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AL - AMEEN COLLEGE OF LAW

HOSUR ROAD, BANGALORE-560027

MODEL ANSWER PAPER

JUNE 2016

6TH SEM 5YRS.LLB.

SUBLECT - ADMINISTRATIVE LAW

PREPARED BY:

JAYANTH.S [ ASST.PROF]

AL- AMEEN COLLEGE OF LAW

BANGALORE.
AL -AMEEN COLLEGE OF LAW

BANGALORE

MODEL ANSWER PAPER JUNE 2016

6TH SEM 5YRS LLB

SUBJECT :ADMINISTRATIVE LAW

Duration: 3 Hours Max Marks:100

Instructions to Candidates:

1. Answer Q.No 9 and any five of the remaining questions .

2. Q.No 9 carries 20 marks and the remaining questions carry 16 marks


each .

3. Answers should be written in either in English or Kannada.

Marks:04X16=64

Q 1. The study of administrative law is not an end in itself it is just a


means to an end. Elucidate. How does it differ from Constitutional
law.

Introduction

1.The main object of the Government in any country is to establish peace and to
ensure social security. The state , through the instrumentality of law regulates the
conduct of man. Law may be classified into two heads 1) Private law 2) Public law
.

2.Administrative law is one of the most important and significant branches of the
public law. It determines the organization, powers, and duties of administrative
authorities, known as Executives or Government Officials. Administrative law is
law relating to Public administration.

3.Earlier it was regarded as the part and parcel of constitutional law . It witnessed
rapid growth and development in the 20 th century, with the expansion of
Governmental machinery and increase in the disputes between the Government
and the individuals, most of the cases of the Supreme court involve judicial review
of the administrative action. Therefore rapid growth and development of this
branch of law occurred in the 20th century.

Definition of Administrative Law

In view of its tremendous growth and development , it is very difficult to define


administrate law , but many attempts are made by jurists, some of them are as
follows:

Ivor Jennings: Administrative law is the law that determines the organization ,
powers, and duties of administrative authorities.

A. V. Dicey : Administrative law is that portion of the nation’s legal system


which determines the legal status and liabilities of all State officials , which defines
the rights , and liabilities of individuals in their dealings with public officials and
which specifies the procedure by which their rights and liabilities are enforced.

Nature and scope and Development of Administrative Law

1. The main object of Administrative Law is to control and regulate the


administrative authorities so that their discretionary powers may not be turned into
arbitrary powers.

2. The main reason for the rapid growth and development of administrative law
is the radical change of Government’s philosophy from Laissez faire to welfare
state. This change resulted in the expansion of governments functions. The
expressions Laissez Faire means individualism, self help, minimum government
control maximum free enterprise.

3. Social welfare state means a state which aims to promote socio economic
welfare of the people .This idea of establishing a welfare state imposed an
obligation on the Government to take care of its citizens and actuated the growth
and development of administrative law .

Reasons for the growth of Administrative Law

Followings are the reasons for the growth and development of Administrative Law
in a fast pace;

1. Present Judicial system is inadequate and expensive. Further , there is


inordinate delay in the disposal of cases. For eg, burning problems like disputes
between Employer and Employees, Strikes , Lockouts etc cannot be solved
amicably through the courts of law . Labor courts and Industrial disputes tribunals
possess technical knowledge and experience in the respective fields , so that they
will be able to handle such complex problems amicably and effectively . Therefore
most of the decisions of the Supreme court involve judicial review of
Administrative actions.

2. Owing to the lack of Legislation in India , it became inevitable to delegate


some powers to the Administrative authorities.

3. The Legislation is rigid in character whereas the administration is flexible in


character.

4. The Administrative Tribunals are not governed by the rules of evidence ,


procedure etc (as in the case of courts of law) and hence , they can take into
consideration ,practical view and decide the cases.

5. Unlike the courts of law, Administrative authorities can take up preventive


measures without waiting for parties to appear before them with disputes Eg.
Licensing, Rate fixing etc

6. Administrative Authorities can take effective steps on persons violating the


rules of law by suspension, revocation, and cancellation of licenses.
Distinction between Constitutional Law and Administrative Law

According to Keith, it is logically impossible to distinguish between constitutional


law and administrative law . Till recently Administrative Law was regarded as the
part and parcel of constitutional law. Many concepts of Administrative law at
present were included in Constitutional law .both subjects deal with Public
administration.

Constitutional law is the body of rules, which determine the constitution of the
state. In simple words it is the law of the land. Prof A.C Diecy defines it as
Constitutional law includes all the rules which directly or indirectly affect the
distribution or the exercise of the Government power in state.

However there is a distinction between the two, as enumerated here under;

1. Constitutional deals with structure and rules that regulate the functions ,
while Administrative law deals with a detailed study of such functions.

2. Constitutional law deals with the organization and functions of the


Government , while Administrative law would put the organization and functions
in operation .

3. Indian constitution lays down the general principles of the three organs of
the government viz. Executive, Legislature, Judiciary and their functions inter se
towards the citizens, while Administrative Law is concerned with that part of
Constitutional Law, which deals with the powers and functions of the
administrative authorities.

4. Constitutional law deals with Constitutional status of the ministers and civil
servants , while administrative law deals with the organization and working of
various departments of the Government.

Position of Administrative Law in India


In India Administrative Law can be traced to well organized administration under
the Mauryas and the Guptas. However during the period of the East India company
, it was modernized in the 20th century it has developed into a separate branch of
public law distinct from the Constitutional Law .

In India , the activities and powers of the Government have been expanded and
increased and hence there is a greater need for the enforcement of rule of law and
judicial review . For this purpose several provisions are made in the statutes
providing for right of the Constitution provide for extraordinary remedies.

Conclusion

Administrative law was earlier part of Constitutional law , but due to the increase
in Governmental functions and increase of administrative authorities ,
administrative law was considered a separate study for the purposes of controlling
mal -administration and injustice . But administrative law has its beginnings in the
20th century and still it is in its development stage , it needs to codified and
development further more that is why it is said that it is not an end in itself but only
a means to an end.

Q.2 Strict compliance of the doctrine of separation of powers is not


only a theoretical absurdity, but also a practical impossibility –
Elucidate.
Introduction

1. The theory of separation of powers has engaged in different forms. It was


originated by Aristotle and it was developed by Locke. In the 16th and 17th centuries
philosophers John Bodin etc had expressed their views on this theory .

2. But the doctrine of separation of powers was propounded for the first time
by the french jurist Montesquieu . He formulates this theory in his book the spirit
of laws published in 1748.

3. According to Montesquieu , there are three main organs of the government


in the State namely :

a) The legislature b) The Executive c) The Judiciary .So these three powers and
functions of the government in a democratic setting must be kept separate , so that
there is concentration of power in the hands of one organ of the government
because absolute power corrupts absolutely.

Definition and explanation

It is very difficult to define exactly to define what separation of powers means but
many have attempted ti define it .

Wade and Philips : According to him , this theory means ‘the same set of persons
should not compose more than one organ of Government.’

So this definition shows that one organ of the government should not exercise the
functions of the other organs . In other words :
1. The legislature cannot exercise the powers of the Executive or Judiciary ;

2. The Executive should not exercise the powers twelfth Legislature or


Judiciary ;

3. The Judiciary cannot exercise the powers of the Legislature or Executive.

Object and Effect of the doctrine

1. The main object of this theory of separation of powers is to distribute the


powers between different organs , and to avoid or minimize arbitrariness in the
government functions.

2. The doctrine of separation of powers had a very good impact on the


development of administrative law and in the functioning of the governments. It is
well appreciated and accepted by the jurists and politicians in England and
America.

Position in America (USA)

1. The doctrine of separation of power has been accepted and adopted by the
constitution of USA . In America , the legislative powers are vested in the congress
( Article 1) , the executive powers in the president ( Article 2) and the judicial
powers in the Supreme court and its subordinate courts ( Article 3).

2 .In America there is a system of checks and balances to see that one should not
encroach upon the other organs . However , in view of the development of
administrative law and expansion of administrative machinery , strict compliance
of the doctrine is not possible. Therefore the doctrine of separation of powers has
been relaxed in certain cases.

3. For instance, the president being the Executive head encroaches upon the
Legislative power , while giving assent to bills.
Similarly the congress being the Legislative organ , controls the executive by the
power of impeachment of the president .

The congress controls the Judiciary in appointment and impeachment of the


Judges. Likewise , the Judiciary by exercise the power of Judicial review controls
the legislature.

Position in UK

The theory of separation of powers is not followed strictly in England . In UK


there is complete confusion of the Legislative and Executive powers .

The legislation of great Britain enjoys judicial powers as well . The house of
Lords , the upper house of the Legislature is the highest court of appeal in Great
Britannia . The cabinet through the King can dissolve the House of commons.
Cabinet through the king introduces the bill in the Parliament , certain bills can
only be introduced by cabinet through the King . It is the cabinet , which
formulates ordinances through the King . However these three powers are vested in
different organs. But, one organ controls the powers of the others. E.g: the house of
lords being a legislative body exercises Judicial functions also .

Position in India

1. There is no provision in the Indian constitution to adopt this doctrine .


Article 50 of the Indian Constitution speaks about the Separation of power .

2. In India the Legislative powers are vested in the Parliament , Executive


powers are vested in the {resident and the Judicial powers in the Supreme court,
High court and the subordinate courts. The provisions of the Constitution reveal
that there are many deviations from the application of this doctrine since one organ
encroach upon the other .

3. Parliament exercises judicial powers by punishing a person for the breach of


privilege. It also controls the Judiciary by exercising the power of impeachment of
Judges. Similarly , the Judiciary by reviewing legislations controls the Parliament .
As such the Executive is vested with law making (delegated legislation ) and
Judicial functions and controls the appointment of Judges.

4. So if we study the constitutional provisions carefully , it is clear that the


doctrine of Separation of powers has not been accepted in India in its strict sense
and there is functional overlapping. The question of constitutional recognition of
the doctrine of separation of powers was at length considered by the Supreme court
in Indira Nehru Gandhi v Raj narain 1975 .

5. in the above case Ray CJ has observed that our constitution recognizes
division between three main powers of the government. Judicial power in the sense
judicial power is vested in the Judiciary and similarly the executive and legislative
powers are vested in their respective spheres. However it is not the intention that
the powers of the powers of judiciary should be passed on to or shared by the
Executive or the Legislature or that the powers of the Legislature or the Executive
should pass to or shared by the Judiciary.

6. In the same case Beg J observed that Separation of powers is a feature of the
basic structure of the Constitution of India. This constitutional scheme cannot be
changed even by resorting to amending process under Article 368 of the
Constitution.

Conclusion

The doctrine of separation of powers is a doctrine which aims at separation of


powers so that absolute power in just one organ of the government will lead to total
anarchy , so it acts a check on concentration of power.

According to Friedman strict complaisance of the doctrine is not only a theoretical


absurdity but also a practicable impossibly . A modern welfare state like India has
to deal with a lot of social- economic problems. It is not possible to stick on to the
Rule of Separation of powers.
Thus in the words of Dr.AL Nath the three organs of the Government viz the
legislature , Executive, Judiciary are not independently independent but
interdependently independent.

Q.3 WHAT IS DELEGATED LEGISLATION? WHAT ARE THE


CONSTITUTIONAL LIMITATIONS ON THE DELEGATION OF
LEGISLATIVE POWER IN INDIA?

Introduction:

There is rapid growth of administrative legislation. The function of the executive is


to administer the law enacted by the legislature, and in the ideal state, the
legislative power must be exercised exclusively by the legislators who are directly
responsible to the electorate. As a matter of fact, apart from pure administrative
functions, the executive performs many legislative and judicial functions also.
Therefore, it is said that delegated legislation is multitudinous that a statute book
would not only be incomplete but misleading unless it be read along with delegated
legislation which amplifies and supplements the law of the land.

Definition:

the term delegated legislation is difficult to define. it is equally difficult to state


with certainty the scope of such delegated legislation

Mukhejee rightly says:

“Delegated legislation is an expression which covers a multitude of confusion. It is


an excuse for the legislators, a shield for the administrators and a provocation to
the constitutional jurists...”
A simple meaning of the expression delegated legislation is a sunder:

“When the function of legislation is entrusted to organs other than the legislature
by the legislature itself, the legislation made by such organs is called delegated
legislation”.

Constitutional limitations on the delegation of legislative power:

Even though there is no specific bar in the Constitution of India against the
delegation of legislative power by the legislature to the executive, it is now well
settled that essential legislative functions cannot be delegated by the legislature to
the executive. Some of the functions which cannot be delegated are also called as
impermissible delegation. Some of them are as follows:

1. Essential legislative functions: Legislative policy must be laid down by the


legislature itself and by entrusting this power to the executive; the legislature
cannot create a parallel legislature.
2. Repeal of law: Power to repeal a law is essentially a legislative function,
and therefore, delegation of power to the executive to repeal a law is
excessive delegation and is ultra vires.
3. Modification: power to modify the act in its important aspects is an
essential legislative function and, therefore, delegation of power to modify
an Act without any limitation is not permissible. However, if the changes are
not essential in character, the delegation is permissible.
4. Exemption: The aforesaid principle applies in case of exemption also, and
the legislation cannot delegate the power of exemption to the executive
without laying down the norms and policy for the guidance of the latter.
5. Removal of difficulties: Under the guise of enabling the executive to
remove difficulties, the legislature cannot enact a Henry VIII Clause and
thereby delegate essential legislative functions to the executive, which could
not otherwise have been delegated.
6. Retrospective operation: The legislature has plenary power of law making
and in India, parliament can pass any law prospectively or retrospectively
subject to the provisions of the Constitution. But this principle cannot be
applied in the case of delegated legislation. Giving an Act retrospective
effect is essentially a legislative function and it cannot be delegated.
7. Future Acts: The legislature can empower the executive to adopt and apply
the laws existing in other States, but it cannot delegate the power by which
the executive can adopt the laws which may be passed in future, as this is
essentially a legislative function.
8. Imposition of tax: the legislature cannot empower the executive by which
the jurisdiction of courts may be ousted. This is a pure legislative function.
9. Offences and penalty: the making of a particular act into an offence and
prescribing punishment for it is an essential legislative function and cannot
be delegated by the legislature to the executive. However, if the legislature
lays down the standards or principles to be followed by the executive is
defining an offence and provides the limits of penalties, such delegation is
permissible.
10.Essential legislative functions: Legislative policy must be laid down by the
legislature itself and by entrusting this power to the executive; the legislature
cannot create a parallel legislature.
11.Repeal of law: Power to repeal a law is essentially a legislative function,
and therefore, delegation of power to the executive to repeal a law is
excessive delegation and is ultra vires.
12.Modification: power to modify the act in its important aspects is an
essential legislative function and, therefore, delegation of power to modify
an Act without any limitation is not permissible. However, if the changes are
not essential in character, the delegation is permissible.
13.Exemption: The aforesaid principle applies in case of exemption also, and
the legislation cannot delegate the power of exemption to the executive
without laying down the norms and policy for the guidance of the latter.
14.Removal of difficulties: Under the guise of enabling the executive to
remove difficulties, the legislature cannot enact a Henry VIII Clause and
thereby delegate essential legislative functions to the executive, which could
not otherwise have been delegated.
15.Retrospective operation: The legislature has plenary power of law making
and in India, parliament can pass any law prospectively or retrospectively
subject to the provisions of the Constitution. But this principle cannot be
applied in the case of delegated legislation. Giving an Act retrospective
effect is essentially a legislative function and it cannot be delegated.
16.Future Acts: The legislature can empower the executive to adopt and apply
the laws existing in other States, but it cannot delegate the power by which
the executive can adopt the laws which may be passed in future, as this is
essentially a legislative function.
17.Imposition of tax: the legislature cannot empower the executive by which
the jurisdiction of courts may be ousted. This is a pure legislative function.
18.Offences and penalty: the making of a particular act into an offence and
prescribing punishment for it is an essential legislative function and cannot
be delegated by the legislature to the executive. However, if the legislature
lays down the standards or principles to be followed by the executive is
defining an offence and provides the limits of penalties, such delegation is
permissible.

Due to the complexities and exigencies of intensive form of government, the


institution of delegated legislation has come to stay. In almost all the countries the
technique of delegated legislation used at a large scale and some legislative powers
are delegated by the legislature to the executive. Delegation of legislative powers
to the executive has to be conceded within the permissible limits. However, there is
inherent danger of abuse of the legislative power by the executive authorities. The
need, therefore, is that of controlling the delegate in exercising his legislative
powers. Therefore, today the question is not whether delegated legislation is
desirable or not, but it is what controls and safeguards can be introduced so that the
power conferred is not misused or misapplied.

The controls which are exercised over delegated legislation may be divided
into three categories:

1. Judicial control
2. Legislative control
3. Procedural control
1. Judicial control or Doctrine of ultra vires:
2. In the control mechanism, judicial control has emerged as the most
outstanding controlling measure. Judicial control over delegated
legislation is exercised by applying two tests:
(a) Substantive ultra vires and
(b) Procedural ultra vires.

Ultra vires means beyond power or authority or lack of power. An act may
be said to be ultra vires when it has been done by a person or a body of
persons which is beyond his, its or their power, authority or jurisdiction.
When an act of Legislature enacts in an excess of power, conferred on the
Legislature by the Constitution, the legislation is said to be ultra vires the
Constitution. On the same principle, when a sub ordinate legislation goes
beyond what the delegate is authorised to enact he acts ultra vires. This is
known as substantive ultra vires.

Substantive ultra vires means that the delegated legislation goes beyond
the scope of the authority conferred on it by parent statute or by the
constitution. It is a fundamental principle of law that a public authority
cannot act outside the powers i.e, ultra vires.

Procedural ultra vires: when a subordinate legislation fails to comply with


procedural requirements prescribed by the parent Act or by a general law, it
is known as procedural ultra vires. For eg: publication and consultation.

Power delegated by statue is limited by its terms and subordinate to the


objects. The delegate must act in good faith, reasonably, intra vires the
power granted and on relevant considerations. All his decisions, whether
characterised as legislative, administrative or quasi judicial, must be in
harmony with Constitution, parent Act and other laws of the land. They must
be reasonably related to the purposes of the enabling legislation. Judicial
control over delegated legislation is exercised by applying the doctrine of
ultra vires in a number of circumstances.

1. Where parent act is ultra vires the Constitution.


2. Where parent Act delegated essential legislative functions
3. Where delegated legislation is inconsistent with parent Act
4. Where delegated legislation is inconsistent with general law.
5. Where delegated legislation is unconstitutional
6. Unreasonableness
7. Mala fide Bad faith
8. Sub delegation
9. Exclusion of judicial review
10.Retrospective effect.

Sometimes a parent Act or delegating statute may be Constitutional and


valid and delegated legislation may be inconsistent with the parent Act, yet
the delegated legislation may be held invalid on the ground that it
contravenes the provisions of the Constitution. It may seem paradoxical that
a delegated legislation can be struck down on this ground because if the
parent Act is constitutional and delegated legislation be ultra vires the
Constitution? It was this argument which the Supreme Court was called
down to consider in Narendra Kumar Vs. Union of India. In this case the
valididity of the Non-Ferroous Metal Control Order 1958 issued under
Section 3 o0f the Essential Commodities Act 1955 was challenged as
unconstitutional. The petitioners had not challenged the validity of the parent
Act. It was argued that if the enabling Act was not considered
unconstitutional, the rules made there under could be held to be
unconstitutional. Rejecting this extravagant argument, the Supreme court
held that even though a parent Act might not be unconstitutional, an order
there under can still be unconstitutional and can be challenged as violative of
the provisions of the Constitution.

In Dwarka Prasad Vs. State of U.P. the U.P. Coal Control Order, 1953 was
issued under the Essential Supplies. Even though the parent Act was
constitutional Clause 3(2)(b) of the order was held Ultra vires by the
Supreme court being violative of Article 19(1) not (i)(g) of the Constitution
of India.

In Air India Vs. Nergesh Meerza, a regulation framed by Air India provide
that services of an Air Hostess could be terminated if she because pregnant
was held arbitrary, unreasonable and violative of Articles 14 and 15 of the
Constitution.

Conclusion:

It is however, well settled that while considering constitutional validity or


vires of delegated legislation, one should start with the presumption of
constitutionality of the provision and it will be for the party challenging the
validity of subordinate legislation to satisfy the court that it is
unconstitutional. Moreover, if two constructions are possible, one which
leave constitutionality of law should be preferred than the other which would
make it ultra vires.
Q.4. EXAMINE THE SCOPE OF WRIT OF MANDAMUS FOR
JUDICIAL REVIEW OF ADMINISTRATIVE ACTION.

Introduction:

Due to increase in governmental functions, administrative authorities exercise vast


powers in almost all the fields if these powers are abused then the subjects will be
left without proper and effective control an individual would be without remedy
even though injustice is done to him. The Indian legal systems follow the maxim
ubi jus ibi remedium. In fact right and remedy are two sides of the same coin and
they cannot be dissociated from each other.

The remedies available to an individual aggrieved by any action of an


administrative authority may be classified as follows:

1. Prerogative remedies

2. Constitutional remedies

3. Statutory remedies

4. Equitable remedies

5. Common law remedies

6. Parliamentary remedies

7. Cousel d’ etat

8. Ombudsman and

9. Self help.

The expression prerogative writ is not scientifically defined. However, it is a


formal order in writing issued in the name of the sovereign, court or an
authority commanding the person to whom it is issued to do or refrain from
doing some act specified therein. The high prerogative writs played a very
important role in upholding the rights and liberties of subjects and providing
effective safeguard against arbitrary exercise of power by public authorities.

In India, the founding fathers were aware of the part played by the prerogative
writs in England, therefore they made specific provisions in the Constitution
itself empowering the Supreme Court and High courts to issue writs.

In India, the courts exercise various kinds of writs for the enforcement of
Fundamental Rights they are as follows:

1.Habeas Corpus writ.

2.Writ of Mandamus

3. Writ of prohibition

4. Writ of quo Warranto

5. Writ of Certiorari

Mandamus and judicial review of administrative action:

1. A writ of mandamus is a royal command issued in the name of the Crown


from the court of King’s Bench to the subordinate court or inferior tribunal, a
corporation, a board or any other person requiring it or him to perform a public
duty imposed by the Constitution, a statue or by common law.

2. The expression Mandamus is a latin term which means “we command” .


Mandamus is a Judicial order issued in form of a command to any
Constitutional , Statutory or Non Statutory authority asking to carry out a public
duty imposed by law or to refrain from doing a particular act , which the
authority is not entitled to do under the law . It is an important writ to check
arbitrariness of an administrative action . It gives positive as well as negative
remedy . It is popularly known as the Writ of Justice.
Locus Standi

The rule of Locus Standi is strictly followed except in public interest litigation. The
petitioner has to prove that he has a right to enforce public duty in his favor.

Authorities to which the writ may be issued

The Writ of Mandamus may be issued against Government, semi -Government and
all Public authorities (Judiciary, Tribunals, Universities, Colleges) IN short , it is
available against all administrative authorities.

Object:

 The primary object of mandamus is to correct defect of justice.


 It seeks to protect right of a citizen by requiring enforcement and
fulfilment of imperative duty created by law.
 It promotes justice.
 The courts can correct all errors which tend to the oppression of the
subject and grant him appropriate relief.

Conditions:

 The petitioner must have legal right. A person is said to be aggrieved


only if he is denied a legal right.
 The second requirement for a writ of mandamus is that the opposite
party must have legal duty. A legal duty must have been imposed on
the authority and the performance of that duty should be imperative,
not discretionary or optional.
 The petition for a writ of mandamus must be preceded by a demand of
justice and its refusal.
 An application for mandamus must have been made in good faith and
not for any ulterior motive or oblique purpose.
 Mandamus may be refused if alternative remedy is available to the
applicant.
In Gujarat state Financial corporation vs Lotus Hotels P Ltd. 1983 , the corporation
entered into an agreement with Lotus Hotels to provide finance for construction of
a hotel, and did not release the funds. The Gujarat High court issued the Writ of
Mandamus to release the funds as agreed.

Manjula Majari vs Director of Public Instructions 1952, in this case the petitioner
applied for the writ of Mandamus since the respondent , Director of Public
Instructions did not include his book in the list of prescribed books. The orissa
High court refused the petition on the ground that the respondent had a
discretionary power to select good books.

Conclusion

A person whose right is infringed by an arbitrary administrative action can


approach the court for relief/remedy. Administrative law provides for various kinds
of remedies and reliefs to the aggrieved against an illegal administrative action ,
one of such remedies is the Writ of Mandamus which can be issued when the
concerned administrative authority fails to perform a public duty .

Q.NO.5 “AUDI ALTERM PARTEM IS SINE QUA NON OF FAIR


HEARING”. DISCUSS WITH THE HELP OF DECIDED CASES

Introduction:

Natural justice is an important concept in administrative law. Natural justice is


envisaged in administrative law for ensuring fair exercise of power by
administrative agencies. Fair exercise of the power of administration is possible
when the power is used according to fair procedure. The universal rule of fair
procedure is audi alteram partem-Hear the other party. Thus, hearing means natural
justice or fairness . the principles of natural justice or fundamental rules of
procedure for administrative action are neither fixed nor prescribed in any code.
They are better known than described and easier proclaimed than defined.

Meaning of Natural Justice:

It is not possible to define precisely and scientifically the expression natural


justice. Yet the principles of natural justice are accepted and enforced. In Ridge Vs.
Baldwin case Lord Reid in his historic decision observed: “in modern times
opinions have sometimes been expressed to the effect that natural justice is so
vague as to be practically meaningless. But I would regard these as tainted by the
perennial fallacy that because something cannot be cut and dried or nicely weighed
or measure therefore it does not exist”.

Audi Alteram Partem or the rule of fair hearing ( Hear the other side)

The audi alteram partem rule means that no should be condemned unheard.
This the second fundamental principle of natural justice and hence a basic
requirement of rule of law. According to de Smith” A party is not to suffer in
person or in purse without an opportunity of being heard”. It is the first principle of
civilized jurisprudence and is accepted by the laws of Men and God. In short the
principle is that before an order is passed against any person reasonable
opportunity of being heard must be afforded to him.

This rule insists that the affected person must be given an opportunity to produce
evidence in support of his case. He should be disclosed the evidence to be utilized
against him and should be given an opportunity to rebut the evidence produced by
the other party.

Generally, the maxim includes two ingredients (i) notice and (ii) hearing.

(i) Notice:
A basic principle of natural justice is that before any action is taken, the
affected person must be given notice to show cause against the proposed action
and seek his explanation. It is a sine qua non of fair hearing. Any order passed
without giving notice is against the principles of natural justice and is void ab
intio. It is not enough that notice in a given case be given. It must be adequate
also. The question of adequacy of notice depends upon the facts and
circumstances of each case. However, a notice in order to be adequate must
contain the following;
1. Time, place and nature of hearing.

2. Legal authority and jurisdiction under which hearing is to be held.

3. Matter of fact and Law as regards changes.

In Punjab National Bank v. All India Bank Employees Federation Air


1960 , in this case , notice did not contain the charges against which fine
was imposed . The supreme court held the notice defective and quashed
the fine.

Similarly in R.V University of Cambridge 1723, in this case the


University authorities without giving notice cancelled the degree of Dr.
Bentley on the ground of misconduct. The University action was held
violative of the principles of natural justice.

The object of giving notice is to provide an opportunity to the person so


that he can equip himself to defend his case. Any order passed without
giving a notice is against the principles of natural justice.

In Board of High school vs Kumari Chitra 1970 , the petitioner appeared


for examination . But the board , without giving notice canceled the
examination on the ground of shortage of attendance. The petitioner was
not given an opportunity of being heard. The board contended that giving
show notice would not serve the purpose since the evidence ( shortage of
attendance) is borne on the record. The Supreme court rejected the
contention of the Board and held the action as violative of the principles
of natural justice . The principles of natural justice must be observed
irrespective of the reason , whether the purpose would be served or not.
b. Reasonable opportunity: More over. The notice must give a
reasonable opportunity to comply with the requirements mentioned in it.
In state of Madhya Pradesh and others Vs. Makers Development
Service Pvt Ltd. The High Court declared the entire Act invalid without
issuing notice or calling upon the State Government to file its counter.
The Supreme Court held that the order of the high court is liable to be set
aside.

ii) Hearing:

The second requirement of the audi alteram partem maxim is that the
party concerned must be given an opportunity of being heard before any
adverse action is taken against him.

Ingredients of fair Hearing;


A hearing will be treated as fair hearing if the following conditions are
satisfied:
1. Adjudicatory authority receives all the relevant material produced by
the individual.
2. The Adjudicatory authority discloses the individual concerned
evidence or material, which it wishes to use against him.
3. The Adjudicatory authority must disclose allthe material placed before
it and must give reasonable oppurtunity to the affected interest to submit
their case.

In the leading case of Copper Vs. Wandsworth Board of Works. The


Board had power to demolish any building without giving an opportunity
of hearing if it was erected without prior permission. The Board issued an
order under which the house of the plaintiff was demolished. The action
was brought against the Board because it had used that power without
giving the owner an opportunity of being heard. Although the action of
the Board was not in violation of the statutory provision, the court held
that Board’s power was subject to the qualification that no man can be
deprived of his property without having an opportunity of being heard.
In Maneka Gandhi Vs. Union of India the passport of the petitioner was
impounded by the Government of India in public interest. No opportunity
was afforded to the petitioner before taking the impugned action. The
Supreme Court held that the order was violative of the principles of
natural justice.
In Olga Tellis Vs. Bombay municipal Corporation under the statue the
Commissioner was empowered for removal of construction without
notice. However, the Court held that it was merely an enabling provision
and not a command not to issue notice before demolition of structure.
The discretion was, therefore, required to be exercised according to the
principles of natural justice. In the same way when admissions were
given to certain students, but the candidates who were so admitted were
not impelled aspirants. The court ruled that their admissions were not to
be canceled behind their back.

Conclusion:

Natural Justice is an expression of English common law , and involves a


procedural requirement of fairness . The principles of natural justice have a great
significance in administrative law . The principles of natural justice are not
embodied rules and are not codified , they are Judge-made rules and are regarded
as counterpart of procedural due process. Among st the principles of natural justice
Audi Alteram Partem is very important and denying this right is itself a prejudice .

Q.6. Examine the contractual liability of the State with the help of
leading cases.

Introduction

A modern welfare State is shouldered with the responsibility of implementing


various schemes for the welfare of its citizens . In this connection , the
State/Government enters into variety of contracts with the individual and other
agencies . In such situations , state as a party to the contract , is subject to the same
contractual obligations, rights and liabilities. However , the State in
implementation of the welfare measures , deserves certain privileges and
immunities.

Government Contract

A contract entered into by the Government must fulfil the essentials of a valid
contract under section sec 10 of the Indian contract Act 1872, and also the
conditions enshrined under Art 299 (1) of the Indian Constitution . There fore a
Government contract to be valid the following conditions are to be satisfied ;

1. Essentials of a valid contract under Sec 10 of the Indian Constitution

2. The provisions under Art 299(1) of the Indian constitution .

Article 298 of the Indian Constitution empowers the Union of India and States to
carry on any trade or business by entering into contracts through its executive
power.

Historical background :

In England the crown enjoyed immunity from liability on the ground of a well
known maxim the king can do no wrong . However such immunity was never
enjoyed by the Crown in respect of Contractual Liability .

In Bank of Bengal vs. The United Company 1831- The Government( The East
India Company) was held liable for the contractual liability. But the Government
was held not liable for contractual liability on the ground of Sovereign power in
Nobin Chunder vs Secretary of State 1875- In England ,the Crown proceedings
Act 1947, abolished sovereign immunity and held the Government liable like an
employer or an ordinary individual .In India , according to Sec 79 of the Civil
Procedure Code, 1883, the Government is liable in a contract like a private
individual.

Constitutional Provisions:

Article 298 of the Constitution empowers the Government ( Union of India and the
States) to carry on any trade or business by entering into contracts through its
executive power.
Article 299(1) lays down the procedure for entering into contract with the
Government . Accordingly , the contract with the Government to be valid , the
following conditions are to be satisfied:

1. The contract must be expressed to be made by the President or the Governor


as the case may be .

2. Such contract must be executed by the person authorized by the President or


Governor as the case may be.

3. The contract must be executed on behalf of the President or the Governor as


the case may be.

Earlier , the above rules were strictly followed to safeguard the interests of the
Government. In course of time , strict adherence to the above conditions became
impracticable. In the interests of the parties contracted with the Government ,
courts liberalized the strict compliance of the above rules. However , the
Government contract must be writing and the oral contract is not enforceable.

The Government contract to be valid , no formal agreement is essential.


Relevant case law on this point is:

Union of India vs. A.L Rullia Ram AIR1963 - The defendant Government servant ,
the Chief Director of Purchase issued tenders for purchase of certain quantity of
cigarettes and the plaintiff’s tender was accepted and signed by the Chief Director .
But no formal agreement was entered into for the purchase. The plaintiff sued the
Government for specific performance of the contract . The defendant
(government ) contended that the contract was not enforceable since there is no
formal agreement. The Supreme Court denied this contention and held in favor of
the plaintiff that the contract was enforceable.

1. The contract must be in the name of the President or Governor.

The government contract to be valid must be in the name of the Governor in case a
contract by State and the President in case a contract by the Union of India.

2. Person Authorized:
The Government contract to be valid , it must have been entered into by the person
so authorized by the President or Governor as the case may be . Such authority
may be expressed or implied. A contract under an implied authority is valid and
enforceable as in the case of :

Bhikraj Jaipuria vs. Union of India 1962 - A contract for the supply of large
quantities of food grains was entered into between the Plaintiff and the defendant
Government’s servant, the divisional superintendent , Eastern Railways. But, there
was no express authority to the Division superintendent to enter into such contract.
The plaintiff supplied the food grains and the same was distributed to the
employees, and part of the amount also was paid . In an action for payment of the
balance, the defendant Government was held liable , on the ground that the
Divisional Superintendent had an implied authority to enter into the contract.

3. On behalf of the President or the Governor :

Government contract to be valid , it must have been entered into by the person so
authorized on behalf of the President or Governor as the case may be and it must
be made in the name of the President or Governor as the case may be . Otherwise ,
it is not valid.

Karmashi vs Bombay 1964 - IN this case an agreement for the supply of canal
water for irrigation purposes was entered into between the plaintiff and the
P.W.D.Minister , through some letters. But , there was no formal agreement to that
effect i.e. In the name of the Governor . The supreme Court held the contract void
and not enforceable.

Conclusion

Under Article 299(1) the government can enter into a contract with a private
individual , and the government can be held liable for the breach of contract
provided all the three conditions are fulfilled properly . Any contract , violating the
three conditions is defective , and cannot be ratified by the Government. Further
more Article 299(2) protects the President and Governor from personal liability
arising out of such contracts.
Q.7. Discuss the various controls over the working of Public
Corporations in India.

Introduction

1. In the beginning of the late 19th century there has been a change of the role
of the state from police state to the Welfare state. In the Police state scenario the
state was concerned only with the maintenance of law and order , and making sure
that the people obeyed the laws made by the sovereign , it was not bothered about
the welfare of the people

2. But in the late 19th century after the end of the second world war , the role
of the state started to change from a police state to a welfare state. Welfare state
means a state which provides to its citizens a wide range of social services . It is
based on the cradle to grave policy and womb to tomb policy , where the state
actively takes part in welfare of its citizens.

3. Because the role of the state changed from that of a Police state to a welfare
state , the government involved in the trade , commerce and business for the
purpose of social welfare. Article 298 of the Indian Constitution empowers the
Union of India and states to carry on any trade or business by entering into contacts
through its executive power.

Public undertaking : Meaning and Classification


When the Government enters into trade, business or commerce for the welfare of
the people through a department or government company or a public corporation it
is known as a Public undertaking . The government may enter the field with any
means but the purpose of it is the same , that os the service of the people . The
government acts as a servant and not as a master of the people.

Public undertaking may be structurally be classified into

1. Departmental undertaking

2. Government companies ( non statutory public corporations )

3. Statutory public undertakings.

Departmental Undertakings

Departmental undertakings are those that are run directly by the department
concerned . The object of these undertakings is for developmental purposes .
Railways , post office, Telegraph, Telephone, etc are run directly by the concerned
department or ministry.

Since these undertakings perform governmental functions it comes within the


meaning of the term state under Article 12 and it is subject to the writ jurisdiction
of the Supreme court and the High courts under Article 32 and 226.

Government Companies

Government companies are non statutory undertakings registered under the


companies act 1956.

Sec 617 of the companies act defines a government company as:

For the purposes of this act a Government company means any company in which
not less than 51% of the paid up share capital is owned by the central government
or the state government or partly by the center and state and includes a subsidiary
company to a government company.
There are some similarities and differences between a governmental company and
a private company.

Similarities include: It is a body corporate with perpetual sucession and a common


seal and it has the rights to enter into contracts and has the right to be sued and sue.

Differences include : 51% of the paid up share capital is held by the government
and the purchase of the government shares can be made only after the permission
of the government , and the managers of the government company can be
appointed by the concerned Government.

Government companies are not included in the meaning of the term State , and its
employees are not government servants . In the case of Rajasthan Electricity board
vs Mohan lal 1987 , the Supreme court explained the meaning of the term ‘other
authorities, as any authority established by the constitution of India or by the
Statute and its powers are given by the force of law comes within the meaning of
the term state and whether it performs Governmental functions or not.

There has been increase in the number of Government companies in comparison to


Public undertakings because the Articles of association can easily be amended and
it can be more flexible in terms of private capital etc.

Public Undertakings

Public undertakings are Non statutory undertakings , and they perform their
functions on behalf of the government as an agency of the government. They are a
Hybrid organism having the features of a Government department and of a
business company .

In the case of Dhanoa vs Municpal Corporation Delhi 1981 , a Corporation is


defined as follows:

A corporation is an artificial being created by law having legal entity entirely


separate and distinct from its members who compose it with the capacity of
perpetual succession and common seal. In addition it can hold , posses and dispose
off property , enter into contracts, sue and be sued, and exercising such other
powers and privileges as may be conferred on it by the law of its creation just as a
natural person may.
Characteristics

A public Corporation is a ‘hybrid organism’ since it contains both the features of a


Government department and of a business company .

A public corporation whether created by or under a statute possess the following


characteristic features:

1. A statutory body : A Public Corporation is created by or under a statute . It


operates an activity on behalf of the Government in public interest. Ot discharges
functions of a government character.

2. Body corporate : A Public corporation possess an independent corporate


personality distinct from its members with a perpetual succession and a common
seal . It can sue and be sued in its corporate name.

3. Limited by the statute : A Public corporation has those rights and exercises
those functions entrusted to it by its constituent statute by which it is created . Any
action of such corporation not expressed or impliedly authorized by the statute is
ultra vires and cannot bind the corporation . Such ultra vires has no legal effect
whatsoever.

4. It can hold , possess, and dispose of property by its corporate name.

5. Autonomous body : depending on the provisions of the statute by or under


which a public corporation is created such Corporation is by and large an
autonomous body. The corporation is its own master in day to day management
and administration.

6. Rule making power : The constituent statute may delegate rule making
power to a Public Corporation . Such rules , regulations and bylaws are binding
and enforceable unless they are ultra vires the enabling Act and the Constitution of
India.

7. State : A Public Corporation created by or under a statute is a State within


the defnition of the term in Article 12 of the Constitution and therefore , is subject
to the Writ jurisdiction of the Supreme court under Article 32 and of High courts
under Article 226 of the Constitution.
8. No civil post: Employees of a Public corporation do not hold a Civil Post
under the Union or the State within the meaning of Part XIV of the Constitution of
India.

9. Not a citizen: A Public Corporation is not a citizen within the meaning of


part II of the constitution and therefore , it cannot claim the benefits of those
Fundamental Rights , which have been guaranteed only to citizens .

10. No Privilege to withhold documents: Since a Public Corporation is neither


a department nor an organ of the government , it cannot claim the privilege of the
Government to withhold documents under sec 123 of the Evidence Act.

Controls over Public Corporations

Public Corporations are established with the object of promoting economic


equality . Since the public corporations are conferred autonomy and enormous
powers , there is a possibility for misuse of powers . Therefore, it is necessary to
control the public corporation so that the powers of the Public corporations are not
misused . Such controls are discussed under the following heads :

A) Judicial Control

B) Parliamentary Control

C) Government Control and

D) Public control.
Judicial control

1. A public Corporation is a juristic person having legal entity to sue and be


sued. It is 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 its members.

2. 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 other ordinary
person. Accordingly , a Public Corporation is liable for breach of contract and also
in tort for the tortious acts of its servants like any other . It is bound by a statute.

3. Traditionally , judicial control on corporation is exercised through the


doctrine of ultra vires by declaring an act ultra vires if the corporation exceeds its
authority . In practice , however , it may be difficult to invoke the docrine of ultra
vires because in many cases powers of the corporation are so widely described that
it may not be possible for the court to declare any particular act of the corporation
to be ultra vires.

4. In Lakshmanswami vs LIC 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.

5. Statutory corporations are subject to the Writ jurisdiction of the Supreme


Court and High courts because they are established by the statute.(R.D Shetty vs
International Airport Authority, AIR 1979). In Rajasthan Electricity Board vs
Mohanlal 1967 , the question before the Supreme Court was whether the
Electricity board was an authority and hence the stste within the meaning of the
term state under Article 12. The Supreme court hekd the board to be state . The
reasons given by the court to treat the board as state were

1. It was created by the statute and

2. It was carrying on governmental or quasi -governmental functions.


Applying the same test in Sukdev /sing vs Bhagatram 1974 , the supreme Court
held the Oil and Natural Gas commission , the life insurance corporation and The
Industrial Finance Corporation as a state within the meaning of Article 12.

Parliamentary Control

1. Public Corporations are created and owned by the State. They are financed
from the funds supplied from the government that requires to exercise their powers
in public interest. It is therefore necessary for The Parliament to exercise control
over these Corporations.

2. The establishment and continuance of the public Corporation depend on the


statute, which creates it. Parliament which has passed the statute for the
Establishment of the corporation may supersede or abolish it . Parliament can
amend the statute , which has been passed by it for the establishment of the
corporation. At the time of amendment of the of the statute , Parliment gets
opportunity to discuss the affairs of the working of the corporation.

3. The another method of controlling the public corporations is the provisions


for laying the rules and regulations on the table of the house of
Parliament.However all the statutes do not contain such provisions . For example ,
the Damodar valley Corporation Act soes not provide for such laying.

4. The most effective control is exercised through the Parliamentary


committees. Based on the recommendations of Menon Committee on
Parliamentary Supervision over State undertakings that paliamnet constituted the
Committee on Public undertakings in 1964. The functions of the committee are:

a) to examine the reports and accounts of the public undertakings:

b) To examine the reports, if any of the Comptroller and Auditor General on


Public Corporations ;

c) To examine in the context of the authority and efficiency of the Public


Corporations whether their affairs are being managed in accordance with sound
business principles and prudent commercial activities.

However the recommendations of the committee are advisory and therefore not
binding on the government.
Government Control ( Ministerial control )

Since the government is the custodian of public interest , it also exercises control
and supervision over the affairs of public corporations. However government
control does not mean governmental interference in the day to day working of the
Corporation , which is highly destructive for the success of the corporation.

However there are various techniques of governmental control in the following


shapes:

1. By issuing directions to the corporations : The Government issues


directives to the public corporation on the matters of policy. For example , the Life
Insurance corporation Act 1956 provides that the Corporation shall be guided by
such directions in matters of policy involving public interest , as the Central
Government therein shall be final.

2. Appointment and removal of members: Generally , the power to appoint


and remove the Chairman and the members of a Public corporation is vested in the
Government by the constituent statue. This is one of the most effective means of
control over a public corporation.

3. Order enquires : The Government may appoint , through its executive


power , a committee or commission to review the working of a public undertaking.
By this method the misuse of powers by the corporation can be brought into light
and such misuse may be checked and suitable action may be taken by the
Government.

4. Financial control : Generally , the government is vested with the powers of


controlling the borrowing expenditure and capital formation . For example , the Oil
and Natural Gas Commission Act 1956 provides that the commission can borrow
money with the prior approval of teh Central Government.

5. Rules and Regulations: Usually the statute creating the corporation


empowers the Central Government to make rules to give effect to the provisions of
the Act. Sometimes the corporation is empowered to make regulations with the
prior approval of the Central Government. This also help the Government in
controlling the public corporation.
Public Control

The public corporations are created for the benifit of public and to promote public
interest. The Consumer Protection Act 1986 makes provisions for the
establishment of Central consumer Protection council and the State Consumer
Protection Councils to promote and protect the rights of the consumers..These
Councils are expected to be useful in controlling the public enterprises including
public corporations in the interest of the consumers. They will be helpful in
curbing the growth of corrupt practices.

Conclusion

The main objective behind government venturing into trade and commerce is for
promoting the welfare of the people and for economic development. The
government enters in trade and commerce through the three forms and tries to
accomplish the task of social and economic equality , but when the Public
corporations are given the power there may be chances of misuse of power
therefore the mechanisms of control mentioned above will make sure that the
corporations performs its duties properly.

MARKS:2X08=16

Q.8. Write short notes on any two of the following:

A) LOK PAL AND LOKAYUKTA


Introduction

One of the major threats of democratic countries is corruption , as early as 300B.C


Kautilya in his work Arthashastra said : when a person transfers butter from one
pot to the other its common for him to lick his fingers , but if he finds it tasty and
puts his hand back in the pot then he is guilty of corruption . The IPC defines
corruption as : when a public servant accepts gratification other than legal
remuneration for performing an official act , then he is guilty of corruption.

Meaning of Lok Pal and Lokayukta

Lok pal literally means caretaker of the people , it is established under The Lok Pal
and Lokayuktha Act 2013 , for the center and the states for the purpose of enqiring
and prosecute offenses relating to allegations of corruption under the Prevention of
Corruption Act.

Lokayuktha are established in the state level , even before the passing of the Lok
Pal and Lokayuktha Act , many states established the Lokayuktha , for eg, the state
of Karnataka established the Lokayuktha under the Karnataka Lokayuktha Act
1986.

History of the Lok pal and Lokayuktha

Based on the institution of Ombudsman in many Scandinavian countries, the


Administrative reforms Committee recommended the establishment of institutions
similar to that of an Ombudsman in India , because India is also a democratic
country and it also faces problems of corruption and administrative mal
administration. But unfortunately the bill was introduced in the Parliament 7
times , finally in 2013 the bill was passed.

The Institution of Lok pal has an enquiry wing and a prosecution wing , if the LoK
pal considers that a complaint given by a private individual has substance , it can
order preliminary enquiry to its Enquiry Wing or the CBI and based on their report
a charge sheet is filed by the Prosecution Wing before the Special courts
established Central Government.

B) DROIT ADMINISTRATIFF
Introduction:

Dorit Administratiff is a very old system. It was regularly put into practice
by Napoleon in the 18th century. Napoleon favoured freedom for the administration
and also favoured reforms. He wanted an institution to give relief to the people
against the excesses of administration. It was therefore, that in 1799 Conseil d’
Etat was established. The main aim of such institution was to resolve difficulties
which might arise in the cause of the administration. But with change in time it
started exercising judicial powers in matters involving administration. The position
involving administration the Conseil d’ Etat is final as it receives direct complaints
from the citizens.

Meaning: Dorit Administratiff is a branch of law which determines the


organisation, powers and duties of public administration.

According to Dicey: Dorit administratiff is that portion of French law which


determines:

1. The position and liabilities of state officials;


2. The civil rights and liabilities of private individuals in their dealings with
officials as representatives of the state; and
3. The procedure by which these rights and liabilities are enforced.

Under the French legal system, known as droit administraiff, there are two
types of laws and two sets of Courts independent from each other. The
ordinary courts administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as between subject
and the state. An administrative authority or official is not subject to the
jurisdiction of ordinary civil courts exercising powers under the civil law in
disputes arising between the private individuals. All claims and disputes in
which administrative authorities between the private individuals. All claims
and disputes in which administrative authorities between the private
individuals. All claims and disputes in which administrative authorities or
officials are parties do not come within the scope of the jurisdiction of
ordinary courts and they are to be dealt with and decided by administrative
tribunals headed by Conseil d’ etat.
Conclusion: Conseil d’ etat consists of body of men who are on the one side
the confidential advisors of the government and on the other decide the cases
of the subjects against the administration. In the latter case, they act as
uncommitted judges and if necessary condemn the executive act. This has
made the institution efficious. However, the researchers state no single
institution had done so much for the protection of private citizens against the
excesses of administration as has been done by the : Conseil d’ etat.

C) ADMINISTRATIVE DIRECTIONS

Meaning: Administrative directions are in the nature of instructions which are


issued by the government to the various departments. Generally administrative
directions are issued by the superior Officers to their sub-ordinates and contain
guidelines for exercise of powers.

Administrative authorities issue directions through letters, circulars, orders,


memorandums, pamphlets, public notices, press notes, etc.

Administrative directions and delegated Legislation: Distinction

Delegated legislation can be made only when the authority concerned has statutory
power to do so. Generally directions are issued under general administrative power
of the government, although, sometimes statutory power may also be given to issue
directions.

Delegated legislation is binding on both the administration and the individual. A


direction is generally not so binding and enforceable,

Kinds of directions:

1. Specific Directions
2. General Directions
Specific directions are one which is applicable to a particular purpose of a
particular case.
General direction lays down general principles, policies, practices or
procedures to be followed in similar cases.
Identification of directions:

Government is in continuous engagement in making legislation in the sense of


laying down general norms of public behaviour or administrative behaviour.
Government legislation may be classified as either delegated legislation or directs.
The terms code, rules, regulations which are used in the field of delegated
legislation are also used for directions.

In, Sukhdev Singh Vs. Bhagatram’s case the court held that whether a particular
piece of government legislation is delegated legislation or direction may be
determined on the basis of following factors-

1. If it discloses the statutory provision under which it has been made, then
should be regarded as a rule.
2. As to direction it is not essential to disclose the statutory provision under
which it has been made.
3. A piece of government legislation may be regarded as a rule if it is has been
made under a specific statutory provision which authorises to do so.
4. A piece of government legislation may be regarded as a direction if it has
been issued under a specific statutory provision which has authorised to do
so. Thus it is the source of power which is determining factor whether a
government order is a rule or a direction

Conclusion: the executive function comprises both the determination of the


policy as well as carrying it into execution. As the governmental functions have
increased, it is necessary for the government to issue Administrative directions
for the determination of policy and its uniform application. In this way
directions are issued for a variety of purposes.

MARKS :02X10=20

Q.9. Solve any two of the following:


a) A complaint was given by some girl students a college that some
students of their college entered and misbehaved in the ladies hostel . The
enquiry committee recorded the statements and evidence of the two girls of
the hostel in the absence of boys and expelled the boys from the college. Is it
valid?

Ans: One of the main principles of Natural justice is the rule of Audi Alteram
Partem (hear the other side). Or the rule of fair hearing . It means no one shall be
condemned unheard i.e. There must be fairness on part of the deciding authority.
According to this principle , reasonable opportunity must be given to a person
before taking action against him.

The Essentials of this rule are:

1. Notice

2. Hearing

So in the above problem , the enquiry committee committed grave error in


judgment when the boys were not given Notice and furthermore they were not
given a chance to be heard. So the decision by the enquiry committee is against the
principles of Natural Justice and hence it is void.

b) A state had consulted an assessment committee in order to recommend


and select books of various authors and publishers for various school subjects.
But some of the authors of text books are also members of this committee i.e ,
the author of the book is used to withdraw and other members were
considered for assessment . The result was that books of the members of the
assessment committee were got approved. Decide.

Ans: 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 to
be biased. This principle is based on the following rules:

1. No one should be a judge in his own cause.

2. Justice should not only be done , but manifestly and undoubtedly be seen to
be done; and

3. Judges like Ceaser’s wife should be above suspicion.

The rule against bias may be classified under the following three heads;
Pecuniary bias , Personal bias, Bias as to subject matter.

So in the above problem the Assessment committee’s decision is against teh


principles of Natural justice because the members of the Assessment committee
consists of authors of the books that needs to decided so this amounts to Personal
bias and hence violates Natural justice.

Similarly in the case of A.K.Kripak vs. Union of India - The Supreme court
quashed the selections made by the Selection Board on the ground that one of the
candidates appeared before selection committee was also a member of the
Selection Board.

c) The cane commissioner who had the power to reserve sugarcane areas
for the respective sugar factories, at the dictation of the Chief Minister
excluded 99 villages from the area reserved by him. Is it valid?

The expression Delegation of Authority or Delegated authority means transfer of


authority by the superior to the subordinate. Accordingly when a subordinate by
virtue of delegated authority passed a law , it is known as Delegated Legislation. It
means conferring one’s law making power to the another .

The subordinate authority depends on its continued existence on the superior


authority.

In the above case , if the chief minister is authorized to give orders to the Cane
commissioner , then the order is valid, but if he not authorized by the statute which
delegated the powers to subordinate authority then he is not permitted to act on the
dictation of the chief minister.

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