ADMINISTRATIVE LAW

Q.No.1. Define Define Administrative law. discuss the nature and scope of
Administrative law.

General:- The most significant and outstanding development of the twentieth Century
is the rapid growth of administrative law. It does not, however, mean that there was no
administrative law before this century. Since many years, in one form or the other, it
has been very much in existence.

Definition of Administrative Law:- Many jurists have made attempts to define it, but
non of the definition has completely demarcated the nature, scope and content of
administrative law either the definition are too broad and include much more than
necessary or they are too narrow and do not includes all the necessary ingredients. For
some it is the law relating to the control of powers of the Government. The main
object of this law is to protect individual right other places greater emphasis upon
rules which are designed to ensure that the administrative effectively performs the
tasks assigned to it.

Ivor Jennings:- Administrative law is the law relating to the administration. It

determines the organization, powers and duties of the administrative authorities. This
is the most widely accepted definition.

Wade:- According to wade, administrative law is the law relating to the control of
Government. According to him, the primary object of administrative is to keep
powers of the Government within the legal bounce so as to protect the citizens against
their abuse.

Nature & Scope of Administrative Law:-

Administrative law deals with the power of the administrative authorities, the
manner in which the powers are against their abuse.

Administrative law deals with the power of the administrative authorities, the
manner in which the powers are excised the remedies which are available to the
aggrieved persons, when those powers are abused by these authorities. The main
object of the study of administrative law is to unravel the way in which these
administrative authorities could be kept within their limits so that the discretionary
powers may not be turned into arbitrary powers.

Reasons for the growth of Administrative law:-

1) There is a radical change in the philosophy as to the role played by the state.
The State has not confined its scope to the traditional and minimum functions

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 of defense and administration of justice, but has to adopt the positive policy
and as a welfare State has undertaken to perform varied functions.
2) The judicial system proved inadequate to decide and settle all types of disputes.
It was slow, costly, inexpert & formalistic. It was already overburdened, and it
was not possible to expect speedy disposal even very important matters, for
example, disputes between employers & employees, lock-outs, strike, etc, This
burning problems could not be solved merely by literally interpreting the
provisions of any statute, but require consideration of various other facts and it
could not be done by the ordinary courts of law. Therefore , industrial tribunals
and labour courts were established, which posses the techniques and expertise
to handle this complex problem.
3) The legislative process was also inadequate. It had no time and technique deal
with all the details. It was impossible for it to lay down detailed rules and
procedures , and even when detailed provisions were made by legislature, they
were found to the defective and inadequate ,e.g., rate fixing .And therefore , it
was felt necessary to delegate some powers to the administrative authorities.
4) When scope for experiments in administrative process. Here a rule can be
made, tried for some time and if it is found defective, it can be altered or
modified within a short period. Thus, legislation is rigid in character while the
administrative process is flexible.
5) The administrative authorities can avoid technicalities. The traditional judiciary
is conservative, rigid and technical. The administrative tribunals are not bound
by the rules of evidence and procedure and they can take a practical view of the
matter to decide complex problems.
6) Administrative authorities can take preventive measures e.g., licensing, rate
fixing ,etc, unlike regular courts of law, they have not to wait for parties to
come before them with disputes. In many cases, these preventive action may
prove to be more affective and useful than punishing a person after he has
committed a breach of any provision of law.
7) Administrative authorities can take effective steps for enforcing of the
aforesaid preventive measures, e.g., suspension, revocation and cancellation of
license, destruction of contamination article, etc. Which are not generally
available through regular courts of law.

Q.No.2.Discuss the Parliamentary Control on delegated legislations in

India.

M.P.Jain states In a parliamentary democracy it is the function of the

legislative to legislate. If it seeks to delegate it legislative power to the

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 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 responsible 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.

Object:-
Thus, the underlying object of parliamentary control is to keep watch
over the rule-making authorities and also to provide an opportunity to criticize
them if there is abuse of power on their part.
Legislative Control can be effectively exercised by:
(i) Laying on Table, and
(ii) Scrutiny Committees.

Laying on the Table:

In almost all the Commonwealth Countries, the procedure of Laying on

the Table of the legislature is followed. It serves two purpose, firstly, it informs the
legislature as to what rules have been made by the executive authorities in executive
authorities in exercise of delegated legislative power, and secondly, it provides an
opportunity to the legislators to question or challenge the rules already made or
proposed to be made. Through this Safety-Value, the legislature exercises
supervision, check and control over executive rule-making power. Laying technique
brings legislature into close and constant contact with the administration.

Types:

There are several types of laying. The extent of legislative control necessarily
differs in these cases. The select Committee on Delegated Legislation summarized the
procedure under seven heads.

(1) Laying without further provision for control:- Here the Parent Act merely
provides that the rules shall be laid before Parliament. They become operative
from the date they are laid before the Houses and in exceptional cases, even
before they are so laid. This is only to inform Parliament as to what rules were
made by executive authorities.
(2) Laying with deferred with operation- The requirement of lying is link with
postponement of operation of the rules and thus parliament gets more control.
(3) Laying with immediate with effect but subject to annulment here the rules
come into force when laid before parliament, but ceases to be in operation if

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 disapproved by it within a specified period. As may comments, This is the
most common form of parliamentary control and is known as the Negative
resolution procedure.
(4) Laying in draft but subject to resolution that no further proceedings be taken-
This is also a Negative resolution procedure. Here draft of statutory Rules are
required to be laid before parliament but the Parent Act provides that the rules
should not be made effective until a particular period has expired.
(5) Laying in draft and requiring affirmative resolution This belongs to the
realm of Positive resolution and provides a stringent parliamentary
supervision over delegated legislation unlike the negative resolution
procedure. The draft rules do not become effective until an affirmative
resolution approving the same has been passed by parliament. An opportunity
is provided to the members to discuss and react the rules before they can finally
given effect to by the executive.
(6) Laying with operation deferred until approval given by affirmative resolution-
Here the rules are actually made but do not come into operation until approved
by parliament. There is virtually no difference between this procedure and a
positive resolution procedure , discuss under head (5).
(7) Laying with immediate effect but requiring affirmative resolution as a
condition for continuance-This form of laying is used where prompt operation
of delegated legislation is essential but strict parliamentary supervision is also
necessary. The confirmatory resolution keeps the delegated legislation alive,
which would otherwise die. It is often applied in cases of taxation or to rules
made during emergency.

In India, there is no statutory provision requiring Laying of all delegated

legislation. According to the committee on delegated legislation, the statues contain
four methods of lying:

(1) Requirement of mere publication of rules in the official Gazette,

(2) Requirement of such publication or laying on the table,
(3) Over and the above aforesaid to conditions, some statutes allowed modification
by parliament, and
(4) Requirement of laying of rules for specified period be for they are published in
the Official Gazette.

Suggestions:-

As there was no uniform practice in the laying procedure, the Scrutiny

Committee made the following suggestions:

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 (i) All acts of parliamentary should uniformly require that the rules shall
be laid on the table of the House as soon as possible.
(ii) This period should be uniform and should be a total period of thirty days
from the date of their final publication, and
(iii) The rules will be subject to such modification as the Houses may like to
make.

Effective Laying:-

When the act merely requires laying of rules before Parliament , they come into
force as soon as they are made. If the parent act provides affirmative procedure, they
will be effective from the date they are approved by the House. The laying
procedure, however, does not confer on rules, status equal to the Act in absence of
specific provision in the parent statutes.

Failure to lay:-

In England, the position is not clear. In Bailey v/s Williamson, the condition of
laying was held to be directory. However, the position has changed after passing of
the Statutory Instrument Act, 1964 and in R v/s Sheer Metal Craft, the court held that
delegated legislation became valid only after it was laid before parliament.

In India also, the position is not categorical. In Express Newspaper (P)Ltd. v/s
Union of India, the Supreme Court observed by way of obiter dicta that the provision
regarding laying was mandatory.

Conclusion:- What are the consequences of failure to lay? It is submitted that the
correct answer to this question depends on the terms relating to a particular laying
clause. If the provision relating to the laying is a condition precedent, the requirement
of laying must be held to be mandatory and the rules do not come into force until they
are laid. In case of negative clause, however, the rules come into operation
immediately and the provision of laying is generally construed as directory.

Q.No.3.Dicuss the various exception to the principle of Natural justice with the
help of decided cases:-

The principle of Natural justice, originated from common law in England are
based on two latin maxims,

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 1) Nemo judex in causa sua or Nemo debt esse judex in propria causa
or Rule against bias.
2) Audi Alteram partem or Rule of Fair hearing(hear the other side).

Rule against bias:- The term bias means anything which tends to or may be regarded
as tending to cause such a person to decide a case otherwise than on evidence must be
held biased. The principle is based on the following rules.

i) No man should be a judge in his own cause.

ii) Justice should not only be done, but manifestly and undoubtedly be seen to
be done, and
iii) Judges like Ceasers wife should be above suspicion.

The rule against bias may be classified under the following three heads.

i) Pecuniary bias,
ii) Personal bias, and
iii) Bias as to subject matter.

Audi Alteram Partem or the rule of fair hearing.

The second fundamental principle of natural justice is Audi Alteram Partem or

The Rule of Fair Hearing. It means no one shall be condemned unheard i.e. there
must be fairness on the part of the deciding authority. According to this principle,
reasonable opportunity must be given to a person before taking any action against
him.

Essentials of Fair Hearing.

i) Notice, and
ii) Hearing.

Though the rules of natural justice, viz, nemo judex in causa and audi alteram
partem, have now a definite meaning and connotation in law, and their content and
implication are well understood and firmly estabilished, they are nonetheless not
statutory rules. Each of these rules yields to and change with the exigencies of
different situations. They do not apply in the same manner to situations which are not
alike.

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 These rules are not cast in a rigid mould not can they be put in a legal strait
jacket. They are not immutable but flexible. These rules can be adopted 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. There are
situations which demand the exclusion of the rules of natural justice by reason of
diverse factors like time, place, the apprehended danger and so on.

Circumstances:-

In the following cases, the principles of natural justice may be excludes.

(1) Where a statute either expressly or by necessary implication excludes

application of natural justice
(2) Where the action is legislative in character , plenary or subordinate,
(3) Where the doctrine of necessity applies,
(4) Where the facts are admitted or undisputed,
(5) Where the inquiry is of a confidential nature,
(6) Where preventive action is to taken,
(7) Where prompt and urgent action is necessary,
(8) Where nothing unfair can be inferred by non-observance of natural justice.

Conclusion:- One thing should be noted. Inference of exclusion of natural justice

should not be readily made rules unless it is irritable, since the courts act on
presumption that legislature intends to observe the principles of natural justice and
those principles do not supplant but supplement the law of the land. Therefore, all
statutory provisions must be read, interlaw of the land. Therefore, all statutory
provisions must be read, interpreted and applied so as to be consistent with the
principles of natural justice.

It is submitted that the following observations of Chandrachud, C,J. in the

leading case of Olga Tellis v/s Bombay Municipal Corpn. Lay down correct
proposition of law. His Lordship observed.

The ordinary rules which regulars all procedure is that persons who are likely
to be affected by the proposed action must be afforded an opportunity of being heard
as to why that action should not be taken. The hearing may be given individually or
collectively, depending upon the facts of each situation. A departure from this
fundamental rule of natural justice may be presumed to have been intended intended

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by the legislature only in circumstances which warrant it. Such circumstances must be
who affirm their existence.

Q.No.4. Discuss the scope of Writ of Mandamus for judicial review of

Administrative action:

Nature and Scope:- Mandamus means a command. It is an order issued by a court to

a public duty imposed upon it by the constitution or by any other law.

Mandamus is a judicial remedy which is in the form of an order from a superior court
(the supreme court or a High court) to any Government, Court, Corporation or public
authority to do or to forbear from doing some specific act which that be, and which is
in the nature of a public duty and in certain cases of a statutory duty.

Mandamus distinguish from other writs:-

Mandamus differs from Prohibition and Certiorari in that while the

former can be issued against administrative authority, the latter are available against
judicial and quasi- judicial authorities. Mandamus acts where the authority declines
jurisdiction and Certiorari act where the courts and tribunals usurp jurisdiction vested
in them or exceed their jurisdiction. Where Mandamus demands activity, Prohibition
commands inactivity, while mandamus compels, Certiorari corrects.

Mandamus is a command to a person to do something which is his legal duty, quo-

warranto is directed to a person by what authority he is claiming a public office.

A Writ of mandamus can be issued if the following conditions are satisfied by a

petitioner:

The Petitioner must have a legal right. Thus, when then the Petitioner
contended that his juniors had been promoted by the Government and he had been left
out, and it was found that the Petitioner was not qualified for the post, his petition was
dismissed.

Legal duty:-

A legal duty must have been imposed on the authority and the performance of
the duty should be imperative, not discretionary or optional. Thus, if at its own
discretion, government makes a rule to grant dearness allowance to its employees,
there is no legal duty and the writ of mandamus cannot be issued against the
Government for performance of the duty. If the public authority invested with

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discretionary power, or exceeds it, or acts malafide, or there is non-application of
mind by it, or irrelevant considerations have been taken into account, the writ of
mandamus can be issued.

Demand and Refusal:-

The petition for a writ of mandamus must be preceded by a demand of justice

and its refusal. In Halsburys Laws of England, it is stated.

As a general rule the order will not be granted unless the party complained
of has known what it was he was required to do, so that he had the means of
considering whether or not he should comply, and it must be shown by evidence that
there was a distinct demand of that demand was met by a refusal.

Good faith:-

An application for mandamus must been made in good faith and not for
any ulterior motive or oblique purpose. A petitioner for mandamus albeit made in
good faith, will not be granted if designed to harass the respondent or with a view to
wreak personal grievances.

Who may apply:-

A person whose right has been infringed may apply for the writ of
mandamus. Such right must be subsisting on the date of filling the petition. Thus, in
case of an incorporated company, the petition must be filed by the company itself. In
case any individual makes an application for the enforcement of any right of an
institution, he must disclose facts to relate what entitled him to make an application on
behalf of the said institution.

Against Whom Mandamus would lie:-

A Writ of mandamus is available against Parliament and Legislature,

against courts and tribunals, against the Government and its officers, against local
authorities, panchayats, against State owned or State-Controlled Corporations, against
Universities and other Educational institutions, against Election authorities and against
other authorities falling within the definition State under Article 12 of the
Constitution.

Against Whom Mandamus would not lie:-

A Writ of Mandamus will not lie against the President or the

Governor of a state for the exercise and performance of powers and duties of his

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office or for any act done or purporting to be done by him in the exercise and
performance of those powers and duties. It will not lie against the State Legislative to
prevent them from considering enacting a law alleged to be violative of constitutional
provision. It will not lie against an inferior or ministerial officer who is bound to obey
the orders of his superior. The Writ of mandamus will not be granted against one
who is an inferior or ministerial officer, bound to obey the orders of a competent
authority, to compel him to do something which is part of his duty in that capacity. It
also does not lie against a private individual or any incorporate body.

Alternative remedy:-

A writ of Mandamus will not be refused on the ground of

alternative remedy being available if the petitioner approaches the court with an
allegation, that his fundamental rights has been infringed.

Conclusion:-

The position of mandamus in India is indeed very encouraging. It is the

most popular writ, extensively and successfully used by aggrieved persons. Since the
object of Public Law is to make functioning of administrative bodies in an efficient
manner yielding the best results to the State, Society and the individuals without
undue delay or costs, it is the duty of Courts to hold this process through the
instrumentality of writs, more particularly by a writ of mandamus. It is submitted that
the following observations of Baron Martin, lay down correct proposition of law and
therefore, worth quoting:

Instead of being astute to discover reasons for not applying this great
constitutional remedy for error and mis-government, we think it our duty to be vigilant
to apply it in every case to which, by any reasonable construction, it can be made
applicable.

Q.No.5. Critically examine the various controls over Public Corporations in

India.

The main purpose of establishing public corporation is to promote economic

activity through autonomous bodies. In fact, these corporations have been granted
very wide powers and there is no interference by any authority in exercise of these
power by the corporations. Yet ,it is necessary that some control over these

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corporations should be there so that the powers conferred on such corporations may
not be arbitrarily exercised or abused, and it may not become the headless fourth
organ of the Government .

Judicial Control:-

Since a public corporation is a legal entity it can sue and be sued. It

is a body corporate having perpetual succession and a common seal. Jurisdiction of
court over a public corporation is the same as it over any private or public company
except that the powers of the former depend on the provisions of a special statute
while the powers of a company are derived from the terms of its Memorandum of
Association. Accordingly, a public corporation is liable for a breach of contract and
also in tort for tortuous acts of its savants like any other person. It is liable to pay
income tax unless expressly exempted and cannot invoke the exemption granted to the
State under Article 289 of the Constitution of India. It is bound by a statute. It cannot
claim Crown Privilege.

Traditional View:-

According to the traditional theory, since a public corporation is

created by a statute, it is required to exercise its powers within the four corners of the
constituent statute. Therefore if a Corporation exceeds its authority, the action may be
declared ultra vires.

Modern View:-

Modern State is not merely a Police State performing Law and

Order functions, but has become a welfare State, which acts through statutory
corporations have become a third arm of the Government. They perform functions
which are other-wise to be performed by the Government. Being a creation of the
State, a public corporation must be subject to the same Constitutional limitations as
the State itself.

Powers and Duties of Courts:-

It is true that public corporations must have liberty in

framing their policies. It cannot, however, be over looked that such power is not
absolute or blanket. If it is shown that exercise of power is arbitrary, unjust or unfair,
an instrumentally of State cannot contend that its action is in accordance with the
letter of law. Whatever may be the activity of a corporation, it must be subject to

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rule of law and should meet the test of Article 14 of the Constitution. It is not only the
power but the duty of a court of law to see that every action of an instrumentally of the
State is informed by reasons, guided by public interest and conforms to the preamble,
Fundamental Rights and Directive Principles of the Constitution.

Government Controls:-

As the judicial control over public corporations is not

effective, it needs to be supplemented by other controls. Government also exercises
some control and supervision over such corporations as the custodian of public
interest in different ways.

Appointment and Removal of Members:-

Generally the power of appointment and removal of the Chairman

and the members of a public corporation is vested in the Government. In some
statutes, a provision is made for removal of a member on the ground that the member
is absent from meetings for a specified period, he is adjudged a bankrupt or is
otherwise unsuitable to continue as a member.

Finance:-

The Government exercises effective control over a public corporation

when such corporation is dependant on the Government for finance. A statute may
require previous approval of the Government for undertaking any capital expenditure
exceeding a particular amount. It may also provide to the Government its programme
and budget for the next year and to submit the same in advance. It may also impose a
condition on the corporation to take consent of the Government before borrowing
payment made by the Government to the Corporation.

Rules and Regulations:-

The provision empowers the Central Government to make rules to

give effect to the provisions of the Act.

The other provisions authorize the Corporation with the prior approval of
the Central Government to make regulations not inconsistent with the Act and the
Rules made there under for enabling it to discharge its functions under the Act. Thus,
even in case of framing rules and regulation, the Government is having the upper
hand. Regulations promulgated without previous approval of the Government cannot
be said to be valid.

Parliamentary Control:-

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 Public corporations are created and owned by the State,
financed from public funds and many a time they enjoy full or partial monopoly in the
industry, trade or business concerned. They are expected to exercise their powers in
the public interest. It is, therefore, necessary for parliament to exercise some degree
and mode of control and supervision over these corporations.

Statutory provisions:-

All public corporations are established by or under statutes passed

by Parliament or State legislatures. If any corporation exceeds or abuses its powers,
Parliament or the State legislature can even abolish the said corporation.

Debates:-

A more significant and effective method of Parliamentary control is a debate

on the affairs of the public corporation. This may take place when the annual accounts
and reports regarding the corporation are place before Parliament for discussion in
accordance with the provision of the statute concern. There is no general obligation on
the part of all corporations to present their budget estimates to Parliament. Estimates
committee, therefore, recommended the corporations should prepare a performance
and programme statement for the budget year together with the previous years
statement and it should be made available to parliament at the time of a annual budget.

Parliamentary Committees:-

Parliament is a busy body and it is not possible for it to

go into details about the working of these corporations. Parliament has, therefore,
constituted the committee on public undertakings in 1964. The functions of the
committee are to examine the reports and accounts of the public undertaking, the
examine the reports, if any, of the comptroller and Auditor-General on the public
corporations, to examine in the context of the autonomy and efficiency of the public
corporations, whether their affairs are being man aged in accordance with sound
business principles and prudent commercial practices.

Control by Public:-

IN the ultimate analysis, public corporations are established for

the public and they are required to conduct their affairs in the public interest. In the
ultimate analysis, public enterprises are owned by the people and those who run them
are accountable to the people. It is, therefore, necessary that in addition to judicial,
parliamentary and Governmental control, these corporations must take into account
the public opinion also.

Consumer Councils:-

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 The outstanding example of consumer councils are to be found in
the electricity and gas industries. The difficulty about these councils is that the
members of the general public have neither the technical knowledge nor a keen
interest in the affairs of certain consumer councils, e.g. Gas or Electricity Consumer
Councils. These councils may make recommendations to their area boards, but there
have been very few occasions when alternations of policy decisions have resulted.

Membership:-

Parliament has arranged for members of certain public corporations

to be nominated by local authorities and other bodies interested in the functions of the
particular corporation. Thus, members of the Hospital Management Committees are
appointed by the Regional Hospital Boards after consultation with local health
authorities.

Consumer and Courts:-

Due to rapid development of administrative law and

consciousness of rights by vigilant citizens, there is a clear tendency on the part of the
consumers to approach courts for the purpose of ventilating their grievances. More
and more cases are coming before the courts by consumers in their individual capacity
or through some organization by way of public interest litigation. The Courts have
granted appropriate relief even to individual consumers whenever justice required.

Consumer Protection Act:-

With a view to provide for better protection of the interests

consumers and for that purpose to make a provision for the establishment of
Consumer Councils and other authorities for the settlement of Consumers disputes
and for matters connected therewith. Parliament enacted the Consumer Protection Act,
1986. The Act provides for establishment of consumer protection councils, and also
sets up machinery for settlement of consumer disputes.

Conclusion:-

From the above discussion, it is clear that public corporations must be

autonomous in their day to day working and there should be no interference by the
Government in it.

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Q.No.6. The rapid growth and development of administrative law in india has
become the foundation stone of modern political philosophy. Explain.

Administrative law is the outcome of the growing functions of the state. The
Government in the modern day has entered into various socio-economic activities.
The State has undertaken various schemes of development, planning and welfare
activities which is effecting the day to day functioning of a person. To manage all its
functions the Government created certain administrative heads and vest4ed it with
certain powers when these powers were exercised by the administrative heads they
came into direct conflict with the rights of the citizen. To overcome this situations
certain principles were laid down which emerged as a separate branch of public law
known as the administrative law.

Reasons for the growth of Administrative law:-

1) Changing functions of the Government:- The government has increased its

functions from purely being a policing authority to that of a welfare ministry.
The government earlier had to concentrate only in protecting the life and
property of the people but due to technological and scientific advancement the
government was trust upon the duty of implementing various welfare schemes.
2) Industrialization and Urbanization:- Heavy industrialization has resulted in
over crowded cities which in turn creates a problem of health and sanitation.
The government has to intervene in the interest of public safety and health.
Consequently the function of the State extended to health, education,
employment, old age pensions, production and distribution of essential
commodity . In order to discharge these above functions the administration has
to be armed with legislative power.
3) The increased powers of the administrative authorities warranted an effective
control over their exercise:- Over concentration of power resulted in
corruption of abuse of power. Administrative law tries to negate these evils by
providing for a suitable control.
4) Speedy and simple modes of adjudication:- There has been tremendous
increase in the litigation against the State on account of its extensive
interference in public life and activities many a time the dispute is of technical
nature which requires a specified knowledge to adjudicate. Be it in the area of
industry, labour, customs, exercise, tax, services etc. To resolve these dispute
the establishment of administrative tribunal becomes necessary.
5) Decentralization of economic resources:- The concept of welfare of the people
by securing and protecting the economic resources of the country. To avoid top
sided growth in the section of the society equal distribution of economic

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 resources has to be done. The state is to make provisions for securing human
conditions of work and living wages.
Conclusion:-The above mentioned reasons are the rapid growth and
development of Administrative law in India has become the foundation stone
of modern political philosophy.

Q.No.7. Explain the Doctrine of Ultra-Vires refer decided cases.

The 20th Century has seen an increase in its functions for an effective
governance a good number of administrators have to be appointed with certain
rule making power some of the powers of the legislators have to be delegated.
It basically consists of rules made by the executive.
Causes for the growth of Delegated legislation.
1) Pressure of Parliamentary work.
2) Technicality of the matter.
3) To meet unforeseen contingencies.
4) Expediency and Flexibility.
5) Emergency

Control and safeguards on Delegated legislation:-

Controls introduced over delegated legislation may be divided

into 3 categories. 1) Judicial control, 2) Legislative control, and 3) Other type
of controls.

1) Judicial Control:- In all democratic Countries it is beyond question that

judicial review is an important control over delegated legislation. The judicial
can determine the validity of delegated legislation on the ground of a)
substantive ultra vires and b) procedural ultra vires .

Substantive ultra vires:- Delegated legislation is substantively ultravires

if it goes beyond what a delegate is authorized to act. Whenever a delegated
legislation crosses the limits laid down by the Parent Act it can be held as
ultra vires by the Court . Acting in excess of the power given is ultra vires.
A delegated legislation may be held be invalid on the ground of substantive
ultra vires in the following circumstances.
The first requirement for a delegated legislation to be valid is that the parent
act is within the constitutional norms of rule of law making. If the act itself
is unconstitutional then the rule made under the act also becomes ultra
vires. In the case of Chintaman Rao v/s State of M.P (AIR 1951 SC 118)

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In this case the Parent Act authorized the deputy commissioner to prohibit
the manufacture of Beedis in some areas during certain period. The deputy
commissioner order passed under the act was held as ultra vires in as much
as the parent act itself was unconstitutional which violated the fundamental
rights to carry on any trade or occupation.

Where delegated legislation is unconstitutional.

IN the case of Himmath lal v/s Commissioner of Police(AIR 1973 S.C
87) Sec 93 of the Bombay Police Act 1951, empowered the police
commissioner to make rules for regulating the conduct and behavior or
action of persons constituting assemblies and processions along the streets.
The Police commissioner made a rule there under and provided that no
public meetings to be held without the permission of the commissioner .
This rule was held ultra vires by the court as it conferred arbitrary powers
on the commissioner and also imposing unreasonable restrictions on the
fundamental rights.

Procedural ultra vires:- The subordinate legislation has to follow certain

procedural requirement before the rule is enforced where a delegated or
subordinate legislation fails to comply with certain procedural requirements
prescribed by the act then it is known as procedural requirements can be
either be mandatory or directory. Non -Obeyance of a directory requirement
will not invalidate the subordinate legislation. Whether a requirement is
mandatory or directory can only be made out by reading the act. There are 2
procedural requirements generally prescribed by the statute. A) Publication,
b) Consultation.

Publication:- The publication of a rule has an advantage of giving wide

coverage to a rule. Thereby giving information to the general public on the
implementation of a law . In India there is no legislation as in America or
England which requires publication of delegated legislation yet the courts
have treated that publication of delegated legislation is an essential
requirement for its validity as held in the case of Harla v/s State of
Rajasthan AIR1951 SC 467.
In the case Raza Buland Sugar Co.v/s Rampur Muncipality AIR1956
Sc 895. The Supreme Court held that the statutory provision requiring
publication of rules before imposition of a tax was mandatory but the
manner in which the rules were to be published was directory.

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 Consultation:- One of the important meaner to check and control the
exercise of is a technique of consultation. Consultation gives an opportunity
to the effect that parties to present their case before their administration
authority. It makes rule making more democratic. Consultation can be of
the following types.
Individual Consultation.
Consultation with specified interest.
Approval by a statutory body.
Submission of draft rules by the affected group.

2) Legislative Control:- The legislature can retain some of its powers over the
subordinate legislation by effectively exercise control over it. Generally it is
done in the following manner.
Laying on the table
Scrutiny Committee

a) Laying on the table :- It is a procedure adopted in almost all common

wealth Countries. It has 2 advantages. 1) It informs all the members of the
legislature as to what rules have been made by the executive. 2) It gives an
opportunity for the legislators to challenge the rules already made.

Laying on the table is of the following types.

i) Laying without further provision for control.

ii) Laying with deferred operation.
iii) Laying with immediate effect but subject to annulment.
iv) Laying a draft requiring affirmation.

b) Scrutiny Committee:- In many Countries specified Committees are

appointed to go into the aspect of the pros and cons of a delegated
legislation. In India there is a comm8ittee of Loksabha on sub-ordinate
legislation and there is committee on sub- ordinate legislation of
Rajyasabha.

3) Other forms of Control:- Apart from judicial and legislative control

sometimes there are safeguards provided over the abuse of power by the
delegated authority. These controls are exercised by the 1)ministers in charge,
2)by individual groups, 3)by certain specific provisions in the Act,4)by putting
pressure on the executive authority.

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Conclusion:- If the administrative authority ulta vires the law then as above
discussed various method will control the administrative authority.

Q.No.8. Audi Alterm Partem in sine qua non of fair hearing. Discuss
with the help of decided cases.

Audi Alterm Partem means no man should be condemned unheard or both

parties or both sides must be heard before passing any order. It is a well
established norm of human society that a man cannot incur loss of his liability
and properly without giving him an opportunity to be heard. The maxim Audi
Alterm Partem includes 2 things.

1) Notice:- Any order passed without giving a notice to the party would
violate the principle of natural justice. Even if the statute is silent on the
question of notice, notice must be given if it affects the rights of an
individual. The notice must be a sufficient notice which affords a
reasonable opportunity to put forth the claims.
2) Hearing:- The second important requirement of the maxim is that an
opportunity must be given before any adverse action is taken. Ridge v/s
Baldwin which has been described as Magna Carta of Natural Justice
lays down the rules that not giving an opportunity to be heard would
violate the basic principles of Natural Justice. In this case a chief constable
had been prosecuted and acquitted on the charges of conspiracy. In the
course of the judgment. The presiding Officer of the court made certain
remarks against the character of the police officer. These observation was
taken into consideration by the watch committee.
3) Oral or Personal hearing:- The adjudicating authority must be impartial
and without any bias and it is not necessary that the oral or personal hearing
should be given in all cases unless the statute itself provides.
4) Right of Counsel:- The right of representation by a lawyer is not
considered to be a part of natural justice and therefore a party cannot as of
right claim the right of representation however the general practice has been
that many of the statutes provides for representation by a lawyer.
Representation would be advisable when the matter is special skills in
arguments and presentation of the case.

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Speaking Orders or Reasoned Decision:- A Speaking Order is an order which
speaks for itself. It is an accepted norms that every order must contain reason in
support of it. A party has not only the right to know the result but also the reasons in
support of the decision . A reasoned decision satisfies the following,

1) It gives scope for judicial review.

2) It prevents the authority from being arbitrary.
3) It gives satisfaction to the party against whom the order is made.
In the case of S.N.Mukerjee v/s Union of India, the Supreme Court observed
that except in cases where the requirement of recording of reasons has been
dispensed with expressly or by necessary implication an administrative
authority exercising judicial or quasi judicial functions must record the reasons
for the decision.

Post Decisional hearing.

There general rule regarding Audi Alteram Partem is sometimes substituted by post
decisional hearing. A Post Decisional hearing means giving an opportunity to be
heard after the authority has taken a decision in circumstances where it is not possible
or expedient to give an opportunity to the party it would be sufficient to give a hearing
after the decision has been arrived. A contention in the case of Maneka Gandhi v/s
Union of India by the Government of India by the government prosecutor that the
application of the principle of Audi Alteram Partem would have frustrated the very
purpose of impounding the passport was negative by the Supreme Court.

IN cases where certain emergency conditions have arised or for the safety and health
of the people post decisional hearing would be held valid.

Grounds for exclusion of Principles of Natural Justice

1) Statutory exclusion:- The Principle of natural justice operates only in areas

not covered by any law validly made. The Principles of natural justice do not
supplement the law. Therefore if a statute expressly rules out the application of
the principles of natural justice and the court ignore the mandate of the
legislature.
2) Legislative Acts:- The legislative acts are not subject to the principles of
natural justice. It is presumed that the legislature is acting in good faith to
protect the interest of public.
3) Necessity:- The doctrine of necessity applies not only to judicial matters but
also to quasi- judicial and administrative matters. The reason for excluding the

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 principle of natural justice on the ground of necessity should be real and
genuine.

Q.No.9. Judicial Review of Administrative Discretion.

Administrative discretion has assumed importance in the functioning of the modern

government. An administrator administer the law enacted by the legislature. He also
sometimes enacts rules and on fewer occasions he may interpret the law itself, so
practically all the powers are concentrated in the administrator. According to Prof.
Freund Administrative Discretion means that a decision may be reached in part at
least not entirely on the basis of proof. The Administrative authority may take a
decision based on governmental policies rather than on individual merits.

Discretionary power are of different types. It may be very simple such as maintenance
of births and deaths register or very serious like acquisition of property etc.

Generally the courts have exercised caution in interfering in the discretionary power
of the administrative authorities. However since power trends to corrupt a person,
absolute power trends to corrupt him absolutely, the courts have felt that certain legal
limits must be laid down to control the discretionary power of the authority. The
purpose of judicial review is to ensure that the individual receive fair treatment and
therefore in judicial review the process of decision making is reviewed and not the
decision.

Grounds of Judicial Review.

Failure to excessive of discretion:-

Sub-delegation:- Discretionary power in general must be exercised only by the

authority to which it has been given. When a power is given to a person it indicates
trust being placed on that individual such a power cannot be sub-delegated. Sub-
delegation of discretionary power results in failure to exercise discretionary power.

Imposing fetters on discretionary by self-imposed rules of policy:- An authority

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

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In Keshavan Bhaskaran v/s State of Kerala. The relevant rule provided that no
school leaving certificate could be granted to any person unless he had completed 15
years of age. The director was given direction in releasing this rule in deserving cases
but in fact the director made an invariable rule of not granting exemption unless the
deficiency in age was less than 2 years. The Court held that the rule was contrary to
law.

Acting under dictation:-Sometimes an authority entrusted with the power does not
exercise that power by himself, he acts under the dictation of a superior authority. In
such cases the court can quash the orders of the authority on the ground that there was
failure to exercise discretion by the authority himself.

In the case of Commisssioner of Police v/s Govardhan Das Bhanji AIR1952

S.C.16, Under the Bombay Police Act 1902 the Commissioner of police granted
license for the constitution of a cinema theatre. But later on he cancelled it at the
direction of the state government. The Supreme Court set aside the order of the
commissioner on the ground that he was acting merely as an agent of the state
government.

Non Application of Mind:- When a discretionary power is conferred on an authority

the said authority must exercise that power after applying its mind to the facts and
circumstances of the case if this condition is not satisfied then there is a clear non
application of mind on the part of the authority.

Power coupled with duty:- A number of statutes confer power on the administrative
authority to exercise these power in order to fulfill a duty. The officer exercising these
powers in orders to benefit the person to whom the rule is made . A power coupled
with duty means that a duty is cost on the person to whom the power is given to
exercise it in order to give a right to the person.

Excess or Abuse of Discretion:- An administrative authority has to exercise the

discretion according to law. However when the discretion is exercised for an improper
or unreasonable cause it is a case of abuse of discretion. Excess or abuse of discretion
may be inferred from the following circumstances.

Exceeding Jurisdiction:- When an administrative authority exercises his power

beyond the limits prescribed by the statute it would result as an ultra virus act.

Irrelevant Consideration:- A power conferred on an administrative authority by a

statute must be exercised on the considerations relevant to the purpose for which it is
conferred. Instead if the authority was the power on irrelevant grounds the action will
be bad in law.

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Leaving out relevant consideration:- An administrative authority cannot take into
account irrelevant consideration and at the same time he cannot leave out relevant
consideration. Whether a relevant consideration has been left out if there is a detailed
reasoning in the order. What is a relevant consideration is generally laid out in the
statute itself.

Mixed Consideration:- A case can arise when a decision has been reached partly on
relevant and existent consideration and partly on irrelevant and non-existent
consideration. In such cases the action could be held as invalid on the ground of mixed
Consideration.

Malafide Intention:- Every power must be exercised by the authority reasonably and
lawfully . In other words if the powers has not been exercised in bonafide then it is a
case of load and illegal exercise of power. Malafides can be of 2 types. 1) Malice in
fact and 2) Malice in law.

Improper purpose or Collateral purpose:-A statutory power conferred on an

authority must be exercised for one particular purpose only. However if it is exercised
to meet some other collateral purpose it would be a case of abuse of power.

Colourable exercise of power:- Where a power is exercised by a authority

austensibily for the purpose for which it was conferred but in reality for some other
purpose, it is called colourable exercise of power.

Q.No.10.Discuss Judicial control over public undertaking.

Meaning:-

A Public Corporation may be taken to mean a body created by or under a

statute and entrusted with various functions of public importance and owned or
controlled by the State. It is an artificial person being created by law having legal
entity entirely separate and distinct from the individuals who compose it with the
capacity of continuous existence and succession notwithstanding changes in its
membership.

Definition:-

There is no precise definition to the expression Corporation either in the

statutes or in the judicial decisions. Public corporation means a body established by or
under a statute and is owned or controlled by the state and which is entrusted with
various developmental, managerial, or economic functions of public importance.

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A Public Corporation may be defined as an agency created by a statute of legislature,
running a service on behalf of the government, but as an independent legal entity with
funds of its own and largely autonomous in management. It has no regular form and
no specialized function. It is employed wherever it is convenient to confer corporate
personality.

Judicial Control:-

A Public Corporation is a juristic person having legal entity to sue and be sued.
It is a body corporate with perpetual succession and common seal. Legal proceedings
may be instituted by or against a Corporation in its corporate name. Its entity is
distinct and separate from government.

Jurisdiction of Courts over a Public Corporation is the same as it is over a

private or public company, which can sue and be sued like any ordinary person.
Accordingly, a Public Corporation is liable for a breach of contract and also in tort for
the tortuous acts of its servants like any other person. It is bound by statute.

In Lakshmanaswami v.s L.I.C. of India, the Company passed a resolution donating a

sum of Rs.2 lakhs to a trust from the amount to be paid to the shareholders. Under the
Articles of Association, the Company was not authorized to make such donation. The
Supreme Court held that the resolution was ultra vires.

In Course of time, the Courts have been expanding the scope and extent of their
control over public undertakings beyond the confines of the doctrine of ultra vires.
The courts have been conscious of the fact that a Welfare State acts through
statutory Corporations and Companies. Thus, corporation has become a third arm of
the government. The functions, which they perform, are otherwise to be performed by
the government. Being a creation of State, a public corporation must be subject to the
same constitutional limitations as the State itself. Moreover, statutory Corporations
and Government Companies are held to be other authorities and as such, State within
the meaning of Article 12 of the Constitution. There is no reason why these
Corporations should not be subject to the same judicial control as the government
itself. However, statutory Corporations are subject to the Writ jurisdiction of the
Supreme Court and High Courts (R.D.Sheety vs. International Airport Authority, AIR
1979 SC 1628).

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 Explaining the philosophy of judicial control of public undertakings in
Fertilizer Corporation Kamgar Union Vs. Union of India (AIR 1981 SC 344) Krishna
Iyer, J. observed that Public Sector has assumed great significance in India. Public
enterprises are owned by the people and those who run them are accountable to the
people. Public enterprises are autonomous and this autonomy is vital to effective
business management. But judicial control of public power is essential to ensure that it
does not behave in an irresponsible manner. In the words of Justice Iyer: The active
co-existence of Public Sector autonomy so vital to effective business managements,
and judicial control of public power tending to berserk, is one of the creative claims
upon functional jurisprudence. Public Sector occupies the commanding heights of
national economy. Accordingly, this sector cannot assert a right to be free from
judicial review.

In Rajasthan State Electricity Board vs. Mohanlal (AIR 1967 SC 1857) the
question arose whether the Electricity Board was an authority and hence state within
the meaning of Art.12. The Supreme Court held the Board to be state. The reason
given by the Court to treat the Board as state were (i) it was created by a statute and
(ii) it was carrying on governmental or quasi-governmental functions. Applying the
same tests in Sukhdev Singh vs. Bhagtram (AIR 1974 SC 1331) the Supreme Court
held that the Oil and Natural Gas Commission, the Life Insurance Corporation and the
Industrial Finance Corporation as a state within the meaning of Art.12.

In Rowjee vs. State of A.P (AIR 1964 SC 1962) the Supreme Court struck down
a scheme prepared by the A.P.S.R.T.C. to nationalize certain road transport routes.
There was evidence that the scheme was prepared at the instance of the Transport
Minister who had political rivalry with private bus operators whose routes were
proposed to be nationalized. The Court viewed the action mala fide and on the ground
it struck down the scheme.

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