officer, AIR 1972 SC 2205 [LNIND 1972 SC 281] [LNIND 1972 SC 281] [LNIND 1972 SC 281]: (1972) 2 SCC 239. 23 Northern India Caterers Ltd. v. State of Punjab, AIR 1976 SC 1581 : 1967 (3) SCR 399. 24 AIR 1974 SC 2009 [LNIND 1974 SC 151] [LNIND 1974 SC 151] [LNIND 1974 SC 151]: (1974) 2 SCC 402; JAIN, Cases, Chapter XV, Sec. B(iii). 25 For further discussion, see, JAIN, Indian Constitutional Law, 488-89. Also see Ahmedabad Municipality v. Ramanlal, AIR

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1975 SC 1187 [LNIND 1975 SC 115] [LNIND 1975 SC 115] [LNIND 1975 SC 115]: (1975) 1 SCC 778; JAIN, Cases, Chapter XV, Sec. B(iii); Chairman, Auqaf Corner. v. Suraj Ram, AIR 1976 J&K 14; Pandia Nadar v. State of Tamil Nadu, AIR 1974 SC 2044 [LNIND 1974 SC 173] [LNIND 1974 SC 173] [LNIND 1974 SC 173]: (1974) 2 SCC 539; Srinivasa Khandasari Sugar v. State of Andhra Pradesh, AIR 1976 AP 93 [LNIND 1975 AP 72] [LNIND 1975 AP 72] [LNIND 1975 AP 72]; Sham Rattan v. State of Haryana, AIR 1976 P&H 93; Iqbal Singh v. State (Delhi Adm.) AIR 1977 SC 2437 [LNIND 1977 SC 315] [LNIND 1977 SC 315] [LNIND 1977 SC 315]: 1978 Crlj 192 : (1977) 4 SCC 536 [LNIND 1977 SC 315] [LNIND 1977 SC 315] [LNIND 1977 SC 315]; Ahmedabad Municipal Corporation v. Ranianlal Govind Ram, AIR 1980 SC 1187 [LNIND 1980 SC 144] [LNIND 1980 SC 144] [LNIND 1980 SC 144]: (1975) 1 SCC 778; JAIN, Cases, Chapter XV. Sec. B(iii); Gujarat v. Dharamdas, AIR 1982 SC 781 : (1982) 1 SCC 370. 26 Joseph Vellukunnel v. Reserve Bank of India, AIR 1962 SC 1371 [LNIND 1962 SC 109] [LNIND 1962 SC 109] [LNIND 1962 SC 109], 1383 : (1962) 32 Comp Cas 514; JAIN, Cases, Chapter XV, Sec. B(i). Also see, Ramraj Singh v. State of Maharashtra, AIR 1969 Bom 333 [LNIND 1968 BOM 107] [LNIND 1968 BOM 107] [LNIND 1968 BOM 107]. 27 Manoharlal v. State of Maharashtra, AIR 1971 SC 1511 [LNIND 1971 SC 224] [LNIND 1971 SC 224] [LNIND 1971 SC 224]: 1971 Crlj 1157 : (1971) 2 SCC 119 [LNIND 1971 SC 224] [LNIND 1971 SC 224] [LNIND 1971 SC 224]. 28 Director of Industries, State of U.P. v. Deep Chand, AIR 1980 SC 801 [LNIND 1980 SC 54] [LNIND 1980 SC 54] [LNIND 1980 SC 54]: (1980) 2 SCC 332; JAIN, Cases, Chapter XV, Sec. B(iii). 29 See, supra, Chapter XI, on Bias. 30 Alka Ceramics v. Gujarat State Financial Corporation, AIR 1990 Guj 107; JAIN, Cases, Chapter XV, Sec. B(iii). 31 See, Under heading : Freedom to Hold Property, Chapter XVIII, AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]: 1979 (2) LLJ 416 : (1979) 4 SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288]. 32 See below under Arts. 21 and 22 : Personal Liberty and Preventive Detention, Chapter XVIII, AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248. 33 Indira Jai Singh v. Union of India, AIR 1989 Bom 25 [LNIND 1988 BOM 250] [LNIND 1988 BOM 250] [LNIND 1988 BOM 250]; JAIN, Cases, Chapter XV, Sec. D(i). 34 State v. Baboo Lal, AIR 1956 All 571 [LNIND 1956 ALL 101] [LNIND 1956 ALL 101] [LNIND 1956 ALL 101]; Harnam Singh v. State of Punjab, AIR. 1958 Punj 243. 35 AIR 1957 SC 896 [LNIND 1957 SC 80] [LNIND 1957 SC 80] [LNIND 1957 SC 80]: 1958 SCR 308; JAIN, Cases, Chapter XV, Sec. D(i). 36 AIR 1961 SC 884 [LNIND 1961 SC 14] [LNIND 1961 SC 14] [LNIND 1961 SC 14]: 1961 (2) Crlj 16 : 1961 (3) SCR 423 [LNIND 1961 SC 14] [LNIND 1961 SC 14] [LNIND 1961 SC 14]; JAIN, Cases, Chapter XV, Sec. D(ii). 37 S. 144, CrPC, was again held valid in Madhu Limaye v. S.D.M., Monghyr, AIR 1971 SC 2486 [LNIND 1970 SC 501] [LNIND 1970 SC 501] [LNIND 1970 SC 501]: 1971 Crlj 1720 : (1970) 3 SCC 746 [LNIND 1970 SC 501] [LNIND 1970 SC 501] [LNIND 1970 SC 501]. 38 AIR 1971 SC 1667 [LNIND 1969 SC 441] [LNIND 1969 SC 441] [LNIND 1969 SC 441]: (1969) 3 SCC 337; JAIN, Cases, Chapter XV. Sec. D(ii). 39 Infra, next Chapter. 40 AIR 1971 SC 481 [LNIND 1970 SC 388] [LNIND 1970 SC 388] [LNIND 1970 SC 388]: (1970) 2 SCC 780. 41 On film censorship, also see, JAIN, Cases, Chapter XII, Sec. Q. 42 Maneka Gandhi v. Union of India,. AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]: (1978) 1 SCC 248; For detailed discussion, see, M.P. JAIN, Indian Constitutional Law, 582 et seq. 43 Infra, next Chapter, under Unreasonableness. 44 AIR 1973 SC 87 [LNIND 1972 SC 438] [LNIND 1972 SC 438] [LNIND 1972 SC 438]: 1973 Crlj 204 : (1973) 1 SCC 227 [LNIND 1972 SC 438] [LNIND 1972 SC 438] [LNIND 1972 SC 438]; JAIN, Cases, Chapter XV, Sec. D(ii). 45 AIR 1952 SC 196 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23]: 1952 Crlj 966 : 1952 SCR 597 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23]; JAIN, Cases, Chapter XV, Sec. D(iii). 46 Dist. Board v. Dist. Board, AIR 1952 Mad 253 [LNIND 1951 MAD 259] [LNIND 1951 MAD 259] [LNIND 1951 MAD 259]. 47 U.P. Shramik Maha Sangh v. Uttar Pradesh, AIR 1960 All 45 [LNIND 1959 ALL 89] [LNIND 1959 ALL 89] [LNIND 1959 ALL 89]. Also see, E.R.E. Congress v. General Manager; E. Rly., AIR Cal 389; O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812 [LNIND 1962 SC 348] [LNIND 1962 SC 348] [LNIND 1962 SC 348]: 1962 (2) LLJ 615 : 1963 Supp (1) SCR 789.

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48 Jamaat-e-Islami Hind v. Union India, (1995) SCC 428 : JT 1995 (1) SC 31; JAIN, Cases, Chapter XVI, Sec. D(iii). Also see, Rajendra Prasad Agarwal v. Union of India, AIR 1993 All 258 [LNIND 1993 ALL 213] [LNIND 1993 ALL 213] [LNIND 1993 ALL 213]. 49 The Hindu Int'l Ed., Dtd. July 1, 1995, p. 2. For the concept of "extraneous considerations," see, infra, Chapter XIX; JAIN, Cases, Chapter XVI. 50 AIR 1950 SC 211 [LNIND 1950 SC 30] [LNIND 1950 SC 30] [LNIND 1950 SC 30]: 1951 Crlj 550 : 1950 SCR 519 [LNIND 1950 SC 30] [LNIND 1950 SC 30] [LNIND 1950 SC 30]. 51 AIR 1952 SC 221 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31]: 1952 Crlj 1147 : 1952 SCR 737 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31]; JAIN, Cases, Chapter XV, Sec. D(iv). 52 AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]: 1956 Crlj 1104 : 1956 SCR 506 [LNIND 1956 SC 42] [LNIND 1956 SC 42] [LNIND 1956 SC 42]; JAIN, Cases, Chapter XV, Sec. D(iv). 53 AIR 1956 SC 585 [LNIND 1956 SC 43] [LNIND 1956 SC 43] [LNIND 1956 SC 43]: 1956 Crlj 1126 : 1956 SCR 533 [LNIND 1956 SC 43] [LNIND 1956 SC 43] [LNIND 1956 SC 43]. 54 AIR 1961 SC 293 [LNIND 1960 SC 228] [LNIND 1960 SC 228] [LNIND 1960 SC 228]: 1961 (1) Crlj 442 : 1961 (1) SCR 970 [LNIND 1960 SC 228] [LNIND 1960 SC 228] [LNIND 1960 SC 228]; JAIN, Cases, Chapter XV, Sec. D(iv). 55 AIR 1967 SC 1170 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16]: 1967 (2) SCR 454. 56 AIR 1981 SC 613 [LNIND 1980 SC 445] [LNIND 1980 SC 445] [LNIND 1980 SC 445]: 1981 Crlj 5 : (1981) 1 SCC 639. 57 Premchand v. Union of India, AIR 1981 SC 613 [LNIND 1980 SC 445] [LNIND 1980 SC 445] [LNIND 1980 SC 445]at 616 : 1981 Crlj 5 : (1981) 1 SCC 639. 58 AIR 1954 SC 229 [LNIND 1954 SC 26] [LNIND 1954 SC 26] [LNIND 1954 SC 26]: 1954 Crlj 712 : 1954 SCR 933 [LNIND 1954 SC 26] [LNIND 1954 SC 26] [LNIND 1954 SC 26]. 59 State of Mysore v. K.C.Adiga, AIR 1976 SC 853 : (1976) 2 SCC 495. 60 The major Acts in this area are: the Essential Commodities Act, 1955; the Industries (Development and Regulation) Act, 1951; the Monopolies and Restrictive Trade Practices Act, 1969. See, generally, on this aspect: I.L.I, Government Regulation of Private Enterprise (1971). 61 Dwarka Pd. v. U.P., AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1], 227 : 1954 SCR 803 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND 1954 SC 1]; JAIN, Cases, Chapter XV, Sec. D(V). 62 State of Rajasthan v. Nath Mal,Nath Mal,Nath Mal, AIR. 1954 SC 307: 1954 SCR 982 [LNIND 1954 SC 38] [LNIND 1954 SC 38] [LNIND 1954 SC 38]; Bijay Cotton Mills v. State of Ajmer, AIR 1955 SC 33 [LNIND 1954 SC 129] [LNIND 1954 SC 129] [LNIND 1954 SC 129]. 63 Krishan Kumar Narula v. J.&K., AIR 1967 SC 1368 [LNIND 1967 SC 57] [LNIND 1967 SC 57] [LNIND 1967 SC 57]: 1967 (3) SCR 50, it was held that dealing in liquor is trade and business and a citizen has a right to carry on the same but the state can impose reasonable restrictions on this right. This view underwent a change in Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360 [LNIND 1974 SC 387] [LNIND 1974 SC 387] [LNIND 1974 SC 387]: (1975) 1 SCC 29. The Supreme Court held that there is no fundamental right to carry on trade in liquor : JAIN, Indian Constitutional Law, 474 (1978). 64 (1999) 5 SCC 612, para 4. 65 AIR 1954 SC 227 : 1954 SCR 803. 66 AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]: 1954 Crlj 1322 : 1955 (1) SCR 380 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC 93]; JAIN, Cases, 56. 67 See, Mohan Industries v. Deputy Director, Industries and Commerce, AIR 1973 Ker 60. 68 AIR 1961 SC 705 [LNIND 1960 SC 330] [LNIND 1960 SC 330] [LNIND 1960 SC 330]: 1961 (3) SCR 135. 69 Chinta Lingam v. Govt. of India, AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464], 476 : (1970) 3 SCC 768 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464]; JAIN, Cases, Chapter XV, Sec. D(V). 70 K.L. Gupta v. Bombay Municipal Com, AIR 1968 SC 303 [LNIND 1967 SC 237] [LNIND 1967 SC 237] [LNIND 1967 SC 237], 316 : 1968 (1) SCR 274 [LNIND 1967 SC 237] [LNIND 1967 SC 237] [LNIND 1967 SC 237]; Pannalal Binjraj v. Union of India AIR 1957 SC 397 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND 1956 SC 117], 408 : 1957 SCR 233 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND 1956 SC 117]; supra, note 75; infra, note 187. 71 See, Srinath Singh v. S.K. Bhattacharjee, AIR 1973 Cal 28 [LNIND 1972 CAL 147] [LNIND 1972 CAL 147] [LNIND 1972 CAL 147].

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72 AIR 1962 SC 204 [LNIND 1961 SC 272] [LNIND 1961 SC 272] [LNIND 1961 SC 272]: 1962 (3) SCR 108; JAIN, Cases, Chapter XV, Sec. D(V). 73 Chandrakant v. Jasjit Singh, AIR 1962 SC 204 [LNIND 1961 SC 272] [LNIND 1961 SC 272] [LNIND 1961 SC 272]at 208-09 : 1962 (3) SCR 108 [LNIND 1961 SC 272] [LNIND 1961 SC 272] [LNIND 1961 SC 272]. 74 AIR 1967 SC 829 [LNIND 1966 SC 277] [LNIND 1966 SC 277] [LNIND 1966 SC 277]: 1967 (1) SCR 1012; JAIN, Cases, Chapter XV, Sec. D(V). 75 H.R. Banthia v. Union of India, AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199]: H.R. Banthia v. Union of India, (1969) 2 SCC 166 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199]. 76 S.C. Dogra v. State of Himachal Pradesh, AIR 1984 HP 29 [LNIND 1983 HP 25] [LNIND 1983 HP 25] [LNIND 1983 HP 25]. 77 Also see the following cases on the licensing power : Ram Rachhpal v. Union of India, AIR 1960 Punj 439; Ganapati v. State of Ajmer, AIR 1955 SC 188 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168]: 1955 (1) SCR 1065; Karam Chand v. State of Bihar AIR 1958 Pat 378; S. Mukherjee v. State of West Bengal, 64 CWN 521 (1960); Ranchhorlalji v. Rev. Dew. Commr., AIR 1960 Ori 88; Corp. of Calcutta v. Tramways Co. Ltd., AIR 1964 SC 1279 [LNIND 1963 SC 227] [LNIND 1963 SC 227] [LNIND 1963 SC 227]: 1964 (2) Crlj 354 : 1964 (5) SCR 25 [LNIND 1963 SC 227] [LNIND 1963 SC 227] [LNIND 1963 SC 227]; Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh, AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188]: (1970) 1 SCC 764; Mohd. Hameed v. Collector, Hyderabad, AIR 1974 AP 119 [LNIND 1973 AP 95] [LNIND 1973 AP 95] [LNIND 1973 AP 95]. 78 AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]: 1960 (2) SCR 408. 79 AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224]: 1960 (2) SCR 609; supra, 406, 407;JAIN, Cases, Chapter XV, Sec. D(v). 80 Sukhwinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981 SC 450]: (1982) 1 SCC 31; supra, 267,782; JAIN, Cases, Chapter XV, Sec. D(v). Also see, Liberty Oil Mills v. Union of India, AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]: (1984) 3 SCC 465 : 1984 (2) Comp LJ 124. 81 AIR 1979 SC 314 [LNIND 1978 SC 247] [LNIND 1978 SC 247] [LNIND 1978 SC 247]: (1979) 1 SCC 285. 82 AIR 1979 SC 418 [LNIND 1978 SC 334] [LNIND 1978 SC 334] [LNIND 1978 SC 334]: (1979) 1 SCC 248. 83 AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199]: (1969) 2 SCC 166; JAIN, Cases, Chapter XV, Sec. D(v). 84 Manick Chand v. Union of India, AIR 1984 SC 1249 [LNIND 1984 SC 366] [LNIND 1984 SC 366] [LNIND 1984 SC 366]: (1984) 3 SCC 65 : (1984) 18 ELT 185; JAIN, Cases, Chapter XV, Sec. D(v). 85 AIR 1985 SC 1013 [LNIND 1985 SC 58] [LNIND 1985 SC 58] [LNIND 1985 SC 58], 1014 : (1985) 2 SCC 443 [LNIND 1985 SC 58] [LNIND 1985 SC 58] [LNIND 1985 SC 58] : (1985) 58 Comp Cas 1. 86 A.N. Parasuraman v. State of Tamil Nadu, AIR 1990 SC 40 [LNIND 1989 SC 492] [LNIND 1989 SC 492] [LNIND 1989 SC 492]: (1989) 4 SCC 683. 87 Supra, Chapter IX. 88 Sukhwinder Pal Bipin Kumar v. State of Punjab, AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981 SC 450]: (1982) 1 SCC 31. 89 AIR 1979 SC 25 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]: 1978 (2) LLJ 527 : (1978) 4 SCC 224 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]; JAIN, Cases, Chapter XV, Sec. D(v). 90 Workmen v. Meenakshi Mills, (1992) 3 SCC 336 [LNIND 1992 SC 411] [LNIND 1992 SC 411] [LNIND 1992 SC 411] : AIR 1994 SC 2696 [LNIND 1992 SC 411] [LNIND 1992 SC 411] [LNIND 1992 SC 411]: 1992 (2) LLJ 294. 91 Excel Wear v. Union of India, AIR 1979 SC 25 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]: 1978 (2) LLJ 527 : (1978) 4 SCC 224 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]. 92 (1995) 1 SCC 501 : AIR 1995 SC 2200 : 1995 (1) SLR 259; JAIN, Cases, Chapter XV, Sec. D(v). Presumption of consciousness of duties and obligations by higher authority in exercising power, Balram Kumawat v. UOI, (2003) 7 SCC 628 [LNIND 2003 SC 714] [LNIND 2003 SC 714] [LNIND 2003 SC 714] (para 43) : AIR 2003 SC 3268 [LNIND 2003 SC 714] [LNIND 2003 SC 714] [LNIND 2003 SC 714]. 93 Excel Wear v. Union of India, AIR 1979 SC 25 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]: 1978 (2) LLJ 527 : (1978) 4 SCC 224 [LNIND 1978 SC 270] [LNIND 1978 SC 270] [LNIND 1978 SC 270]. 94 AIR 1954 SC 747 [LNIND 1954 SC 121] [LNIND 1954 SC 121] [LNIND 1954 SC 121]: 1955 (1) SCR 686.

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95 AIR 1954 SC 307 [LNIND 1954 SC 38] [LNIND 1954 SC 38] [LNIND 1954 SC 38]: 1954 SCR 982. 96 AIR 1955 SC 33 [LNIND 1954 SC 129] [LNIND 1954 SC 129] [LNIND 1954 SC 129]: 1955 (1) LLJ 129 : 1955 (1) SCR 752 [LNIND 1954 SC 129] [LNIND 1954 SC 129] [LNIND 1954 SC 129]. 97 The validity of the Act was sustained again in C.B. Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042 [LNIND 1969 SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368]: (1970) 1 SCC 43. 98 See also under heading : Statutory Inquiries, Chapter XVI. 99 Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND 1966 SC 132]: (1966) 36 Comp Cas 639. 1 For detailed discussion on S. 132, I.T. Act, see, supra, Chapter XVI. 2 Pooran Mal v. Director of Inspection, AIR 1974 SC 348 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]: (1974) 1 SCC 345 : (1974) 93 ITR 505 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC 400]. 3 M.P. Sharma v. Satish, AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND 1954 SC 40]: 1954 Crlj 865; Commr. of Commercial Taxes v. R.S. Javer, AIR 1968 SC 59 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]: (1967) 66 ITR 664 : 1968 (1) SCR 148 [LNIND 1967 SC 224] [LNIND 1967 SC 224] [LNIND 1967 SC 224]. Also see, Chapter XVI. 4 Corporation of Calcutta v. Calcutta Tramways Co. Ltd., AIR 1964 SC 1279 [LNIND 1963 SC 227] [LNIND 1963 SC 227] [LNIND 1963 SC 227]: 1964 (2) Crlj 354. See, infra, under Judicial Control for Finality Clauses. 5 AIR 1959 SC 626 [LNIND 1959 SC 10] [LNIND 1959 SC 10] [LNIND 1959 SC 10]: 1959 Supp (2) SCR 123. 6 AIR 1960 SC 475 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]: 1960 Crlj 664 : 1960 (2) SCR 627 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]. See also, Sri Krishna v. Dy. Director, AIR 1960 CT 431. 7 AIR 1972 SC 1690 [LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC 596]: 1972 (2) SCR 526. 8 AIR 1974 SC 366 [LNIND 1973 SC 360] [LNIND 1973 SC 360] [LNIND 1973 SC 360]: (1974) 1 SCC 468. 9 Saraswati I. Syndicate v. Union of India, AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257]: (1974) 2 SCC 630. 10 New India Industrial Corp. Ltd v. Union of India, AIR 1980 Del 277 [LNIND 1980 DEL 155] [LNIND 1980 DEL 155] [LNIND 1980 DEL 155]. 11 Union of India v. Bhanamal Gulzarimal, AIR 1960 SC 475 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]: 1960 Crlj 664 : 1960 (2) SCR 627 [LNIND 1959 SC 228] [LNIND 1959 SC 228] [LNIND 1959 SC 228]. 12 Prag Ice and Oil Mills v. Union of India, AIR 1978 SC 1296 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69]: 1978 Crlj 1281 : (1978) 3 SCC 459 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69]. See also, Welcome Hotel v. State of Andhra Pradesh, AIR 1983 SC 1015 [LNIND 1983 SC 206] [LNIND 1983 SC 206] [LNIND 1983 SC 206]: (1983) 4 SCC 575. 13 Diwan Sugar Mills v. Union of India, AIR 1959 SC 626 [LNIND 1959 SC 10] [LNIND 1959 SC 10] [LNIND 1959 SC 10]: 1959 Supp (2) SCR 123; Saraswati I. Syndicate v. Union of India, AIR 1975 SC 4