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CHAPTER-V

JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS THROUGH


WRITS : GROUND OF REVIEW
A. Introduction /

Judicial review means review by courts of administrative


action with a view to ensuring their legality. Administrative
authorities are given powers by statutes and such powers must be
exercised within the limits of the powers drawn by such statutes. In
judicial review of administrative action the courts merely enquire
1

whether the authority has decided according to law. In review,


reviewing authority does not go into the merit of the decision while in
appeal the appellate authority can go into the merits of the decision.
Thus, judicial review according to de Smith, is "inevitably sporadic
and peripherial”1 in judicial review, the courts undertake scrutiny of
administrative action on the touchstone of doctrine of 'ultra vires’.
As has already been stated,2 the Supreme Court and the High
Courts have power to review administrative actions through writs in
the nature of mandamus, certiorari, prohibition etc. under Article 32
and 226 of Constitution respectively. In India, these writs have been
borrowed from England where they have had a long and chequered
history of development and consequently, have gathered a number
of technicalities,3 Indian Courts, generally follow the technicalities of
English law. However, the Indian constitutional provisions are so
broad in language that they indicate that Indian courts are not bound
to follow the technicalities of the English law surrounding these writs.
But in practice, the attitude of the Indian courts is by and large
conditioned by the English approach and it is not often that the

1 de Smith, Judicial Review of Administrative Action (1980), p. 1.


2 See Supra chapter IV. f
3 Bassappa v. Nagappa, AIR 1954 SC 440; Dwarka Nath v. I.T.O. AIR 1966 SC
81.
241

courts show a tendency to depart from the technicalities of the


English law. The courts have generally been prone to follow the
principles developed in England. While the administration expands
and perfects new techniques to interfere with individual freedom
under the impulse of the concept of a socialistic society; the tools at
the disposal of the courts to control the administrative action remain
samewhat antiquated. The result is the anomalous position that an
individual aggrieved by administrative action may always not gets
relief through court action.
Historically, the basis of judicial review in England is the
doctrine of ultra-vires or excess of jurisdiction. The attempts by the
courts to extend this narrow concept to the modern problems of the
administrative process has introduced certain technicalities and
artificialities in the law relating to judicial review. The courts take the
position that writ jurisdiction is of a supervisory nature and cannot be
equated with an appeal to the court from the body in question.
Thus, the doctrine of ultra vires provides a half way basis of judicial
review between review on appeal and no review at all. In an appeal
the appellate authority not only quash the administrative decision,
but can go into the merits of the decision of the authority appealed
against and may substitute its own judgement in its place, while in
the case of ultra vires the powers of the courts are limited only to
quash the administrative decision if it is in excess of power of the
authority, or directing to act according to law and courts keep away
from examining the merits of the pase. Thus, an appeal.on a point of
law or fact is wider in scope and court has a wider jurisdiction. Thus,
the half way review, extent of which is not always clear, creates
uncertainty about judicial intervention in administrative action.
Sometimes, the courts may feel like intervening because they feel
strongly about the injustice of the case before them; sometimes they
are not sure of injustice and uphold the decision of the
administration. Courts lack frankness to admit this clearly which
leads them to state their conclusion in terms of artificial
conceptualism and vague formulae. The result often manifests itself
in inconsistent decisions and judicial uncertainty.
On the whole, the judicial review of administrative action is
undertaken with a view to ensuring that administrative agencies act
according to their allocated jurisdiction and according to the
principles of natural justice. The main ground for invalidating an
administrative action is ultra vires. However, over the years, the
courts have developed various grounds on which they could
intervene, yet the law regarding judicial review of administrative
action through writs is complicated, involved and deficient. This
point will become clear after the discussion of the grounds on which
they can be issued.
B. GROUNDS OF REVIEW THROUGH WRITS.
1. Jurisdictional Principle : Doctrine of ultra-vires.
A study of judicial control revolves round the question~of how
■!*

far the courts can go in an examination of the decisions or actions of


the administrative authorities in proceedings of review as distinguish
from those of appeal. To seek an answer to this question, the
subject has to be pursued in the context of the historical facts and
influence that guided and shaped it; the climate of values and
opinions that nurtured it; the spectrum of circumstances in which it
has to operate; and the state of development it has attained.
The law, regarding the judicial review of administrative action
in India was derived historically from the common law, the dominant
feature of which was the enforcement of controls over the powers of
243

public authorities through the ordinary court of law. Thus, from the
earliest times, the proceedings instituted before borough courts were
removable into the king’s court at Westminster.4 The superior courts
used to maintain a very tight control over the justices of the peace,
who exercised a wide range of duties, including repairs of highways,
bridges and other administrative matters. When most of the
administrative powers of the justices of the peace were transferred
to the local authorities in 1888, the courts maintained similar control
over the latter. While exercising their control over the lower courts
and tribunals, the courts claimed a right to determine the proper
jurisdiction of the former and to keep them within their jurisdiction. In
this process of review, there emerged the principle of jurisdiction,
otherwise known as ‘ultra-vires’ which marked off an area in which
the lower tribunals are absolute judges, but are not allowed to cross
the wall. The jurisdictional principle embodies a dichbtomy-those
cases in which a tribunal decides within its jurisdiction and those in
which it decides outside its jurisdiction, judicial control being
available only in latter class of cases.
The jurisdictional principle which determines the reviewability
of an administrative action is often expressed as ‘want or excess of
jurisdiction; The underlying doctrine is known as ‘ultra-vires’. The
doctrine of ultra-vires, as explained by Lord Selborne L.C. in one
case, ought to be reasonably, and not unreasonably understood and
applied, and whatever may fairly be regarded as incidental to, or
consequential upon, those things which the Legislature has
authorised ought not (unless expressly prohibited) to be held ultra-
vires.5 An obvious example of the ultra-vires principle was the case

Holdsworth, A History of English Law, Vol. 2(1936) pp. 395-405.


Attorney-General v. Great Eastern Railway Co. (1880)5 AC 473 at 478.
244

where the London Country Council having statutory powers to


purchase and work tramways, ran omnibuses. The House of Lords
held that the London Country Council had no jurisdiction to run
omnibuses which was not incidental to running of tramways.6
Similarly, a local authority with power to acquire land other than
i
‘park, garden or pleasure ground’ acts in excess of their jurisdiction
in acquiring land which is part of a park.7
Thus, the possibility of judicial review hinges on the question
whether their can be said to be an excess of jurisdiction. The
position has been somewhat modified by the ruling in Anisminic Ltd.
v. Foreign Compensation Commission8 that any error of law (intra-
vires or ultra-vires) could effect the jurisdiction. Therefore as far as
errors of law(as distinct from error of fact) are concerned the
distinction between jurisdictional errors and non-jurisdictional errors
was being abandoned. However, this has not been clearly
established. In Pariman v. Keepers and Governors of Harrow
School,9 Lord Denning M.R. stated that following Anisminic there
was no longer any distinction between errors intra-vires and errors
ultra-vires. Finally, in S E Asia Fire Bricks v. Non-Metallic Union10
the Privy Council finally rejected the view that distinction between
errors intra-vires and errors ultra-vires had been abandoned.
(a) Scope of the Doctrine
In theory the jurisdictional principle enables the courts merely
to prevent from acting in excess of powers, but in reality they have
increasingly entered into the heart of the subject matter by interfering
I

on grounds of unreasonableness, bad faith extraneous

6 London Country Council v. Attorney-General (1902) AC 165.


7 White and Collins v. Min. of Health (1939)2 KB 838.
8 (1969) AC 147.
9 (1979) QB 56.
10 (1981) AC 363.
245

consideration, unfairness, manifest injustice and fair-play etc. All


these heads of challenge have been grouped together under the
singe principle of ultra-vires.
Thus, the doctrine of ultra-vires is the basic doctrine in
r
administrative law. It is considered as the foundation of judicial
power to control actions of the administration. Ultra-vires refers to
action which is outside or in excess of powers of decision-making
bodies. While judges continue to use the term ultra-vires, it is
nowadays too limited a term to encompass the whole ambit of
judicial review. It may be preferable, therefore, to regard judicial
review as the decision-making process by the courts. By way of
example in R. v. Hill University Visitors exparte,11 Lord Brown
Wilkinson adopted the traditional language of ultra-vires.
If the decision maker exercises his powers .
outside the jurisdiction conferred, in manner
which is procedurally irregular or is wednesbury
unreasonable, he is acting ultra-vires his powers
and therefore unlawful.
The doctrine of ultra-vires is consistent with to some extent the
concept of rule of law, therefore, the concept of ultra-vires is
nowadays regarded by many as an inadequate rationale for judicial
review. Thus, the preferred view is that the courts need not resort to
fiction such as the intention of the parliament or the technicalities of
‘jurisdictional facts’ and ‘error of law’ but that rather the courts will
intervene whenever there has been an unlawful exercise of power.
As Dawn Oliver expresses the matter judicial review has moved on
from the ultra-vires rule to a concern for the protection of individuals
and for the control of powers.12

(1993)2 AC 237.
"Is the Ultra-vires rule the Basis of Judicial Review", (1987) Public Law 543.
246

(b) Basis of the Doctrine


Action for judicial review of administrative action, employing
concepts of intra-ultra vires and the rules of natural justice ensure
that the executive acts within the law. It is for the court to determine
following the granting of an application for judicial review-whether
the body in question has acted intra-vires or ultra-vires (i.e. inside or
outside its power). The principal classes of action may be pursued;
those which allege that there has been a breach of statutory
requirements and those alleging that a decision has been reached in
an unreasonable manner or in disregard of the rules of natural
justice. These broad headings have traditionally been divided into a
number of sub-headings. By way of illustration, a body may act
ultra-vires if it uses its powers for the wrong purpose,13 or if it abuses
its power14 or if adopts a policy which is so rigid that it fails to
exercise its discretion with which it has been invested.16 The law
imposes standards of reasonableness upon administrative bodies
and failure to act in a reasonable manner may caused a body to act
ultra-vires,16 a body may act ultra-vires if it is conferred with
delegated powers but delegates them further to another,17 Statute
may require that administrators adopt particular procedure in the
exercise of these powers; should they not do so, and the procedures
are judicially deemed to be ‘mandatory’ (compulsory) rather than
‘directory’ (advisory) a body will be held to be acting ultra-vires. If a
public body under a duty to act fails to act at all the court can order it
do so. The rules of natural justice must also be observed in decision

Attorney-General v. Fulham Corporation (1921)1 Ch. 440.


Westminster Bank v. Minister of Housing and Local Government (1971) AC 508.
Padfield v. Minister of Agriculture Fisheries and Food (1968) AC 997.
Association Provincial Picture House Ltd. v. Wednesbury Corporation (1948) 1
KB 223.
17
Bernard v. National Dock Labour Board (1953)2 QB 18.
247

making; where an individual has a right or interest at stake because


of an administrative decision he is entitled to fair treatment.18 All of
these grounds for review have been rationalised by the House of
Lords into three principal categories; illegality, irrationality, and
procedural impropriety.19 Lord Diplock remarked20 that today
“One can conveniently classify under the three
heads the grounds on which administrative
action is subject to control by judicial review.
The first ground I would call ‘illegality’, the
second 'irrationality’ and the third ‘procedural
impropriety’ that is not to say that further
development on a case by case basis may not in.
course of time added further grounds.”
Lord Diplock further elucidated the concepts :
By illegality’ as a ground for judicial review I
mean that the decision-maker must understand
correctly the law that regulates his decision­
making power and give effect to it. Whether he
had or not is par excellence a justifiable question
to be decided, in the event of dispute, by those
persons, the judges, by whom the judicial power
of the State is exercisable.
By ‘irrationality’ I mean what can now be
succinctly referred to as ‘Wednesbury’
unreasonableness.21 It applies to a decision
which is so outrageous in its defiance of logic or
of accepted moral standards that no sensible
person who had applied his mind to the question
to be decided could have arrived at it. Whether ~
a decision falls within this category is question
that judges by their training and experience
should be well equipped to answer......
I have described the third head as ‘procedural
impropriety’ rather than failure to observe basic
rules of natural justice or failure to act with

Wheeler v. Leicester City Council (1985) AC 1054.


Council of Civil Service Unions v. Minister for the Civil Service (GCHQ Case),
(1985) AC 374.
Ibid p. 410.
Associated Provincial Picture Houses Ltd. Wednesbury Corporation (1948) 1 KB
223.
248

procedural fairness towards the person who will


be affected by the decision. This is because
susceptibility to judicial review under this head
covers also failure by an administrative tribunal
to observe the procedural rules that are
expressly laid down in the legislative instrument
by which its jurisdiction is conferred, even there
such failure does not involve any denial of
natural justice.
That is not to say that further development on a
case by case basis may not in course of time
add further grounds. I have in mind particularly
the possible adoption in the future of the
principle of ‘proportionality’ which is recognised
in the administrative law of several of our fellow'
members of the European (Economic)
community....22
This classification has been proved very popular with the
courts. It encapsulates neatly the well established varieties of error
of law, which are grounds for judicial review. It was also accepted
that further grounds for judicial review. It was also accepted that
further grounds for review, such as ‘proportionality’ might emerge.
We may summarise the various aspects of each category in the
following table
Grounds for Judicial Review
Illegality Irrationality Procedural
Impropriety
Acting wrongly Failing to Act
Error of Law Fettering Unreasonable­ Failing to follow
discretion ness correct
procedure
Using powers for Taking into Unreasonable Breaching the
the wrong : irrelevant conditions rules of natural
purpose ■ considerations justice/fairness
or failing to take
into account
relevant

22 Council of Civil Services Unions v. Minister for the Civil Services (1985) AC 374
at 410-411.
249

considerations -

Acting in bad Wrongful Failing to


faith delegation of respect
power legitimate
expectation
Failure to Failing to give
exercise reasons for a
discretion decision

While Lord Diplock offered a rationalisation of the headings of


review, the question of terminology and classification remains
difficult and sometime obscure. This problem should be recognised
at the outset. It should also be borne in mind that the categories are
by no means watertight and discrete; at many instances there will
appear overlaps between the headings. By way of illustration a
decision maker may act ultra-vires by taking into account irrelevant
consideration he or she may also be acting irrationally. However,
the classification does not' fit’ tidily into Lord Diplock classification,
but nevertheless is helpful as an organising device.
(c) Unreasonableness an-umbrella concept.
Acting for improper motives, failing to take into account of
relevant consideration, failing to respect the requirement of natural
justice, fetter a discretion by adopting a rigid policy will all amount to
unreasonableness as understood by courts. The term
‘unreasonableness’ may thus be seen as an ‘umbrella concept'
which subsumes all the headings of review. Lord Greene- M R in
Associated Provincial Picture House Ltd. v. PWednesbury
Corporation23 alluded to the many grounds of attack which could be
made against a decision, citing unreasonableness, bad faith,
dishonesty, paying attention to irrelevant circumstances, disregard of
the proper decision making procedure and held that each of these

23
(1948) KB 223.
250

could be encompassed within the umbrella ‘unreasonableness : The


test propounded in the instance case was that whether an authority
had acted, or reached a decision, in a manner ‘ so unreasonable
that no reasonable authority could ever have come to it.’
Lawyers familiar with the phraseology commonly
used in relation to exercise of statutory
discretion often use the word ‘unreasonable’ in a
rather comprehensive sense. It has frequently
been used and is frequently used as a general
description of the things that must not be done.
For instance, a person entrusted with .a
discretion must, so to speak, direct himself
properly in law. He must call his own attention
to the matters which he is bound to consider.
He must exclude to consider. If he does not
obey those rules! he may truly be said, and often
is said, to be acting ‘unreasonably’. Similarly
there may be same thing so absurd that ho
sensible person could ever dream that it lay
within the powers of the authority....
The court is entitled to investigate the action of
the local authority with a view to seeing whether
they have taken into account matters which they
ought not to take into account, or conversely,
have refused to take into account and once that
question is answered in favour of the local
authority it may still be possible to say that,
although the local authority have kept within the
four comers of the matters which they, ought to
consider, they unreasonable that no reasonable
authority could ever have come to it. In such a
case, again, I thin the court can interfere.24
‘Irrationality’ is a concept which takes the courts further from
reviewing the procedures by which a decision has beer) made and
testing its legality, and close to substituting the courts’ own view of
the merits of the decision. The term ‘irrationality’ and
‘unreasonableness’ appear to be used at the judge’s on

24
Ibid at 229.
251

preference.25 Alternative expressions such as ‘arbitrary and


capricious’, ‘frivolous or vexatious and ‘capricious and vexatious’ are
also used on occasions to express the same concept.26 Acting
perversely’ has also been used to judicially express the idea of
unreasonableness.27
Thus, the standard of reasonableness imposed by the court is
high: to impose too low a standard would in effect mean the
substitution of judicial discretion for administrative discretion.
It is for this reason that Lord Greene, states that a decision is
unreasonable if it’ so absurd that no sensible person could ever
dream that it lay within the powers of the authority, and Lord Diplock
in council of Civil Service Unions v. Minister for Civil ’Services28
regarded 'unreasonableness as entailing a decision’... so
outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mid to the question to
be decided could have arrived at it.’
A decision of authority may also be unreasonable if conditions
are attached to the decision which are difficult or impossible to
perform. In Hall and Co. Ltd. v. Shoreham by Sea Urban district
Council,29 Lord Denning MR in the Court of Appeal held that
planning conditions.... must fairly and reasonably relate to the
permitted development and must not be so unreasonable that it can
be said that parliament clearly cannot have it intended that they
should be imposed."30

R.V. Devon County Council Ex parte G(1989) AC 573 at 577.


HWR Wade and C F For syth, Administrative Law, p. 391.
Hillingdon London Borough Council ex parte Pulhoper (1986) AC 484.
(1985) AC 374 at 410.
(1964) 1 WLR 240; See also Pyx Grentite Col Ltd. v. Minister for Housing and
Local Govt. (1958)1 QB 554.
30
Ibid at 572.
252

(d) Scope of the Doctrine of Ultra-vires in India


Historically, the basis of judicial review in England is the
doctrine of ultra-vires or excess of jurisdiction. The doctrine of ultra-
vires is the basic weapon for judicial control of administrative
authorities; since it has its ramifications through the length and
breadth of administrative law; it has been called "the central principal
of Administrative law."31
As in England, so in India, the doctrine of ultra-vires has
attained a high level of sophistication, so that the courts are enabled
not merely to control actions which are obviously outside jurisdiction,
but to examine the reasonableness, motives and relevancy of
considerations. Courts have also exercised controls on various
aspects of discretionary powers. Procedural errors are also held
jurisdictional if the procedural requirement is mandatory as
distinguished from directory.
Administrative actions in India are subject to judicial review in
cases of illegality, irrationality or procedural impropriety.32 In state of
A.P. v. Me Dowell & Co.33 the Apex Court while deaiing with the
administrative actions and judicial review, laid down that the scope
of judicial review in case of administrative action is limited to three
grounds : (i) unreasonableness which more appropriately be called
irrationality; (ii) illegality; (iii) procedural impropriety.
In this way, the doctrine of ultra-vires can be exercised as
follows :

Wade, Administrative Law (1977) p. 40.


Tata Cellular v. Union of India (1994)6 SCC 651; AIR 1994 SCW 3344; Pragoty
Supply Co. & Co.-op. Society Ltd. v. State, AIR 1996 Gau 17.
33
AIR 1996 SC 1627.
253

1. Illegality : this means that the decision-maker must correctly


understand the law that regulates his decision-making process
and must give effect to it.
2. Irrationality : this means that the decision is so outrageous in its
defiance of logic or of accepted moral standard that no sensible
person could have arrived at such decision.
3. Procedural Impropriety: this means that the procedure for taking
administrative decision and action must be fair, reasonable and
just.
4. Proportionality : This means that in any administrative decision
and action the end and means relationship must be rational.
5. Unreasonableness : this means that either the facts do not
warrant the conclusion reached by the authority or the decision is
partial and unequal in its operation.
Thus, judicial review of administrative action is permissible
only when actions suffers from vice of arbitrariness,
unreasonableness or unfairness. It is permissible to strike down an
action if there are malafides, bias, arbitrariness, bordering or
perversity or such unreasonableness as no reasonable man will
contemplate.34 Doctrine of ultra-vires is, therefore, not confined to
cases of plain excess of powers, it also governs abuse of power, as
where something is done unjustifiably, for the wrong reasons or by
wrong procedures. In law, the consequences are exactly the same;
an improper motive, or a false step in procedure makes an
administrative act just as illegal as does a flagrant excess of
authority.

34
Paharpur Cooling Towers Ltd. v. Bangaigaon Refinery and petrochemicals Ltd.,
AIR 1994 Del. 322.
254

The doctrine of ultra-vires is the principal instrument for


judicial control of administrative authorities. It embraces all kinds of
administrative acts done’ in excess of powers.’ Otherwise known as
‘jurisdictional principle’. However, in judicial review court does not sit
as a court of appeal but merely review the manner in which the
decision was made. The Supreme Court in Tata Cellular v. Union of
India,35 laid down that judicial review is concerned with reviewing not
the merits of the decision but the decision making process itself. If a
review of administrative decision is permitted, it will be substituting
its own decision which itself may be fallible. The duty of the court is
to confine itself to the question of legality. Its concern should be36
1) whether the decision-making authority exceeds its power;
2) committed an error of law;
3) committed a breach of the rules of natural justice;
4) reached a decision which no reasonable tribunal would have
reached;
5) abuse its power.
Untrammeled judicial review is not desirable.37 Arbitrariness based
on doctrine of proportionality is still no ground.38 It is also no ground
that the administrative action is not justified on merit.39 Court has to
confine itself with manner in which decision was made or order was
passed. It is not at all concerned with the merits of the decision.40
(e) Error of Jurisdiction
It is a basic principle of administrative law that no body can act
beyond its power this lies at the basis of judicial review on the

(1994)6 SCC 651.


Mansukhlal v. State (1997)7 SCC 622.
Paharpur Cooling Tower Ltd. v. Bangaigaon Refinery and Petrochemicals Ltd.,
AIR 1994 Del. 322.
38
State of A.P. v. Me Dowell & Co., AIR 1996 SC 1627.
39
K.L. Trading Co. Pvt. Ltd. v. State, AIR 1996 Gau 17.
40
S.R Bommai v. Union of India, AIR 1994 SC 1919.
255

ground of lack of jurisdiction. Similarly, no authority can exceeds the


power given to it. It refers to cases where authority has jurisdiction
but it exceeds its permitted limits, any action taken by it in excess of
its power is invalid. Thus, when an authority is empowered to grant
a stage carriage permit for a maximum period of 3 years, it cannot
grant the same for five years. J.K. Chaudhary v. R.K. Datta,41 is
illustrative of this point. In this case, the governing body of a college
affiliated to the Gauhati university dismissed its Principal, Mr. Datta
on the ground of misconduct. The Executive Committee of the
Gauhati university after hearing representations ordered
reinstatement. The court issued certiorari to quash the decision on
the ground of excess of jurisdiction, because the jurisdiction of the
university under Section 21(9) of the Gauhati university Act was
confined to “teacher" which term, as interpreted by the Supreme
Court did not include the “principal”. The university, thus acted
(■

without jurisdiction, or excess of jurisdiction.


Lack of jurisdiction may also arise when an authority has no
jurisdiction over the subject-matter or the parties. For example in
News papers Ltd. v. State Industrial Tribunal,42 the government had
referred a dispute which was not an “industrial dispute” for
adjudication to an industrial tribunal. It was held that the tribunal had
no jurisdiction to make an award in the dispute. In Chetkar v.
Vishwanath,43 the chancellor of the Patna university annulled a
resolution passed by the syndicate. The Supreme Court set aside
the chancellor’s order because it was passed without jurisdiction.
The jurisdiction was assumed by the chancellor wrongly by
misinterpreting the Act and the statute. However, an authority

41
AIR 1958 SC 722.
42
AIR 1957 SC 532.
43
AIR 1970 SC 1858.
256

having jurisdiction under one section of a statute cites a wrong


section of law as a source of its jurisdiction this provides no basis for
the issue of prohibition or certiorari.44 Thus, the Supreme Court in
State of Sikkam v. Dorjee Tsheringe Bhutia,45 held that where
source of power can be traced exercise of power can not be set
aside on the ground that it was done under a different provision.
A jurisdictional error may arise when a body having jurisdiction
fails to exercise the same. For example, under land Acquision Act,
before the State Govt, issues a notification acquiring property under
Section 6 an enquiry was to be held by the collector under section 5-
A. In Mayapati v. State of Haryana,46 where enquiry was hold by the
general assistant and not the collector. It was held by the P & H
High Court that enquiry by general assistant was without jurisdiction.
Consequently Section 6 notification, would also be illegal, for
hearing of objections under Section 5-A, by collector was sine quo
non of all further proceedings.
Lack of jurisdiction may also arise when an authority is not
properly constituted. If an authority is not properly consisted, than it
cannot have any jurisdiction to act. In Ammal v. Ramma,47 where
the statute requires three members to constitute a tribunal, a tribunal
composed of only two members was held to be acting without
jurisdiction by Madras High Court.
Lack of jurisdiction may also arise from the absence of some
preliminary fact or same fact collateral to the actual matter which the
body concerned may have to try and is a condition precedent to the
assumption of jurisdiction. Such a fact is known “jurisdictional fact’ a

Isha Beevi v. Tax Recovery Officer, AIR 1975 SC 2135.


AIR 1991 SC 1933.
AIR 1973 P & H 356.
AIR 1953 Mad. 129.
257

concept just discussed.48 It may also be noted that lack of


jurisdiction in a body cannot be cured by the consent of the parties
because it goes to the root of the matter.
(f) Working of the jurisdictional principle.
The analysis of the jurisdictional principle in the context of
English law gives a deceptive appearance of logical coherence and
theoretical soundness. But in practice, the courts always face the
dilemma of deciding whether any given question is jurisdictional or
not. The courts in India have experienced the same difficulty in
distinguishing between reviewable jurisdictional matters and
unreviewable errors committed within jurisdiction. Thus, in
Custodian of Evacuee Property v. Abdul Shukoor49 where the
custodian of evacuee property held that certain persons were
“evacuee” within the meaning of Section 2(c) of Mysore
Administration of Evacuee Property (Emergency) Act, 1949, the
Supreme Court refused to review the decision on the ground that the
orders in question being within jurisdiction. Such a decision, it was
held although erroneous is not open to review. But in Gorkha Ram
v. Custodian General.50 Where the Custodian General acting under
the administration of Evacuee Property Act, declared a property,
“evacuee property”, the court decided that the property was not
“evacuee property” and quashed the order of the Custodian General
to the contrary effect. The review was grounded on jurisdictional
error. In both cases the impugned orders were passed by the
Custodian of the Evacuee Property. In both cases they acted under
the similar statute i.e. The Administration of Evacuee Property Acts.
In both cases the problem was one of statutory jurisdiction and

48
Infra.
49
AIR 1961 SC 1087.
50
AIR 1961 SC 1805.
258

interpretation of key words in the statute; ‘evacuee’ in one case and


‘evacuee property’ in another. Yet in one case the court refused
review, holding the issue non jurisdictional and in another
substituted its judgement, treating the case as jurisdictional.
The fluidity of the concept is demonstrated by the extent to
which there has been a divergence of judicial opinions in treating
disputes as jurisdictional. The controversy at times reached a peak.
The decision of the Supreme Court in UjjamBai v. State of U.P.51 is a
typical example of those in which the question was greatly agitated.
In that case, petition was filed in the Supreme Court under Article 32
on the ground that a Sales tax Officer by misconstruing a provision
in a taxing statute imposed sales tax and thereby affecting the
petitioner’s Fundamental Right under Article 19(1) (g). Seven judges
bench of the Supreme Court had the task of deciding whether the
tax authorities acted outside their jurisdiction by misconstruing the
terms of a statutory notification and thereby assessing a trader to
sales tax. Mr. Justice Mudholkar, whose views represented the
majority opinion expressed himself as follows :
“A mere misconstruction of a provision of law
does not render the decision of a quasi-judicial
tribunal void (as being beyond its jurisdiction). It
is a good and valid decision in law until and
unless it is corrected in the appropriate manner.
S o long as that decision stands, despite its
being erroneous, it must be regarded as one
authorised by law and where, under such a
decision a person is held liable to pay a tax that
person cannot treat the decision as a nullity and
contended that what is demanded of him is
something not authorised by law. The position
would be the same even though upon a proper -

51
AIR 1962 SC 1621.
259

construction the law under which the decision


was given did not authorise such a levy.”52
The last sentence of these observations touches the crux of
the matter. Is it correct to say that a person who has no authority to
function ‘on a proper construction of an Act’ would still be within his
jurisdiction if he purported to comply with that Act even though he
misconstrued it? Is it not possible that an authority can exercise
jurisdiction by a wrong construction of a statutory provision which it
does not possess at all? The majority view of the Supreme Court in
this case seems to have answered the first question in the
affirmative and the second question in the negative. But the truth is
that the determination of whether any given fact or point of law is
jurisdictional is always a matter of construction of statutes and
statutory rules under which the decision is given. Thus an authority
may have jurisdiction to decide certain disputes under an Act and it
may make an order affecting a particular subject-matter which on a
correct interpretation it cannot make. The point may be illustrated
thus;53 A provision of the sales tax Act says that the sale of bidis is
not taxable; but the sales Tax officer on his own construction of the
provision holds that handmade bidis are taxable; on a proper
construction, the Act does not confer any power on Sales Tax Officer
to tax such bidis. In such a case, on one interpretation of the
provision of law, he had exercised jurisdiction in respect of a subject
matter which he possesses, but upon a proper construction the law
under which the decision was given did not authorise such a levy.’
In one sense he merely misconstrues a provision of law, but in
another sense he acts without jurisdiction in taxing goods which are

Id. at 1686.
The illustration was cited by Mr. Justice Subba Rao in his dissenting judgement
in Ujjain Bai case, Ibid.
260

not taxable under the Act. According to the majority decision in


Ujjan Bai case such a decision is not reviewable as it does not
involve any jurisdictional question. Thus, the court expressed the
view that a mere misconstruction of a provision of law does not
render the decision of an authority void as being beyond jurisdiction.
Despite the repeated pronouncements as to the vital
distinction of jurisdictional and non jurisdictional errors, the courts’,
decisions are characterized by a remarkable degree of inconsistency
and indifference to the orthodox conceptualism and a treatment of
these two kinds of errors as identical. Thus, in Union of India v.
India Fisheries Ltd.54 Where the Income tax Officer was in error in
Applying Section 49.E of the Income Tax Act, 1922 and setting off
the refund due, the Supreme Court upholding the decision of the
High Court to exercise its jurisdiction under Article 226 of the
Constitution observed,55 ... if we interpret Section 49-E as we have
done, it is a clear case of lack of jurisdiction. At any rate, there is an
error apparent on the face of the order. If the distinction between
errors of jurisdiction and errors within jurisdiction is so cardinal that
one renders a decision a nullity and the others leaves its validity
intact and an error is either of jurisdiction or of the merits, how can a
decision suffers from both lack of jurisdiction and an error apparent
on the face of the order. It is a contradiction in terms to say that a
tribunal having no jurisdiction commits an error in this jurisdiction,
just as saying that a decision of the tribunal. having jurisdiction
suffers from jurisdictional error. A tribunal either has or has not
jurisdiction to act. Therefore, the error has to be of one type or the
other, but cannot be both. According to the Supreme Court the error

54
AIR 1966 SC 35.
55
Id. at 37.
261

in this case was merely one of a misconstruction of a provision


which does not render the decision of a tribunal void as being
beyond jurisdiction. Yet the Supreme Court in the instant case
described the error as ‘a clear lack of jurisdiction’. The truth is that
the court has forgotten the distinction so often declared to be vital.
The soundness of the doctrine of jurisdictional cbntrpl has
further suffered from corrosion through sheer contradiction of the
courts in labelling the same question at one time as non-
jurisdictional and at another time jurisdictional, despite their own
admonition as to the vital distinction between the two. A salutary
instance is the case of Tata Iron & Steel Co. v, S.R. Sarkar,56 There
the commercial Sales Tax Officer had to ascertain, before he could
order payment of tax under the Central Sales Tax Act whether he
was satisfied (a) that the goods at the time of transfer of the
documents of title were in movement from the State of Bihar to the
State of West Bengal; (b) that the place where the sale was affected
under Section 4,(2) of the Central Sales Tax Act, 1956, was within
the State of West Bengal. The C.S.T.O. failed to apply what the
Supreme Court described as the ‘correct tests’ and made
assumptions which were not warranted’. The order of assessment
was held to disclose an error of law apparent on its face ‘on a true
construction of the provisions of the Central Sales Tax Act.’
Apparently this was a case of ultra-vires being either of 'collateral
fact’ wrongly decided, or of irrelevant considerations being taken into
account. But the Supreme Court treated it as a case of error of law
apparent on the face of the record and issued certiorari under Article
32. The decision was based on the finding that the sale in question
was an interstate sale which in view of the provisions of Article 229

56
AIR 1961 SC 65.
262

of the constitution and Section 3 of the Central Sales Tax Act, 1956
could not be taxed by the State.
The Supreme Court cited with approval the decision in Tata
Iron & Steel Co. Ltd. v. S.R. Sarkar,57 in a subsequent case State
Trading Corporation of India v. State of Mysore58 in which the same
issue namely whether the sale in question was interstate sale and
therefore liable to be taxed by the State in view of the same
provisions of the constitution and the Central Sales Tax Act, 1956
was raised. But this time, the Supreme Court interfered on a
different ground, i.e. on the ground that the Tax Officer gave himself
jurisdiction to tax the sale by deciding a collateral fact wrongly,
namely the fact that sale was not interstate sale. Thus, the same
question was treated by the Supreme Court on two different grounds
in two cases in one case an error of law apparent on the face of the
record and in another as ‘jurisdictional fact’. The’ former is
recognised as an error within jurisdiction, although the courts have
asserted their right to issue certiorari in such a case. The distinction
between errors of law apparent on the face of the record and
jurisdictional error remains significant for many reasons. The effect
of the former is to leave a decision valid, although erroneous, till it is
set aside is an appropriate proceedings, while the latter renders a
decision a nullity. While a void decision can be impeached in the
collateral proceeding, a valid decision cannot be disturbed by any
authority other than the appropriate one. As a direct consequences
of this distinction, some remedies such as declaration and
mandamus are not appropriate remedies to impugn a decision
tainted with error of law apparent on the face of the record. The

AIR 1961 SC 35 Ibid.


AIR 1963 SC 548.
263

arbitrary employment of the jurisdictional doctrine in cases involving


identical questions of law and fact has further erased the distinction
between jurisdictional and non-jurisdictional matters.
Thus, in almost all cases in which administrative action is
challenged on account of jurisdictional error the courts are faced with
the problem of statutory interpretation. To determine whether an
authority has exceeded its jurisdiction or not it is often necessary for
the courts to interpret the law and to intervene if the authority has
not acted in accordance with their interpretation. A distinction is
accordingly made between “an error of law affecting jurisdiction” and
“an error of law going to the merits of the case”. The former is
reviewable in all cases on the ground of ultra-vires, while the later
will be reviewable only when it is apparent on the face of the record
(a concept just discussed). Thus, courts exercise broader review
powers in relation to error of law within jurisdiction. However, this
distinction introduces an element of artificiality as it is not always
rationally possible to distinguish between the two types of errors of
law. In practice much depends on the attitude of the courts.
According to de Smith, “At bottom, therefore, the problem of defining
the concept of jurisdiction for the purposes of judicial review has
been one of public policy rather than one of logic.”59 Suppose an
Income Tax Authority having power to impose tax on income and not
on capital gains, imposes tax on a transaction which involves capital
gains. In one sense, it may be regarded as an error of law on merits
because that authority has power over the individual involved and to
determine whether the transaction in question amounts to “capital
gains” or “income”. But in another sense, it may be regarded as an
error effecting jurisdiction of the authority to tax as it has power to

59
de Smith, Judicial Review of Administrative Action (1980) p. 112.
264

tax only the Income and not capital gains, and, therefore, taxing
capital gains may be treated as a case of the authority exceeding its
power. So, it is not easy to maintain a distinction between mistake
of law pure and simple and mistake of law going to the root of the
jurisdiction of the body concerned.
Thus, the question is: what errors do, and what do not carry
an authority outside jurisdiction? In short, what counts as
“jurisdictional error”? In tackling the question “what counts as”
“jurisdictional error?” The Anisminic case’ is a "legal landmark”60
After House of Lords ‘decision in Anisminic case, the distinction
between these two types of errors has become untenable.
In Anisminic, the Egyptian Government paid a some of money
to U.K. Government to meet claims against it in respect of loss
caused by its sequestration of British property during the Suez
Crisis. Anisminic Ltd. Claimed compensation. Under the relevant
statutory Instrument the Foreign Compensation Commission
(F.C.C.)61 were directed to treat a claim as established if the
claimant satisfied them that, inter alia, both he and any “successor in
title” of his were British nationals. F.C.C. interpreted “successor in
title” to mean “subsequent owner” or “assignee”. On that basis
TEDO was Anisminic Ltd.’s successor in title and was not a British
nation, so Anisimic Ltd.’s claim failed. A majority (3:2) of the House
of Lords held on the contrary, that “successor in title” meant “person
succeeding to property on death or (in the case of a company)
liquidation." On that basis Anismic Ltd. had no successor in title and
TEDO’s nationality was immaterial. F.C.C. had accordingly, erred in

Per Lord Diplock in Re Racal Communications Ltd. (1981) AC 374 at 382.


Established by Foreign Compensation Act, 1950, Sec. 1. (English Act)
265

its construction of the statutory instrument. The majority1 Of House of


Lords held that error was jurisdictional: why?
The statutory instrument directed F.C.C. to award
compensation if they were satisfied that prescribed conditions,
including one relating to the nationality of the applicant and any
successor in title, were fulfilled. Clearly, the question whether the
conditions were fulfilled was remitted (authorised) to F.C.C. So, pre.
Anisminic approach to jurisdictional error, the court could hardly
have characterised the issue as “collateral" i.e. outside F.C.C.’s
jurisdiction. But the crux of the new approach adopted in Anisminic
is a shift of focus from the substance of an issue as being “collateral”
or otherwise to the juridical nature of an issue as being one of law or
otherwise. Accept that it is for F.C.C. to say whether the prescribed
conditions are fulfilled. That issue is within their authority, but it does
not follow that F.C.C. has jurisdiction to interpret authoritatively the
statutory words prescribing the conditions - i.e. to construe the
relevant statutory instrument. The majority in Anisminic hold that
F.C.C.’s remit (authority) did not extend to authoritative
determination of the meaning of the statutory conditions of
entitlement. F.C.C.’s erroneous construction of the “successor in
title” condition thus carried them outside their jurisdibtion. The
commission “failed to deal with the question remitted to it and
decided some question which was not remitted to it".62
It may be plain from what had just been said that the
Anisminic case establishes that certain errors of law are
jurisdictional. For the error in the case was plainly of that type : an
erroneous elucidation of the phrase "successor in title”, But one will
look in vain in the judgements in Anisminic for any general

62
Per Lord Reid, (1969)2 A.C. at 171.
266

proposition that error of law as such prima facie carries an


administrative tribunal outside its jurisdiction.
The case law has advanced considerably since Anisminic. In
Attorney General v. Ryan,63 the Privy Council applied the anisminic
principle in an appeal from the Behamas. It was a citizenship case
and the decision of the minister was challenged. Lord Diplock on
behalf of the Privy Council ruled that natural justice was necessary in
citizenship cases and that failure to accord natural justice to an
applicant for citizenship makes a decision of the minister a nullity.
He observed :
It has long been settled law that a decision
affecting the legal rights of an individual which is
arrived at by a procedure which offends against
the principles of natural justice is outside the
jurisdiction of the decision-making authority.64
The matter has not stopped with Anisminic and the trend of
broadening “jurisdictional error” has continued so as to practically
obliterate any distinction between” jurisdictional error” and. error of
law”. Lord Denning advanced this approach in Pearlman v. Harrow
School.65 And Lord Diplock in Re Racal communications66. He said :
...if the administrative tribunal or authority have
asked themselves the wrong question and
answered that they have done something that
the Act does not empower them to do and their
decision is a nullity”67
Lord Denning followed this approach in R.V. Chief Immigration
Officer, ex p. Kharrazi, where he quashed a determination by an
immigration officer because he had interpreted the law very narrowly

(1980)2 W.L.R. 143.


Id, at 152.
(1979)3 Q.B. 56.
(1980)2 All E.R. 634.
Id. at 638..
267

and thus made an error of law making his decision ultra-vires. In


O’Railly v. Mackman68 said that it
“liberated English public law from the fetters that
the courts had theretofore imposed on
themselves... by drawing esoteric distinctions
between errors of law committed by such
tribunals that went to their jurisdiction and errors
of law committed by them within their
jurisdiction”69
It appears that since Anisminic, any error of law by an
administrative tribunal or authority is prima facie jurisdictional Issues
of fact, degree or policy on the contrary, are for the authority to
decide. This statement is based substantially on obiter dicta of Lord
Diplock in Re Recal Communication Ltd.70 decided after 12 years
after Anisminic. Lord Diplock said :
“The break through made by Anisminic was that,
as respects administrative tribunals and
authorities, the old distinction between errors of
law that went to jurisdiction and errors of law
that did not was for practical purposes
abolished. Any error of law that could be shown
to have been made by them in the course of
reaching their decision on matters of fact or of
administrative policy would result in their having
asked themselves the wrong question with the
result that the decision they reached would be a
nullity”.71
As we shall see, these dicta take account of case law developed
since Anisminic. The post-Anisminic case law relates to errors of
law relating to (i) misstatements (ii) misapplication of legal rules (iii)
and the errors of law at the fact finding stage which have been held
to be jurisdictional errors.

(1983)2 AC. 237.


Id. at 278.
(1981)A. 374.
Id. at 383.
268

(i) misstating the law; An authority errs in law if it errs in its


statement of a rule or its elucidation of a statutory word or phrase will
the error be jurisdictional? An authority will commonly elucidate (i.e.
indicate its understanding of the meaning of) statutory words by
addressing itself to certain question which appear to it to require
answers if the rule is to be applied to the facts before it. So e.g. in
Anisminic case FCC decided that “as TEDO was not a British
national and as TEDO was the “successor in title" or assignee of the
appellants (the claim failed). FCC had asked themselves whether
TEDO was the assignee of the company on the basis that
“successor in title" meant “assignee”. This then, was the error of
elucidate which as the majority of House of Lords, held, caused FCC
to ask themselves the wrong question and carried them outside
jurisdiction.
In the same view in Islam v. Hillingdon L.B.C.72 the applicant
had been evicted from one room rented accommodation when he
was joined by his wife and children from Bangladesh. The local
authority decided that he had become homeless intentionally
“heaving deliberately arranged for his wife and children to leave
accomodation (in Bangladesh) which it would have been reasonable
for them to continue to occupy". The statute, however,, referred to
“accomodation... which it would have been reasonable for (the
applicant) to continue to occupy” (Housing (Homeless Persons) Act,
1977 Sec. 16): so the authority had asked itself the wrong question :
and on this basis alone the House of Lords would have quashed the
decision.73

(1983)1 AC 688.
Id. at 715.
269

As already observed Anisminic itself was a case where an


error of law of the type we are considering was characterised as
jurisdictional. After Anisminic it seemed probable that such errors, at
any rate when perpetrated, by an administrative tribunal or authority,
and subject to specific contrary indications in particular statutes,
would be held to be jurisdictional. The case law since Anisminic
suggests strongly that this is the proposition74
(ii) Errors of Law in applying Law to facts : To the extent that a
particular authority’s misstatements of law carry that authority
outside jurisdiction, to the same extent should its errors of law in
applying to facts do so. The reasoning is as follows. If the error of
application is on a point where applying the law to the facts requires
the skill of a trained lawyer, the error is error of law because the
issue is purely one of law. The error is as much by definition an
error of law as is a misstatement of a rule of law. Accordingly, it
would appear artificial to distinguish here between the effects of
errors of law in applying law to facts and errors of misstating of law.
In administrative law, though, the application of law to facts will
commonly be a matter as much for a layman properly instructed on
the law as for a lawyer.
In Coleen Properties Ltd. v. Minister of Housing75 a local
authority had clearance powers over land adjoining a slum.
Clearance area if the acquisition of the adjoining land was
“reasonably necessary for the satisfactory development or use of the
cleared area". At a public inquiry the authority had simply asserted
the necessity of the acquisition of particular adjoining land whereas
the owner of the land had led contrary expert opinion. The Minister

In R.V. Deputy Governor of Comphill Prison ex P, King (1985) Q. B. 735.


(1971)1 W.L.R. 433.
270

confirmed the order against the inquiry inspector’s recommendation.


But the court of Appeal quashed the order because there was no
material upon which the Minister could have come to his conclusion.
In R.V. Environmental Secretary ex p. Powis,76 on the other
hand, the court of Appeal refused to quash the Secretary’s ruling
under a similar statutory provision that the acquisition of certain land
was reasonably necessary for the authority’s purposes. The Minister
had considered material on the basis of which that conclusion could
properly be reached.
(iii) Error of law at the fact finding stage : If an authority finds that
t .

particular events occurred, although it is seised of no, admissible


evidence that they did in fact occur, the authority errs in iaw. But is
the error jurisdictional? In 1922 in R. Nat Bell Liquors Ltd.77 Lord
Summer was emphatic that it was not. “To say that there is no
jurisdiction to convict without evidence is the same thing as saying
that there is jurisdiction if the decision is right, and now if it is
wrong...”78 But this view, oft-cited as it is and authoritative as it
appears, must now be treated with reserve. Moreover, in 1922 there
was no doctrine that errors of law as such were prima facie
jurisdictional. There is now substantial authority for this proposition
as it relates to errors of law. The courts have referred generally to
"error of law” and there is no obvious reason why errors of law at the
fact finding stage should not be included. Indeed, there is one class
of cases where it is well established that an authority which in effect
finds facts on no admissible evidence thereby goes outside
jurisdiction. Whatever may be the effect of a findings of fact, though

(1981)1 W.L.R. 584.


(1922)2 A. C. 128 (PC)
Id. at 152.
271

erroneously, will in genera! be held to fall within an authority’s


jurisdiction.
Thus, after Anisminic, the distinction between "error of
jurisdiction” and “error of law” has become untenable and in India, a
view has been expressed that the distinction be done away with and
j
all errors of law be regarded as reviewable.
After Anisminic, it is unnecessarily complicating the law to
keep alive any distinction between “jurisdictional error” and “error of
law”. All errors of law result in decisions being taken outside the
jurisdiction. It is much simpler to evolve a broad concept of
“jurisdictional error" and include therein the concept of “error of law”
as well. Denial of natural justice is already included within the
concept of “jurisdictional error" as is clear from Ryan.
If the concept of “error of law” is included within the concept of
“jurisdictional error”, then the concept of “error of law” apparent on
the face of the record” Discussed below, will become redundant,
and no longer there will be need to decide whether an error of law is
patent or latent. This will make the law of judicial review simpler, as
one can simply ask the court to review a decision on grounds of
excess or abuse of jurisdiction. Any way there is no compulsive
reason for the courts in India to continue to adhere to the old
orthodox, conceptualistic thinking in England. They can very well
follow the lead given by Lord Denning and Diplock.
2. Review of Law.
In English law, control of inferior jurisdiction on matters of law
turns upon two different principles. Firstly, there is the principle of
jurisdictional control. Secondly, the rule of error of law apparent on
the face of the record has been devised as an exception to the
above principle. Both these principles enable the courts to exercise
272

control on question of law. One of the curious features of the


English law of judicial control is that although the jurisdictional
principle is the central base of control it is little discussed outside the
context of ‘jurisdictional fact’. Judges and commentators alike
overlook the fact that the principle of ultra vires, when invoked on
undisputed facts, necessarily involves question of law, i.e. question
of legal limits of powers. Yet the whole emphasis of review of law is
on the principle of ‘error of law apparent on the fact of the record’,
which covers only one segment of the subject. In R.V. Shoreditch
Assessment Committee79 Farfell L.J., while justifying the principle of
jurisdictional control observed :it is immaterial whether the decision
of the inferior tribunal the question of the existence or non-existence
of its jurisdiction is founded on law or fact.’ Therefore, a discussion
on review of law must also embrace the legal aspect of the general
doctrine of ultra vires. The doctrine of ultra vires enables the courts
to review question of law in innumerable contexts. It is not possible
in the present work to deal exhaustively with the extent of review
over question of law permitted by the doctrine of ultra vires. It would
suffice to say that review on this ground extends as much to
questions of law as those of fact.
The approach of the Indian Court in reviewing administrative
determinations on matters of law finds its expression in three
different ways. ■ Firstly, the courts review the inferior tribunals’
decision on matters of law by means of the jurisdictional principle.
Secondly, they review actions on the principle of error of law
apparent on the fact of the records. Thirdly, they resort'to review’ on
a true interpretation of statute’ without reference to either to
jurisdictional principle or to error apparent on the fact of the record.

79
(1910)2 KB 859, 880.
273

So, in India, just as in English law, courts often review questions of


law but designate them as ‘jurisdictional law’. In S.T. Corporation of
India v. State of Mysore,80 the jurisdiction of the tax authorities
depended on whether or not the sale in question was an ‘inter-state
sale’ as defined in Section 3(a) of the Central Sales Tax Act. In view
of the provisions of the constitution (Article 269) and the Central
Sales Tax Act, (Act of 1956), the State could not tax such a sale.
The cement concerned in the sale was actually moved from one
state to another a fact which was not denied. Therefore, the
question was whether on the undisputed facts the sale was an ‘inter­
state sale’ within the meaning of the statutory provision. The
Supreme Court held that the Taxing Officer gave himself jurisdiction
to tax the sale by wrongly deciding this question. The Supreme
Court described this question as a ‘collateral fact'. But this was
obviously a case of ‘jurisdictional law’. It is necessary to emphasize
that, 'despite the general habit of discussing the rule as one dealing
with a certain class of facts, it extends equally to certain class of
questions of law.'
(i) Error of Law apparent on the face of the record.
Error of law apparent on the face of the record as a ground of
review of law has received sufficient attention in legal literature. It is
distinguished from the principle of jurisdiction in that it is not founded
on any notion of jurisdictional control and consequently forms an
exception to the latter. Review is confined to errors apparent on the
face of the record. Historically, however, this requirement was not
originally insisted upon. In the seventeenth century error of law could

J.

80
AIR 1963 SC 548.
274

grant certiorari Without being ‘on the face of the record' : Henderson
• R1
writes
“One decisive set of facts emerges from the
seventeenth century precedents : There is, no
case in the reports before 1695 in which kings’
bench refused to review an objection based' on
the language of the applicable statute whether
or not the objection appears ‘on the face’ of the
order. Many orders, on the other hand, were
quashed because’ it does not appear’ that
statutory requirement had been followed,
whether or not that requirement was properly
jurisdictional by modern criteria.”
Henderson, however, goes on to observe, ‘yet it is probable
that “the face of the record’ rule existed’.
The first case in which the ‘face of the record’ was applied to a
statutory requirement was Wootton Rivers v. St. Peter’s
Marlborough.82 In this case the order of two justices was impugned
for removing a poor woman to her legal settlement in spite of the
objections and they did not state that she did not rent a tenement
worth 10 per annum a statutory requirement of removal orders. Lord
Holt said in this case that every requirement of a statute that
operates ‘by way of jurisdiction’ must appear in an order based
thereon. This statement shows that the notions of jurisdiction and
error of law were inextricably mixed up.
R. v. Inhabitants of Woodsterton83 is the first case in which
‘the face of the record’ rule was unambiguously applied to a
■U

statutory requirement. There an order of two justices of the peace to


an overseer of the poor to make certain payments for poor relief was
upheld in spite of the non-compliance with the statutory requirement

Foundation of English Administrative Law (1963) p. 147.


'3 Salk 254, 5 Mod 149(1695/6).
Barnard KB 207, at 247(1732-33).
275

of cause notice. After 1870 this principle of judicial control seldom


worked and in fact its very existence was almost forgotten, until it
was revived by the decision in the R. v. Northumberland
Compensation Appeal Tribunal.84 Lord Denning said in this case :
“We have a simple case of error of law by a
tribunal, error which they frankly acknowledge.
It is an error which deprives Mr. Shaw of the
Compensation to which he is by law entitled. So
long as the erroneous decision stands, the
compensating authority dare not pay Mr. Shaw-
the money to which he is entitled lest the auditor
should surcharge them. It would be quite
intolerable if in such a case there were no
means of correcting the error."85
The tribunal committed the error in question by counting only
the second period of service, whereas under law they should have
counted both the periods while calculating statutory compensation
for Mr. Shaw.
Even after the revival of the principle, its impact was ‘relatively
slight’ until the Tribunal and Inquires Act, 1958. This was firstly
because a wide range of errors was held to go to jurisdiction, and
secondly every few tribunals were required by statute to. state
reasons for their decisions. The Tribunals and Inquiries Act, 1958,
have effected a material change in the law. Section 12 of the Act
provides that each of the tribunals specified in the First Schedule
must furnish a statement, either oral or written, of the reasons for its
decision, if requested to do so. A similar obligation is imposed on
the ministers in respect of matters which could be made the subject
of statutory inquiry (section 12(1)). Again, any statement of the
reasons for a decision given by any of the specified tribunals or by a

(1952)1 KB 338.
Id at 354.
276

minister ‘shall be taken to form part of the decision and accordingly


to the incorporated in the record (section 12(3)). The meaning of
‘record’ has been widened to include oral reasons. In English law,
therefore, judicial review on the ground of error of law apparent on
the fact of the record is very wide.
However, since the decision of the House of Lords in
Anisminic Ltd. v. Foreign Compensation Commission86 where the
error of law committed by the tribunal was held to have destroyed its
jurisdiction, the distinction between errors ultra vires and errors intra
vires is said to have declined. It is said that ‘since Anisminic, the
requirement that an error of law within the jurisdiction must appear
on the face of record is now obsolete.87 Lord Diplock has said extra-
judicially that the Anisminic case “renders obsolete the technical
distinction between errors of law which go to ‘jurisdiction’ and errors
of law which do not. In doing so it enlarges the material that can be
made available to the court on certiorari to found an inference that
those responsible for an administrative decision have erred in law.
Thus, the technicalities as to what constitutes the ‘record’ for the
purposes of review no longer matter’’88 Lord Diplock repeated his
view as to the diminishing importance between errors intra-vires and
errors ultra-vires in O’Reily v. Mackmen.89 In early Indian law,
apparent or otherwise was not recognised as a ground of review,
and the jurisdictional error was the only ground of review. Thus in
Kumarswami v. Munirathana Mudali90 an application for a writ of

(1969)2 AC 147.
Per Robert Goff L. in Greater Manchester Cornor Ex p. Tal (1984) 3 All ER 204
at 249(Obiter). i
(1974) 33 CLJ 233 at 243.
(1983)2 AC 237 at 278.
ILR (1932)55 Mad. 942.
277

Certiorari to have the order of the Revenue Board Quashed was


dismissed. Beasley C.J said :
“With regard to the issue of writ of certiorari, it
has been laid down by this court, following the
decisions of English courts that a writ of
certiorari will only issue where it is shown that
the court, whose order is sought to be made the
subject of the writ, has acted either without
jurisdiction or in excess of it.”91
Similarly in T.S.S. Pillai v. Ahmad Miran92, it was held that if, in
an enquiry by an election commissioner, an error is made which
goes beyond the jurisdiction of the tribunal or is done without
jurisdiction, and is not merely a wrong view of law, then a writ can be
granted. The most surprising thing is that error of law as a ground of
certiorari was denied by citing those English cases in some of which
this principle was asserted. Thus, in Shanmuga v. Subbordaya93
several petitions for certiorari challenging an order of the Election
Commissioner as incorrect interpretation of Section 49 of Madras
District Municipalities Act, 1920 were dismissed.
The plausible explanation of the refusal of certiorari on the
ground of error of law in that period is that the principle suffered a
decline in English law as well after 1870. Another factor responsible
for the obscurity of this principle is that it was treated ip, many cases
t

as jurisdictional error a situation analogous to the seventeenth


century English law. Thus, in Krishnaswami Aiyar v. Mohanlal
Binjani94 where under the Madras Buildings (Lease and ’control) Act,
1946, Section 7, the chief Judge of the court of small causes found
that an envelop containing a cheque for rent was refused by the

Id. at 944; See also Assam v. Bijli Sahds, (1932) 57 Mad. 571 at 576.
AIR 1934 Mad. 357.
AIR 1933 Mad. 133.
(1948)11 MLJ 559.
278

landlord but granted an order for eviction on the ground that the
v
tender was invalid; the order was quashed by certiorari on the
ground of error apparent on the face of the proceedings. But the
ground was hold to be one of error of jurisdiction.
The uncertainty not only persisted even after the adoption of
the constitution but also deepened after the decision in Parry & Co.
v. Commercial Employees Association95 and Ebrahim Aboobakar v.
Custodian. General of Evacuee property New Delhi96 cases. In the
former case the Supreme Court held that the Madras High Court
could not issue a writ of certiorari to quash a decision passed within
its jurisdiction by a labour commissioner under the Madras shops
and establishments Act, 1947, on the ground that the decision was
wrong. In Ebrahim’s case the Supreme court said that if a statutory
tribunal acted within its jurisdiction, a mistake would not furnish
grounds for certiorari. As a result even after error of law apparent on
the face of the record was revived in English law in Rov. Northumber
land compensation appeal tribunal,97 the Allahabad High Court
refused to apply this principle in Sheo Kumar v. G Oak,98 on the
ground that the Supreme Court had not recognised it. The Supreme
Court mentioned error of law apparent on the face of the record in
T.C. Bassappa v. T. Nagappa" as a ground of certiorari. Veerappa
v. Raman & Ramman Ltd.100 is the earliest case inrwhich the
Supreme Court referred to ‘error apparent on the face of the record’
as one of the grounds on which the High Court could exercise
powers under Article 226 but it was not made clear, whether the

AIR 1952 SC 179.


AIR 1952 SC 319.
(1952)1 All E.R. 122
AIR 1953 All. 633.
AIR 1954 SC 440.
AIR 1952 SC 192.
279

error was error of law. However, after Bassapa’s case this principle
was recognised by the courts without any hesitation. Thus, the
Supreme Court issued certiorari under Article 32 of the constitution
in Tata Iron & Steel Co. v. S. R.Sarkar101 on the principle of error of
law apparent on the face of the record to sat aside an assessment
order. However in UjjaimBai102 the Supreme Court refused to accept
this principle as a ground of review under Article 32 saying that a
misconstruction of a statute not involving jurisdictional error does not
infringe fundamental right and consequently does not entitle anyone
to seek the interference of the Supreme Court. The effect of this
reasoning seems to be that error of law apparent on the face of the
record is no longer available under Article 32 of the constitution.
The High Courts, however, can issue certiorari on this ground under
article 226 of the constitution.
(ii) Problem of distinction between ordinary error of law and
error of law apparent on the face of the record :
The error of law apparent on the face of the record as a
principle of judicial review was established in India, but it brought in
its train the problem as to where to draw the line between ordinary
error of law and error of law apparent on the face of;.the record.
Venkatarama Ayyar, J. dealt with the problem, in Hari Vishnu v.
Ahmad Ishaque103 thus :
“Mr Pathak for the first respondent contended on
the strength of certain observations of Chagla
C.J. in Butuk K. Vyas v. Surat municipality104
that no error could be said to be apparent on the
face of the record if it was not self evident and if
it required an examination or argument to
101 AIR 1961 SC 65.
107 Ujjain Bai v. State of U.P., 1962 SC 1621 ; See also Pioneer Traders v. Chief
Controller, Imp. & Exp., AIR 1963 SC 734.
AIR 1955 SC 233.
104
AIR 1958 SC 398.
280

establish it. This test might afford a satisfactory


basis for decision in majority of cases. But ther.e
must because in which even this test might
break down because judicial opinions also differ,
and an error that might be considered by one
judge as self evident might not be so considered
by another. The fact is that what is an error
apparent on the face of the record cannot be
defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very
nature, and it must be left to be determined
judicially on the facts of each case”.
It will be seen from the above remarks that Judge could not
lay down any objective test. In Nagendra Nath Bora v.
Commissioner of Hills Division2, Sinha J., (as he than was)
distinguished between ‘essential requirements of law’ and 'more
formal or technical errors’ as a test. In Stayanarayanan v.
Malikarjun105 Das Gupta J., makes another, attempt to define it.
“An error which has to be established by a long
drawn process of reasoning on points where
there may conceivably be two opinions can
hardly be said to be error apparent on the face
of the record. As the above discussions show
the alleged error in the present case is far from
self-evident and if it can be established, it has to
be established, by lengthy and complicated
arguments’’106
The test suggested above, namely the distinction between the
“ K,
essential requirements of law and ‘mere formal error and the nature
of the arguments may also break down, for what is an essential
requirement to one judge may appear to be a mere formal
requirement of law to another. Similarly, what is complex to one
judicial mind may be clear and obvious to another; it depends upon
the equipment of a particular judge. The truth is that the concept

105
AIR 1960 SC 137.
106
Id. at 141-42.
281

has a subjective element that defies any precise definition. As


Subba Rao J put it in K.M. Shanmugan v. S.R. V.S.(P) Ltd.107 In the
ultimate analysis the said concept is comprised of many
imponderables : It is not capable of precise definition, as no
objective criterion can be laid down, the apparent nature of the error,
to a large extent, being dependent upon the subjective element
whether' the case falls on the one side or the other of the dividing
line will depend on the statutory construction in any given case.
Thus, the position, is that an error is apparent on the face of
the record, if it can be ascertained merely by examining the record
without having to have recourse to other evidence. No error of law
can be said to be apparent on the face of the record if it is not self
evident or manifest, or if it requires an examination or argument to
establish it; or if it has to be established by a long drawn out process
of reasoning on points where there may conceivably be two opinion.
In other words, an error which has to be established by lengthy and
complicated argument is not error of law apparent on the face of the
record108 But test is not articulate and it may fail at times because
what may be considered by one judge as seif evident might not be
considered by another.109
That if on a question of law two opinions are possible (e.g. on
an interpretation of a statutory provision or of a regulation)110 and the
tribunal has adopted one of the two possible views its decision does
not disclose an error of law apparent on the face of the record.*111*
Thus, in Satyanarayanan v. Malikaarjun112 where a tribunal made an

107 AIR 1963 SC 1626.


108 Satyanarayan v. Malikarjun, AIR 1960 SC 137.
109 Hari Parkash v. Md. Ishaque, AIR 1955 SC 233.
150 Principal, Patna College v. K.S. Raman, AIR 1966 SC 707 at 713.
111 Amrik Singh v. B.S. Malik, AIR 1966 Punj 344 at 348; See also Sayad Yakoob v.
Radha Krishan, AIR 1976 Kar. 158.
112 AIR 1960 SC 137.
282

order for possession in favour of the lessor without a previous notice


to the lessee as required by Section 14 of the Bombay Tenancy and
Agricultural Lands Act, 1948 on the view that the alleged error was
not an error apparent on the face of the record, since two opinions
on the question (of the requirement of previous notice were possible.
This seems to be a very much narrower view of the principle as
understood in England. In English Law, if the reviewing court can
find from the record (i) that a tribunal has determined a point of law
and (ii) that the determination is mistaken, the principle of error of
law is invoked. Thus Lord Pearce said in Armah v. Govt, of
Ghana113 that “the High Court has always had power by writs of
habeas corpus and by certiorari to correct any error of law provided
that it is able to see that the error has occurred...” Indian law is
more akin to the policy of the American courts in upholding an
agency determination if it has a ‘reasonable basis in law’, than to the
English principle of error of law apparent on the face of the record by
which the English courts correct any error of law provided that ‘it is
able to see that the error has occurred.’
However, the courts may interfere if only one interpretation of
the law is possible and the body has not adopted the same; or if the
construction adopted by it is perverse, i.e. no reasonable men would
adopt. In Ambika Mills v. Bhatt;114 the construction placed by the
tribunal on two clauses of an agreement between the Ahmedabad
Mills owners' Association and the Textile Labour Association was
held to be patently and manifestly erroneous,’ It is not a case where
two alternative conclusions are possible; it is a case of plain
misreading of the two provisions ignoring altogether the very object

"3 (1966)3 All ER 177 at 199-200; See also R. v. Greater Manchastor Comer exp.
Tal, (1984)3 All ER 240.
"A AIR 1961 SC 970.
283

with which two separate provisions are made.113 In Hind Trading


Co. v. Union of India,116 the Supreme Court quashed an order of
collector of customs by issuing certiorari holding that when a tribunal
come to a conclusion which could not reasonably be entertained by
them if they properly understood the relevant enactment then they
\
fall into error in point of law.”
If an adjudicatory body disposes of a matter without applying
its mind, to a material circumstance which has been duly brought to
its notice, it amounts to a patent error of law.117 Ruling of a High
Court is binding on every judicial and quasi-judicial body within the
jurisdiction of that High Court unless the same has been reversed
by the Supreme Court which, is the Highest Court of the land. Thus,
if such ruling of the High Court is disregarded by quasi-judicial body,
it amounts to an error of law apparent on the face of the record. In
K.P. Nanjunath v. State of Karnataka,118 the High Court quashed the
order of the state government made in its adjudicative capacity,
because it had disregarded the ruling of the High Court. The court
emphasized that even the government acting in adjudicative
capacity is no exception in regard to its obligations to follow the High
Court rulings.
In the same manner, if an authority ignores relevant
consideration, take into account irrelevant considerations, in
reaching its decisions, it amounts to a patent error of law. These
flaws in the decision making may even be regarded as jurisdictional
errors following A'nisminic approach.

Id. at 974.
AIR 1970 SC 1858.
Kays Concerns v. Union of India, AIR 1976 SC 1525. s;
AIR 1976 Karn. 158; See also Collector of Customs v. Pednakar, AIR 1976 SC
1408.
284

A court may not intervene when a body disregards not a


mandatory provisions of law but executive instructions or directions
which have no force of law.119
The principle of error of law on the face of the record is further
strengthened by the requirement to state reasons for decisions. If
i

the reasons are given then the court can detect errors from the
reasons. However in India, like in English law,120 there is no general
legislation requiring a tribunals to state reasons for their decision, but
the Indian courts have imposed this obligation on judicial and quasi­
judicial bodies,121 and where an appeal has been provided for
against the decision122 as the right of appeal might be rendered
nugatory without the disclosure of reasons. Reasons so given, must
be adequate, intelligent and certain otherwise the decision will have
to be set aside for failure to give reasons.123 This is necessary for, in
the absence of reasons, it is not possible for the courts whether an
error has been committed or not. As a result, the principle of error of
law apparent on the face of the record, in so far as it is recognised (it
can be invoked under Article 226 but not under Article 32 of the
constitution) has been strengthened.
(iii) Insufficiency of Evidence
While ‘no evidence’ is a ground of review, the Supreme Court
has observed that if there is some evidence to support the findings
“the adequacy or reliability of that evidence is not a matter which can
be permitted to be canvassed before the High Court,”124 in

Abdullah v. S.T.A. Tribunal, AIR 1959 SC 896.


In English Law, Section 12 the Tribunal and Inquiries Act, 1971 (re enacted
Section 12 of the 1958 Act) requires the tribunals specified in the First Schedule
to state reasons for their decisions.
Siemens Engg. & Mfg. Co. of India Ltd. v. Union of India, AIR 1976 SC 1785.
Nagendra Nath Bora v. Commr. of Hills Divn., AIR 1958 SC 398 at 406.
R v. Mental Health Review Tribunal, (1986)1 All ER 99.
State of A.P. v. Venkat Rao, AIR 1975 SC 2151 at 2155.
f .
285

proceedings for judicial review. While a decision based on no


evidence, on an a misreading of material evidence or, a decision so
grossly unreasonable that no reasonable person could reach it
would be liable to set aside,125 judicial control for insufficiency of
evidence is not countenanced. It seems that error of law apparent
on the face of the record could not be invoked for this purpose.
The Supreme Court explained the substance of this rule in
State of Haryana v. Rattan Singh,126 In this case a bus conductor of
the Haryana Road Transport Corporation with Rattan Singh as
conductor was taken over by a flying squad. The Inspector found
eleven passengers without tickets though that they had paid money
for it. However, the Inspector did not record the statements of those
persons as required under the rules. After, the formality of inquiry,
the services of the conductor was terminated. All the courts upto the
High Court quashed the decision on the ground of insufficiency of
evidence and violation of rules of natural justice as none of the
eleven witnesses was examined and the Inspector did not record the
statements of witness as required by law. On appeal by the State,
the Supreme Court reversed the decision and held that the simple
point in the case was, was there some evidence or was there no
evidence not in the technical sense governing the regular court
proceedings but in a fair common sense way as a man of
understanding and wordly wisdom would accept. Viewed from this
angle sufficiency of evidence in proof of findings of a domestic
tribunal is beyond scrutiny. The evidence of the inspector is some
evidence.

125
Michael L. v. Jahnsons Pumps Ltd., AIR 1975 SC 661.
126
AIR 1977 SC 1512; See also J.P. Jain v. State Bank of India, AIR 1982 SC 673.
286

The end result of the decision is that if there is some evidence


in some corner of the record, the decision invalid though it may not
be any evidence at all in accordance with accepted norms of a
judicial decision. Nand Kishore Prasad v. State of Bihar,127
highlights the problem. In this case the appellant was a clerk in the
District Magistrate’s Office. He was prosecuted before a criminal
court for embezzling a certain amount, but was acquitted.
Therefore, disciplinary administrative proceedings were initiated
against him and the appellant was found guilty, and hence removed
from service. Upholding the decision of the administrative authority
in a writ proceeding, the Supreme Court held that this was not a
case of number evidence’ but of evidence which was inadequate to
carry a conviction in a criminal court. In disciplinary proceedings,
however, the order passed cannot be interfered with on the ground
that the evidence would be sufficient in a criminal trial. It is true this
‘no evidence' rule resulting in inadequate basis for action has not
earned any credibility for administrative justice.
This approach calls for comments. Insufficiency of evidence is
a question of law and not of fact. Thus, Lord Reid said in R.V.
Brixton Prison Governor, Ex part Armah128, “whether or not there is
evidence to support a particular decision is always a question of
law..."129 Therefore, if it appears from the record of the proceedings
that a particular decision cannot be supported by sufficient evidence
that would be a case of error of law apparent on the face of the
record appropriate for judicial review. Ameteep Machine Tools v.
State of Haryana;130 was such a case where it was accepted that a

AIR 1978 SC 1277.


(1968) AC 192.
Id. at. 234.
AIR 1980 SC 2135.
287

finding that a person was ill and could not have instigated or
participated in a strike on a particular day was one which proceeded
from the material on record. The Supreme Court characterised the
finding as one of fact and decline to interfere. A better approach
would have been to treat the issue as one of law and if the finding
lacked sufficient evidence the court ought to have intervened on the
ground of error of law apparent on the face of the record.
In England, courts do not disturb the findings >of fact by an
administrative authorities unless it is based on no evidence. Coleen
Properties Ltd. v. Minister of Housing and local Government131 is an
illustrative case on the point. In this case a first-class building was
included in a clearance order for undertaking a housing project. The
Housing Act, 1957 provided that a first class building cannot be so
included unless it is ‘reasonably necessary’ for the whole scheme.
The inspector who gave the hearing recommended the exclusion of
this building. The minister overruled the inspector’s, findings and
confirmed the clearance order. The court quashed the minister’s
order on the ground that there was no evidence of ‘necessity’ before
the minister. However, now a shift is visible in the approach of
courts in England from the ‘no-evidence’ rule to 'sufficient-
evidence/substantial-evidence’ rule. Their Lordships of the House of
Lords in R.V. Home Secy. Ex Parte Khwaja132 held that while
exercising a power of judicial review, court must see that there is
'sufficient evidehce’ on record and thus the ‘no-evidence rule’ was
not applied for review of administrative action.
In another way the objection of judges determining the
sufficiency of evidence in judicial control is a practical one and not a

131
(1971)1 WLR 1, 33
132
(1984)1 AC 74(HL)
288

jurisprudential one. This is that evidence in the normal run’of cases


which is not part of the record unless so incorporated by the tribunal
of its own volition. Without the requirement to maintain a complete
record of the tribunal proceedings it is not possible for the review
courts to determine the sufficiency of evidence. However, courts
give the impression that review ability of evidence is a matter of
substantive law rather than procedure.133
(iv) Meaning of ‘the record’:
The scope of the error of law apparent on the face of the
record as a ground of judicial control depends on the meaning
attached to the word 'record'. Thus, the question is whether the
‘record’ for this purpose ought to mean anything more than the order
or decision recorded. Lord Denning, L.J. in R. v. Northumberland
Comp. App. Tribunal134 in this regard said :
I think the record must contain at least the
document which initiates the proceedings, the
pleadings, if any and the adjudication, but not
the evidence, nor the reasons, unless the
tribunal chooses to incorporate them. It the
tribunal does state its reasons, and those
reasons are wrong in law, certiorari lies to quash
the decision,"
Denning L.J. Stated also;135
Notwithstanding the strictness of the rule that
the error of law must appear on the face of the
record, the parties could always by agreement
overcome this difficulty. If they both desired a
ruling of the court... on a point of law which had
been decided by the tribunal but which had not
been entered on the record, the parties could
agree that the question should be argued and
determined as if it were expressed in the order.

'Sufficiency of evidence is not for the court to decide' State of Haryana v. Rattan
Singh, AIR 1977 SC 1512.
(1952)1 All ER 122 at 131.
135
Ibid.
L

289

Denning L.J. further stated;136


“Affidavits were always admissible to show that
the record was incomplete as for instance that a
conviction omitted the evidence of one of the
witnesses... if it had been necessary, the court
could have ordered the record to be completed.”
Thus, additional material could form part of the record,
whether supplied on the order of the court137 or voluntarily as by
filing an affidavit138 or as a letter explaining the reasons for the
decision sometimes afterwards.139 In R v. Preston Supplementary
Benefit Appeal Tribunal, Ex parte Moore,140 Lord Denning MR
asserted, “The ‘record’ is generously interpreted so as to cover all
the documents in the case”, and in R. v. Crown court at
Knightsbridge, Ex parte International Sporting Club (London) Ltd.,141
held that the ‘record’ was not restricted to the formal order but
extended to the reasons given by the Judge in his oral judgment and
set out in the official transcript there. The argument that only if the
inferior court choose to embody its reasons in its order then they
become part of the record. Similarly, the ‘record’ includes any
document referred to in the impugned order or decision.
But in Indian law as it stands at present ‘record’ has a more
restricted meaning than it has in English law. It does not extend to
any documents other than the decision impugned in a given case, in
S.K. Dutt v. A.I. Jute Mills Co. Ltd.142 the single judge directed the
assessment records of the Clive Investment Trust Company Ltd. to
be produced before him and said that the record in that case "would

R v. Medical Appeal Tribunal Ex parte Glimore, (1957)1 QB 574 at 582.


R v. Southampton justices ex parte Green, (1976) QB 11 at 22.
R v. Supplementary Benefits Commission ex parte Singer, (1971)1 WLR 713.
(1975)2 All ER 807 at 810.
(1982) QB 304.
AIR 1957 Cal. 514.
290

include the record which has been called for including the
assessment order”. On appeal this definition of record was rejected
by Division Bench. Thus, it was held that if a court approached for a
writ of certiorari itself calls for records of other proceedings, although
those may be in some way connected with the proceeding before it,
such records cannot be said to be the ‘record’ for the purpose of a
writ of certiorari; and it was also held that an error appearing from
those subsidiary records called for by the court itself will not be an
error on the face of the record as contemplated by law relating to this
writ.
In Josedha Saha Ltd. v. S.K. Chatterjee,143 the order of the
Assistant Collector of Appraisement was attacked on the ground that
the provisions of Section 30 of the sea Customs Act 1878 had not
been followed in that no mention was to be found in the order of the
wholesale cash price or the trade discount, nor was there any
determination as to the wholesale cash price less trade discount for
which goods of the like kind and quality are sold or are capable of
being sold at the time and place of importation. It was held that, in
order to sustain those objections before the High Court, the
petitioner would have to take the court to the calculations and
computations made by the Assistant Collector of Appraisement,
which did not appear on the face of the order; and therefore it could
not be said that there was an error on the face of the proceedings. If
the court had to look beyond the order into other documents thus it
could not be called an error on the face of the proceedings.
However, in Rajendra Prasad v. State of Punjab,144 the Punjab High
Court, by a Full Bench decision broadened the meaning of 'record’

AIR 1961 Cal. 195.


AIR 1966 Punj. 185.
291

to include not only the reasons forming the basis of the order (the
impugned order had been made by the revenue authorities) but also
certain additional documents. In English Law even oral reasons are
counted as record. In R.V. Chestray145 a decision of justices was
quashed for error of law on the face of the record | when error
appeared only in the reasons given orally at the time of conviction.
But there does not seem to be any case in India to the effect that
oral reasons are counted as record and the cases already discussed
suggest the contrary law.
Thus, the future prospect of error of law on the face of the
record as a principle of judicial control will be determined by the
judicial policy the courts adopt. The courts presently seem to be
taking a restricted view in this respect. Sinha J., (as he then was)
speaking for the scope of error of law apparent on the face of the
record in Nagendra Nath Bora v. Commissioner of Hill Division146
observed :
“Certiorari... is not meant to take the place of
appeal where the statute does not confer a right
of appeal. Its purpose is only to determine on
an examination of the record, whether the -
inferior tribunal has exceeded its jurisdiction or
has not proceeded in accordance with the
essential requirements of law which it was
meant fo administer. Mere formal or technical
errors even though of law, will not be sufficient
to attract this extra ordinary jurisdiction”.147
The above observation of Sinha J. that certiorari is not meant
to take the place of an appeal where the statute does riot confer a
right of appeal only reflects a judicial policy of a narrower view of this
principle.

145
(1961)2 QB 152.
146
(1958) SCR 1240.
147
Id. at 1270.
292

The principle of error of law apparent on the face of the record


has been, to a large extent, denuded of its utility by review of
tribunal’s decisions” on a true interpretation of the statute.” By
granting review” on a true interpretation of statute”, the courts in
effect, exercise a power of statutory appeal on points of iaw which is
not necessarily confined to error of law apparent on the face of the
record. In spite of this development that the rule of error of law
apparent on the face of the record is likely to retain its utility, as it
provides a basis for review of no evidence, wrong evidence and
wrong conclusions from evidence.
The rule as to ‘judicial review on the limited ground of patent
error of law has been adopted in India from England. There was no
compulsive reason for the Indian courts to adopt this technical British
concept, as these courts were not obliged to follow the English law.
In England, the court’s jurisdiction to correct patent error has in the
past been of great importance. Today, however, it seems that its
importance is dwindling to the point , of obsolescence. Essentially
because, those errors which can be detected by a perusal of the
“record” will almost invariably be errors of law. But the courts now
have a very wide jurisdiction (whether by way of statutory appeal or
via the Anisminic characterization of error of law as jurisdictional) to
correct errors of law as such, i.e. irrespective of whether or not they
appear on the face of the record. If one may obtain review on the
basis of error of law simpliciter there will be no need to invoke a
jurisdiction which requires one to show not only error of law but also
that the error appears on the face of the record.
But will there not be cases where there is no right of appeal
and where the Anisminic presumption does not apply and where,
consequently, one who seeks review will need to invoke the patent
293

error jurisdiction? This seems unlikely. The Anisminic presumption


will, apparently, be rebutted only where Parliament has indicated
clearly that it is not to apply as for example, where Parliament has
expressly with drawn a right of appeal on point of law which would
otherwise have been available. The fact is though, that the
legislature is hardly likely to go to these lengths without taking steps
to exclude the patent error jurisdiction also - as it did in both
Pearlman148 and South East Asia Firebricks.149 It is unlikely then,
that the patent error jurisdiction will remain unimpaired by Parliament
in a case where the Anisminic presumption has been ousted. It
follows that if the anisminic presumption extends (unless rebutted) to
all authorities subject to supervisory jurisdiction it is unlikely that
there will be occasions where it will be strictly necessary for a
litigation to resort to the patent error jurisdiction. It would, however,
be premature at this time to assert categorically that the Anisminic
presumption is so wide ranging as to render the patent error
jurisdiction entirely obsolete. If an error of law does appear on the
face of the record it may be sensible to put one’s case in these terms
rather than to invite dispute on whether the anisminic presumption in
principle applies and, if so, whether it is rebutted.150 Nevertheless,
“the artificial distinction between patent and latent errors of law... is
^ very unsatisfactory”151 and a Queen’s Bench Divisional Court has
pronounced it “obsolete”152
As seen above, it is not always easy to distinguish between a
patent and a latent error. It would be much simpler if the courts
discard the distinction between latent and patent errors of law and

148 Pearlman v. Keepers of Harrow School (1979)Q. B. 56.


149 South East Asia Fire Bricks v. Non Metallic etc. union, (1981) A.C. 374.
150 In R. V. Knightsbridge Crown Court ex p. I. S.C. Ltd. (1981)3 W.L.R. 640.
151 Smith, Judicial Review of Administrative Review (1980) p. 139.
152 Per Golf L.J. in R.V. Greater Manchester Corner ex p Tal (1985) Q.B. 67 at 82.
294

become the final judge of all errors of law. As well be seen later, in
the case of review of discretionary powers, the courts have hardly
bothered to find whether error of law is manifest or not. They have
corrected all errors of law constituting abuse of discretion.153
However, following Queen Bench decision in England (mentioned
above) Indian Courts should also discard this artificial distinction
between latent and patent law. This will make the law of judicial
review simpler and both may be considered on the ground of excess
or abuse of jurisdiction Any way there is no compulsive reason for
Indian Courts to continue to old, and orthodox thinking in England.
Where the Queen Bench has also pronounced the distinction
between patent and latent law obsolete.154 The same proposition
should also be followed by Indian Courts.
If the distinction between errors committed within jurisdiction
and errors outside jurisdiction is abandoned a number of
consequences will ensue. First, as indicated above the court will
look at material outside the record to detect errors of law. Secondly,
judicial control would not be restricted to errors of law apparent on
the face of the record or an excess or refusal of jurisdiction but
would extend to any error of law committed within the jurisdiction of
a deciding body.155 If this line of reasoning is followed in- India it
could have far-reaching implications. As we will see, in Indian Law it
is far more difficult to establish errors of law apparent on the record
than simple errors of law. Thirdly the extent of protection afforded by
the ouster clauses’ appearing in statutory provisions for decisions
which turn out to be erroneous, ultra vires or intra vires could be
i

153 See S.N. Jain, Scope of Judicial Review to correct Errors of Law through
Mandamus and Certiorari, 6 J.l. L.l. 316(1964). Also infra Chapter VI.
154 Supra note 152
155 R. v. Registrar of Companies Ex. P. Central Bank of India, (1986)1 All ER
105(CA).
295

assimilated. Finally, where the court has a discretion to grant a


remedy it could decline to do so irrespective of whether the errors
goes to jurisdiction or not.156
3. Review of facts
(i) Review of Jurisdictional Fact. T
Following the distinction between questions ot fact and
questions of law, the English courts have refused to review decisions
of inferior tribunals based on conflicting evidence.157 Tne practice
became so firmly entrenched in judicial decisions as to reveal at one
time a tendency towards excluding review of facts even if they went
to jurisdiction. The courts have, however, succeeded in extricating
themselves from the influence of the above tendency and have
established their authority to review facts if they are collateral.158
Thus, there appeared an exception to the general unreviewability of
questions of fact. This is known in American law as ‘jurisdictional
fact’ and in English law as collateral fact.’ The doctrine of
jurisdictional fact,’ comments one author, ‘was the key notion out of
which in the seventeenth century the common system of judicial
review emerged and in terms of which it is finally crystallised159 In
an earliest statement in Bunbury v. Fuller,160 Coleridge J. stated the
doctrine as under1:
“...It is a general rule that no court of limited
jurisdiction can give itself jurisdiction by a wrong
decision on a point collateral to the merits of the
case upon which the limits to its jurisdiction
depends and however its decision may be final
on all particulars making up together that subject

R. v. Knightsbridge Crown Court Ex. P. Marcrest Ltd. (1933)1 All ER 1146.


A diction of Coleridge J. in Joseph v. Henry (1850) 196J (QB) 369.
R. v. Norfolk Ex p. Wayland union (1909)1 QB 463; R. v. Board of Control Ex p.
Rutty (1956)2 QB. 109.
159
Louis L.Jaffe, Judicial Control of Administrative Action (1965) p. 624.
160
Exch. 111, 140(1853).
296

which if true is within its jurisdiction and however


necessary in many cases it may be for it to
make a preliminary inquiry whether some
collateral matter be or be not within the limits,
yet upon preliminary question, its decision must
always be open to inquiry in superior court.”
Thus, lack of jurisdiction may also arise from absence of some
preliminary facts which must exist before a tribunal exercises its
jurisdiction. There are two types of facts : facts which an authority
has to determine to dispose of a dispute before it; and facts which
must exist before an authority could exercise jurisdiction in a matter.
The latter are known as "jurisdictional" or 'collateral" facts. The
existence of these facts is a sine quo non or a condition precedent to
the assumption of jurisdiction by a body over a dispute and to decide
it on merit. To put it simply, the fact or facts upon which an
administrative body’s power to act depends can be called
“jurisdictional facts”. If the jurisdictional facts does not exist, the
court or the tribunal cannot act. If an inferior court or a tribunal
wrongly assumes the existence of such a fact a writ of certiorari can
be issued. Thus, the underlying principle is that by erroneously
presuming such existence, cannot confer, upon itself jurisdiction
which is otherwise not vested in it under the law.161
However, in United States the courts have evolved a new rule
governing the review of findings of facts. A finding of fact by an
administrative agency is set aside if it is not supported, by
substantial evidence,162 a phrase that was defined by Chief Justice
Hughes as meaning ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’163 As a result of
the emergence of the 'substantial evidence’ rule the courts' power to

161
Raza Anand v, State of UP, AIR 1967 SC 1081.
162
Davis, Administrative Law Treatise, Ch. 29.
163
Consolidated Edison C. v. N.L. R.B. 305 us 197 (1938), 229..
297

review findings of facts is no longer limited to ‘jurisdictional facts’.


The main difference which marks it off from the English rules about
administrative findings is that it is not founded on any notion of
jurisdiction. Instead of allowing complete freedom within jurisdiction
and imposing complete control over what is ‘jurisdictional’, it
compromises by allowing a certain amount of latitude to all findings,
without asking whether they are ‘jurisdictional or not.
Despite the high tide of substantial-evidence rule, the doctrine
has continued to play its role in American administrative law and the
courts have resorted to trial de novo of ‘jurisdictional facts’. The
familiar problem of distinguishing between jurisdictional and non-
jurisdictional facts has experienced. Thus, in U.S. v. Ju Toy,164 the
U.S. Supreme Court refused to decide the issue whether the person
was a citizen or alien and held that as ‘the necessary result of the
power of congress to pass exclusion laws’, the person claiming the
right to enter the United States as a citizen was not entitled to trial de
novo as to citizenship. But in subsequent case, Ng. Ejlung Ho v.
White,165 involving the same facts and the same issue the US
Supreme Court treated the issue of citizenship as jurisdictional and
ordered trial de novo of the issue. Justice Brandies, speaking for the
unanimous court, observed, “jurisdiction in the executive to order
deportation exists only if the person arrested is an alien. The claim
of citizenship is thus a denial of an essential jurisdictional facts.
Crowell v. Benson,166 is celebrated case on jurisdictional fact,
in which the U.S. Supreme Court, dealing with an award made by
the compensation commission held that the question whether there
existed the relationship of master and servant was one of those

164
(1905) 198 US 253.
165
(1922) 259 US-276.
166
(1932) 285 US 22.
298

‘where the determinations of fact are fundamental or “jurisdictional”


in the sense that there is a condition precedent to the operation of
the statutory scheme’ Chief Justice, Hughes commented that, “if the
agency determination on this question were final, it would sap the
judicial power as it exists under the Federal constitution and.,
establish a Government of a bureaucratic character alien to our
system...."
The doctrine of ‘jurisdictional fact has, however, been ignored
by the courts in such a large number of cases’ apparently
‘jurisdictional that a leading author has been prompted to remark
that it is probably no longer the law.167 The doctrine has been
eclipsed by the predominance of the substantial evidence rule has
relegated the ‘jurisdictional fact’ doctrine to the bade ground. It is
now functus officio’168 and need only be carried, so to speak, as a
spare wheel.169
Indian courts have followed the English rather than the
American doctrine of review of facts. Thus, the doctrine of
'jurisdictional fact’ provides the main plank on which the superior
court’s power to examine the factual basis of administrative
determinations. The principle can be traced to some of the early
privy council decisions. In Gopal Chander Chatterjee v. Gonamani
Dass,170 a case decided in 1892, the Judicial committee held that a
notice under Section 248 of the Civil Procedure Code (to bring the
official assignee before the court) is necessary in order that the court
should obtain jurisdiction to sell property by way of execution as
against the legal representative of the deceased judgment debtor.

Davis, Administrative Law Trestise, Chap. 29.03.


Louis L. Jaffe, Judicial Control of Administrative Action (1965) p. 643-45.
HWR Wade, 82 LQR (1966), 226,237.
(1892) 20 C 370 cited in Raghunath Das v. Sunder Das, AIR 1954 PC 129.
299

Thus, the issuance of notice under the statute was essential for the
exercise of jurisdiction and the absence of such a notice deprived
the court of its jurisdiction.
The doctrine of 'jurisdictional fact’ was applied again in
Raghunath Das v. Sunder Das.171 There also the Judicial
Committee held, following its previous decision in Gopal’s case, that
a notice under Section 248 of the Civil Procedure Code is necessary
in order that the court shall obtain jurisdiction to sell property by way
of execution as against the legal representative of the deceased
judgement debtor. If the court gets the jurisdiction by service of
notice it has jurisdiction to sell the property in question, even though
its decision as to who is legal representative is erroneous. It was
held that in the instance case no proper notice was served under
Section 248 of the Civil Procedure Code 1882. However, in
Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa,3 a case
that came before the Privy council in 1900 involving the same facts
as in Gopal’s case it was held that, a notice under Section 248 of the
Civil Procedure Code, 1882 having been served, the court had
power to determine that for the purpose of the execution of
proceedings the party served with the notice was in fact the legal
representative.
These Privy Council decisions introduced into Indian law the
English doctrine of review of collateral facts. The courts have in the
post constitution era, asserted their authority to review facts on the
V)
existence of which the jurisdiction of a tribunal depends.1" Thus, it has
been held in Roshan Lai v. Ishwar Dass172 that absence of
jurisdiction may arise from the absence of some essential

171
Supra.
172
AIR 1962 SC 646; This was revision case but the doctrine stated is equally
applicable to review.
300

preliminary matters or of facts collateral to those forming the subject


matter of the tribunal’s enquiry, but whose existence is a condition
precedent to the assumption of jurisdiction. Thus, the place of
jurisdictional fact in judicial review is indeed of significant
importance. It affords a useful check on administrative excess.
A Statute may or may not give power to a body to determine
the judicial facts for itself. When no such power is conferred, judicial
review extends to consideration of the evidence by the court upon its
own independent judgement, as if it is in an appeal and to decide the
existence of jurisdictional facts. The reason for this approach is that
the jurisdiction of the body depends on a correct decision as to
jurisdictional facts and that be wrongly deciding a jurisdictional fact,
a body cannot give jurisdiction to itself which it does not possess
under the law.173
In Munni Devi v. Gokal Chand174 the relevant statute provided
powers to the district magistrate to allot a vacant shop. The Act
further provided that no order made by the District magistrate shall
be called in question in any court. It was held by the court that
whether a. shop is vacant or not is a jurisdictional fact which could
not be decided finally by the magistrate himself, and by reaching an
erroneous decision on this point, he could not clothe himself with a
jurisdiction which he did not possess. The order as to vacancy could
thus be challenged.
In State of M.P. v. D.K. Yadav175, under the relevant statute all
jagirs including lands, forests, trees, tanks, wells etc. were abolished
and vested in the State. However, all tanks, trees, private wells and
buildings on “occupied land" were excluded from the provisions of

173
Naresh v. State of Maharashtra, AIR 1967 SC 1.
174
AIR 1969(2) SCC 879.
175
AIR 1968 sC 1186.
301

the statute. If they stood on “unoccupied land” they stood vested in


the State. The Supreme Court held that the question whether the
tanks, and wells etc were on “occupied land” or on “unoccupied
land” was jurisdictional fact, and the High Court could determine this
jurisdictional question upon its independent judgement.
Similarly in Shauquin v. Desa Singh,176 the relevant statute
empowered the Chief settlement commissioner to cancel an
allotment of land if he was “satisfied” that the order of allotment was
obtained by means of "fraud, false representation or concealment of
any material fact.” The Supreme Court held that the satisfaction of
the statutory authority was a jurisdictional fact and the power can be
exercised only on the existence thereof.
The statute which empowers a tribunal to act may give it a
jurisdiction if a specified state of facts exists. In that case, if the
tribunal exercises the statutory jurisdiction in the absence of that
state of facts, it acts without jurisdiction. Sections 33 and 33-A of the
Industrial Disputes Act, 1947 provide that an Industrial tribunal may
take cognizance of an employee’s complaint that his employer has,
inter alia, altered the conditions of service, in regard to which there is
an industrial dispute pending before the tribunal and adjudicate upon
the complaint as though it were a dispute before it. It was held in
Bata Shoe Co. Ltd. v. Ali Hasan177 that the conditions laid down are
collateral ones on which the jurisdiction of the tribunal depends. In a
petition under Article 226 of the constitution the High Court is entitled
to determine upon its independent judgement whether the conditions
have been established. In Newspaper Ltd. v. State Industrial
tribunal,178 the Supreme Court stated the doctrine as follows.

176
AIR 1970 SC 672.
177
AIR 1956 Patna 518
178
AIR 1957 SC 532.
302

The jurisdiction of an Industrial Tribunal under


the Industrial Disputes Act, 1947 is independent
upon the dispute being an ‘industrial dispute’ as
defined in the Act. The Tribunal has to
determine, before exercising jurisdiction,
whether the dispute is an industrial dispute and
this finding is liable to be challenged in a
proceeding for certiorari or prohibition and where
the decision of the tribunal is wrong the
proceedings before it are liable to be quashed179
Thus, the principle of 'jurisdictional fact' operates as an
exception to the rule of unreviewability of facts. In Raza Textiles Ltd.
Rampur v. Income Tax Officer,180 the Income Tax Officer demanded
the payment of income tax from a company rejecting the contention
that it was a non-resident firm. It was argued before the court that
the Income tax Officer was the sole judge of whether the tax payer
ti
was a non-resident firm. The Supreme Court states the-proposition.
No authority, much less a quasi judicial
authority, can confer jurisdiction on itself by _
deciding a jurisdictional fact wrongly. The
question whether the jurisdictional fact has been
rightly decided or not is a question that is open
for examination by the High Court in an
application for writ of certiorari"181
A statute may, however, clearly authorise a body to decide the
jurisdictional fact for itself. For instance, under the Bombay Land
Requisition Act 1948, the government could requisition any premises
which is vacant. The Act specifically empowers the government to
make enquiries as to the vacancy and to make a declaration to that
effect, and makes its declaration to that effect, and makes its
declaration to the vacancy a conclusive evidence of the declaration
so made.182 In such a situation, the scope of judicial review is

Id. at 539.
AIR 1973 SC 1362.
Id. at 1363.
See LeelavatiV/s State of Bombay AIR 1957 SC 521.
303

restricted. The court can review jurisdictional fact only to the extent
to which it reviews ordinary facts this means that the basis for court’s
intervention will merely be the no legal evidence” rule.183
However, if an inferior court or a tribunal acts within the
jurisdiction vested in it, the writ of certiorari cannot be issued against
it. In Ebrahim Aboobakar v. custodian General,184 the Supreme
Court observed.
i,
“It is plain that such a writ cannot be granted to
quash the decision of an inferior court within its
jurisdiction on the ground that the decision is
wrong. Indeed, it must be shown before such a
writ is issued that the authority which passed the
order acted without jurisdiction or in excess-,,of
»185

Again, if the authority itself is given power to decide the


preliminary fact and it decides it wrongly, a writ of certiorari does not
lie. The order can be corrected only in appeal or revision, if it is
provided under the relevant statute.
It must, however, be remembered that the Legislature
vests the administrative body to decide question of jurisdiction only
in rare and exceptional cases. It is, therefore, the duty of the
judiciary to inquire as to whether a particular fact is jurisdictional or
not.
(a) Problem of distinction between jurisdictional facts and other
facts.
It is clear that the doctrine of jurisdictional facts is established,
in Indian law. What is not clear both in English law and in Indian law
is on what basis certain facts are classed apart as jurisdictional
facts. At times, the courts are found to contradict themselves in

183
Maharashtra v. Babulal, AIR 1967 SC 1353.
184
AIR 1952 SC 319.
185
Id. at p. 322.
304

such characterization. For instance a local authority in England may


make a clearance order, where they are satisfied that the houses in
that area are unfit for human habitation, and the order requires
confirmation by the minister. In one case,186 the court treated the
meaning of ‘house’ as a jurisdictional condition. But in subsequent
case,187 the court, held that the question whether a property was a
house or not just like the question whether it was fit or unfit for
human habitation was for the minister to decide finally. In other
words the questions were non-jurisdictional.
This justifies the discussion that follows how to distinguish
‘jurisdictional facts’ from 'other facts’ a distinction that determines the
reviewability of a question.
(b) Test to discern the distinction.
There have been various attempts by the commentators to
find a satisfactory test to discern the distinction between reviewable
jurisdictional facts and unreviewable non-jurisdictional facts. Thus,
Professor Jaffe expresses the view that jurisdictional matters are the
matters on which the legislature’s attention is focused' and that the
word ‘jurisdiction’ expresses the gravity of the error.188 But the
matters on which legislature focused its attention are assigned to the
machinery created under the respective statutes and they could
hardly be called jurisdictional matters. If the superior court are to
adjudicate upon these issues the jurisdiction cannot be any less than
appellate. As to the test of the ‘gravity of error’ it is more likely to
result from the wrong decision on the merit of the case than from the
jurisdictional error. Thus an erroneous cancellation of a licence by

Re But (1939)1 KB 5703.


Ashbridge Investment Ltd. v. Minister of Housing & Local Government (1965)1
WLR 1320.
188
Jaffe, Judicial control of Administrative Action (1965) pp. 631-633.
305

the authority can lead to the loss of a man’s livelihood. Therefore,


the conclusion is inescapable that the tests formulated by Jaffe fail
to provide a satisfactory basis to draw distinction between
jurisdictional and non-jurisdictional matter.
Dr. Rubinstein189 also seeks to formulate a test in the following
terms; Matters which are essentially the crux of the adjudication are
to be placed within jurisdiction. He cites a few instances such as
whether a person is guilty, entitled to a certain benefit, or liable to
pay a certain duty. It may be at once pointed out that this test, even
if accepted by the courts, does not effect any improvement upon the
present state of law, because the element of indefiniteness and
arbitrariness which characterizes the present law. In each case it
will depend on the view the reviewing court takes as to ‘yvhat matters
are essentially the crux of the adjudication’ just as in each case it is
for the court to decide what matters are ‘jurisdictional’.
Lord Esher, M.R. formulated in R. v. Commissioner for special
Purposes of the Income Tax,190 the test to drew distinction between
two kinds of enabling powers, one by which ‘an inferior court or
tribunal or body’ is empowered to adjudicate only if certain facts exist
but by which it is open to further question by a higher court as to
whether those facts are established; the other by which the tribunal
is empowered to delimit its own jurisdiction by determining, without
possibility of challenge, the prerequisite facts themselves. C.K. Allen
has described this test as “statutory enabling powers”.191 The
English Courts have applied lord Esher’s test in many cases and
uphold administrative determinations, holding them to be final, e.g.
the decision of a reinstatement tribunal that a claimant is an

189
Rubinstein Amnon, Jurisdiction and Illegality, (1965} p. 213.
190
(1888)21 QB 313, 319.
191
Sir C.K. Allen,, Law and orders (1965) p. 267.
306

employee,192 the refusal of the local authority to grant


superannuation to a person on the ground that he is not an
employee,193 the determination by the council of architects as to
whether a person is eligible for registration as an architect194 etc. In
attaching finality to the determinations of the administrative bodies in
these cases the courts were guided by Lord Esher’s test of statutory
enabling powers’. Decisions which were upheld were held to be of
the second type mentioned by Lord Esher M.R. on the other hand,
the doctrine of ‘jurisdictional fact’ was applied where the tribunal was
held to be of Esher's first type. Thus, in R. v. City of London Rent
Tribunal, ex parte Housing195 it was held that a rent tribunal’s
jurisdiction to reduce rent is contingent on the existence of tendency,
which is a fact collateral to the question specifically assigned to its
jurisdiction, namely the fixing of a reasonable rent. Parkar J said
that rent tribunals are rather of the first type mentioned by Lord
Esher.
Indian court, in a large number of cases, have similarly
withdrawn from review following the dictum of Lord Esher. Thus,
where the statute196 provides for eviction of a tenant on certain
grounds including non-payment of rent by the Rent Controller the
Supreme Court held that the case falls under the second category of
Lord Esher and the statute confers upon the controller final
jurisdiction to determine preliminarily question whether there has
been non-payment of rent as well as that final question of eviction,

R. v. Ludlow, Ex. P. Barnsley Corpn. (1947)1 QB 634.


Wilkinson v. barking corpn. (1948)11 B 721.
R v. Architects' Registration Tribunal, Ex p Jagga, (1945)2 All ER 131.
(1951)1 KB 641.
Bihar Building House (rent and eviction) control Act (III of 1947).
307

so that the decision cannot be challenged on the ground that the


preliminary question has been wrongly decided.197
This shows, the elusiveness of Lord Esher’s test of
jurisdictional fact. While the Rent tribunals are regarded by the
English courts as those of the second type. In Ebrahim Aboo Baker
v. Custodian General of Evacuee property,198 the custodian General
on appeal certain evacuee property on the basis that the appeal was
competent, that a certain person had locus standi to appeal, and that
the appeal was against the first order of the additional custodian
(there being two orders in existence). It was contended that the
Custodian General could not give himself jurisdiction by a wrong
decision on a point collateral to the subject matter on which his
jurisdiction depended but the Supreme Court held that’the Act gave
the Custodian General jurisdiction not limited by the existence of any
particular state of facts a power to determine appeal as well as the
preliminary issues such as whether an appeal was competent,
whether a person had locus standi to appeal, and whether an appeal
was in substance from one order or another.
Section 63-A of the Motor Vehicle Act, 1939 provides that:
The state government may of its own motion or
on application made to it, call for records of any _
order passed or proceedings taken under this
chapter by any authority or officer subordinate to
it for the purpose of satisfying itself as to. the
legality or propriety of such order or proceedings
and after examining such records may pass
such order in reference thereto as it thinks fit.;
In Raman & Raman v. State of Madras,199 the Supreme Court
held that the State Government was to decide issue as to whether

Brij Raj v. Sham & Co. (1951)2 SCR 145.


AIR 1952 SC 319.
AIR 1956 SC 463.
308

any order was illegal, irregular, or improper and then to pass such
order as it thinks fit. Hence, it would not be open to a court
exercising the power of review to interfere merely, because it might
be of opinion that the view taken by state Govt, as to impropriety of
the order was erroneous.
Finality of determination has also been sometimes deduced
from such expression as ‘conclusive evidence’. Thus, Section 5 of
Bombay Land Requisition Act (Act of 1948) which empowers the
State Govt, to requisition premises which have remained vacant for
a specified period, provides that the declaration of such vacancy by
the state government, after such inquiry as it deems fit shall be the
conclusive evidence of the fact of the vacancy. The Supreme Court
held in Leelavati v. State of Bombay200 that the finding of the State
Govt, on the question could not be challenged in review because the
legislature had conferred the final power upon the Government to
determine this question. Similarly, where the findings of a fact is left
to the subjective satisfaction of the administrative authority, the court
may not interfere with factual determination.201
The Indian courts have borrowed the dictum of Lord Esher,
M.R. from English Law and applied it in order to ascertain whether
any given facts are jurisdictional. It is, however, difficult to found
Lord Esher’s test on any logical basis. The test reveals a restricted
view of collateral facts. It suffers from logical inconsistency and
inherent dangers of granting absolute immunity to the inferior
jurisdiction. The distinction drawn by Lord Esher is not, therefore
workable in practice as the preliminary intent with regard to review of
jurisdiction is rarely, if ever clearly manifested.

AIR 1957 SC 521.


Hubli Electricity Co. v. State of Bombay, AIR 1949 PC 136.
309

There are two difficulties involved in “jurisdictional fact”. One,


whether a particular fact is jurisdictional or not. Two, whether the
statute gives power to the concerned authority conclusively to
decide the jurisdictional fact. Pointing out the .difficulty “in
formulating an exhaustive rule to tell when there is lack of power and
when there is an erroneous exercise of it”,202 the Supreme Court
has said that ultimately the matter is one of public policy rather than
of logic. Viewed from the aspect of public policy as reflected in the
provisions of the statute concerned, the court held in the instant
case that a wrong decision on a question of ordinary residence for
the purpose of entering a person’s name in the electoral roll should
not be treated as a jurisdictional error. The court stated that the
statute in question had entrusted to an authority, other than a court
or a tribunal trying an election petition the exclusive power to decide
the matter finally.
Ultimately, it is for the courts themselves to determine whether
a statute confers jurisdiction on an authority to determine collateral
facts and whether the courts would exercise broader or narrower
powers of judicial review over such facts. There is now a tendency
to abandon the distinction between “jurisdictional facts” and other
facts which go to the merits. The reason is that there is no logical
test to draw such distinction. The courts tend to treat all facts as
non-jurisdictional. In U.S.A. as we have already discussed, the
courts have evolved 'substantial evidence’ rule and the powers of
the court to review of facts is no longer limited to ‘jurisdictional fact’.
There, by and large such distinction has been abandoned and there
is only one category of facts in USA viz. non-jurisdictional.203

202
H. M. Trivedi v. V.B. Raju, AIR 1975 SC 2802.
203
Schwartz., Administrative Law (1976) p. 634-38.
310

(ii) Review of other facts :


The idea of review of facts other than jurisdictional facts has
been least acceptable to the judges. They refuse to exercise judicial
control where it involves reviewing sufficiency of evidence.204
Similarly, a right to quash for excess of jurisdiction does not extend
to circumstances where the decision is against the weight of the
evidence.205 While in the sphere of questions of law the courts have
shown very little hesitation to extend the doctrine of ultra-vires, they
have demonstrated a consistent opposition to do the same in the
realm of question of fact.
In reviewing facts the courts have refused to review decisions
in appreciation of documentary evidence and conflicting evidence
and have consistently refused to weigh the evidence ‘before the
inferior jurisdiction.’206 Thus, where the Deputy Custodian-General
took into account all the reports, proposals and orders appearing on
the record and came to the conclusion that an order of cancellation
of allotment must have been passed on a certain date, though the
order did not appear on the record, the decision was upheld in
Kaushalya Devi v. Bachittar singh207. Similarly, in state of Orissa v.
Murlidhar,208 where the High Court purported to re-appreciate the
evidence recorded by a competent tribunal for itself under Article
226 of the constitution, the decision of the High Court was reversed
by the Supreme Court. The Supreme Court held that reappreciation
of evidence is outside the jurisdiction of the High Court in writ
proceedings. In Syed Yakoob v. Radhakrishnan,209 t?he facts were

204
R v. Galway justices (1906) 2 IR 446.
205
Griffith and Streat, Principles of Administrative Law (1967) p. 23.
206
Kaushalya v. Bachittar Singh, AIR 1960 SC 1168, State of Orissa v. Murlidhar,
AIR 1963 SC 404; Sales Tax Officer v. Shiv Rattan, AIR 1966 SC 146.
207
Supra.
208
Supra.
209
AIR 1964 SC 477.
311

as follows: In dealing with the rival claims of A and B for stage


carriage permits on certain routes, the Transport Authority and
Transport Appellate tribunal were mainly influenced by the fact that
A had a workshop at one terminus of the route in question, whereas
B had a workshop and place of business only at an intermediate
station of the route and did not possess a workshop at either of the
terminus of the route and hence issued the permit to A. B in moving
the High Court for a writ of certiorari urged that in coming to the
conclusion that he had no workshop at the terminus, the Appellate
Tribunal had failed to consider material evidence adduced by him A
writ was issued by High Court in favour of B. On Appeal, it was held
by the Supreme Court (majority view) that the question whether B
had a workshop at a terminus of the route was a pure question of
fact and the High Court had no jurisdiction to interfere with the
finding of the tribunal and correct it by certiorari.
It is a general rule that even court of appeal should not
appreciate evidence and interfere with findings of facts by trial
courts. The Supreme Court has discouraged such interference by
the High Courts. Unless the reason given by the trial court were
moonshine, flimsy or irrational, they could not be rejected.210 This
principle is also applicable to judicial review of administrative
actions.
The writ jurisdiction is supervisory in nature, thus a court
exercising the same is not act as an appellate authority, and it would
not ordinarily review findings of facts by tribunals,211 for if it were do
so, these authorities would become merely transmitting agencies of
evidence to the court and much of the advantage of administrative

210
M. M. Amonkar v. S.A. Johir, AIR 1984 SC 931.
211
Custodian of Evacuee Property v. Khan Chand, AIR 1961 SC 1087.
312

adjudication will be lost.212 In State of A.P. v. Rama Rao,213 it was


held by the Supreme Court that a High Court in a proceeding under
Article 226 of the constitution was not constituted a court of Appeal
over the decision of the authority holding a departmental enquiry
against a public servant, and in Sales tax Officer v. M/s Shiv
Ratan214 the Supreme held that if assessing authority acting under a
taxing statute wrongly determined facts, its findings could be
corrected by the Appellate authority. The High Court does not enter
into the question in the exercise of its writ jurisdiction. Error of facts,
thus, however, grave cannot be corrected by a writ of certiorari.215
The most important , limitation on judicial review of
administrative tribunals and quasi-judicial bodies is that the courts do
not interfere with an administrative body's determination of facts
except when its conclusion is not supported by any evidence at all.
Findings of facts reached by an inferior court or tribunal as a result of
the appreciation of evidence cannot be re-opened or questioned in
its writ proceedings. In State of A.P. v. Venkata Rao7216 the
Supreme Court has observed that the tribunal is the judge of the
facts and if there is some legal evidence to support the findings, ‘the
adequacy or reliability of which cannot be permitted to be canvassed
before the High Court in any writ petition. The Gauhati High Court in
M/s Pakaria Min Samabai Smiti v. State of Assam N& 35,217 has
observed that in the case of administrative action, there cannot be
reappraisal of facts while exercising power of judicial review. Thus,

See Jain M.P. & S.N., Principles of administrative Law (1997) p. 541.
AIR 1963 SC 1723; See also State of Haryana, v. Rattan Singh, AIR 1977 SC
1512; Sudhoo v. M/S Hajilal Mohd. Biri Works, AIR 1990 SC 1971,
AIR 1966 SC 142.
Jagdish Prasad v. Angoori Devi AIR 1984 SC 1447; See also Brijender Nath
Bhargava v. Harish Wadhwan, (1988)1 SCC 454.
AIR 1975 SC 2151 at 2155.
AIR 1997 Gau. 125.

)
normally, court will not interfere with findings of facts unless the
judgement is perverse.218 In a recent case Mohan Amba Prasad
Agnihotri v. Bhaskar Balwant Aher,219 the Supreme Court has held
that the court cannot interfere with a findings of fact recorded by a
tribunal unless there is no evidence to support the findings or the
finding is perversed.
(a) No evidence :
Although the courts have generally refused to review facts
other than collateral facts, absence of evidence has always been
recognised as sufficient justification for interfering with the finding of
facts even when they are within the jurisdiction of the tribunal. But
as explained earlier, error of law was not recognised as a principle of
judicial control in early Indian law. As a result no evidence was held
to constitute jurisdictional defect. The earliest case in which this
principle was affirmed seems to be R. v. Bhimraj Marwarry220 where
a man was convicted under the Stat. 9 Geo.JVC. 74, Section 75 for
having some counterfeit coins in his possession without lawful
excuse. On a motion for certiorari the conviction was attacked one
of the grounds being that there was no evidence that the coins were
counterfeit. Though it was held on facts that the magistrate had
evidence before him to support the conviction. Wellis J. observed
(obiter) that had the magistrate acted without evidence he would
have been acting without jurisdiction. In Sankarayana v. Miran
Sahib,221 the Election Commissioner decided that the result of an
election was affected by the refraining of the first respondent from
standing as a candidate. It was held that as there was no evidence

Bhura Dula Mall v. Basantibai, AIR 1994 SC 1243; Dhondiram v. Ramchandra,


(1994) 3 SCC 355.
219
AIR 2000 SC 931.
220
(1859)3 Indian Decisions 458.
221
(1934) ILR 57 Mad. 582.
314

as to the intention on the part of the respondent to stand as a


candidate, the election commissioner had no jurisdiction to arrive at
that decision and it was liable to be quashed. In Vedachala v.
C.R.T. Board,222 an order of the Provincial Government was
quashed on certiorari as having been passed without jurisdiction,
one of the ground being that the order was not justified on facts
contained in the proceedings while in English law no evidence was
treated as an error of law apparent on the face of the record, in
Indian law it was held to go to jurisdiction.
This position continued to prevail even after the adoption of
republican constitution. Thus, in Ram Niranjan v. Addl District
Magistrate223 although section 3 of U.P. Land Utilization Act (V of
1948) required a notice to the landlord, an ex parte order of
allotment was made without a proper notice, as required under the
statute, having been served. It was held that the finding that the
landlord had been served with notice was based on evidence which
was not admissible in law. The ex parte order passed was held to
be without jurisdiction.
Basappa v. Nagappa224 in which the Supreme Court seems to
suggest that absence of evidence constitutes error of law apparent
on the face of the record. In subsequent cases, however, it was
definitely laid down that a finding based on no evidence suffers from
error of law apparent on the face of the record. The earliest decided
case in which no-evidence was held to be error of law is Gulam
Mohiuddin v. State of West Bengal,225 a case before the Calcutta
High Court where the petitioner was suspended for alleged

AIR 1948 Mad 454.


AIR 1952 All 822.
AIR 1954 SC 440.
AIR 1964 Cal. 503.
315

misconduct. One of the charges was that he was ‘seen moving


about with women of ill fame and questionable character keeping
company with bad elements and thus leading a life unbecoming of a
Government servant.’ The evidence in support of his ‘leading a life
unbecoming of a Government servant’ was that 'he drinks’ and did
so in a hotel where 'drinks were supposed to be surreptitiously
served’. The evidence of his mixing with women of ’questionable
character’ was that he was found in a hotel with two girls who were
receptionists who also used to drink and sometimes accept offers of
drinks from customers’.
The order of suspension was quashed as being based on no
evidence. It was observed in this case that, in order to hold a
person guilty on circumstantial evidence, the circumstances or the
circumstance must be such as would irresistible lead to an
interference of guilt of the person charged with the offence. Thus
where a disciplinary action has been taken against a public servant
and the inference of guilt drawn by the tribunal from circumstances is
not an irresistible one, then there is an error of law which may be
rectified by a writ. In Rajendra Prasad v. State of Punjab,226 the
Punjab High Court held that, although the High Court cannot
interfere in a writ petition with an error of fact, it can correct a finding
of facts based on no evidence, as that would be an error of law. The
High Court set aside as being based on no evidence, the finding of
fact by the Revenue Authorities that the petitioner had been in self-
cultivation of certain field numbers on the date of the
commencement'of the relevant Act.

226
AIR 1966 Punj. 185.
316

In union of India v. H.C. Goei,227 where a public servant was


dismissed for having allegedly attempted to offer a bribe to the
deputy director so that the latter might support his representation
regarding his seniority to the Union Public Service Commission, the
Supreme Court upheld the decision of the High Court quashing the
order on the ground that it was not supported by any evidence at all.
The court did not say whether it was a case of error of law. In
Kaushalya Devi v. Bachittar Singh228 however, the Supreme Court
said (obiter) that a finding based on no evidence is an error of law
apparent on the face of the record. Again, in H.S. and I.E. Board of
U.P. v. Bagleshwar,229 the Supreme Court held (obiter) that an order
passed by a tribunal holding a quasi-judicial inquiry which is based
on no evidence is an order erroneous on the face and such order is
liable to be quashed by the High Court under Article 226 of the
constitution.
The Supreme Court has repeatedly stated that absence of
evidence is a ground for judicial intervention. However, we consider,
whether the ‘no evidence rule’ ought to be founded on the ultra vires
principle, error of law apparent on the face of the record (i.e. error
intra-vires) or on the principles of natural justice. The courts have
held that a finding is perverse when it is based on no evidence,230 or
is based on conjunctures231; or on a material point.232 In
Achutananda Baidya v. Prafulla Kumar,233 it was held that if
evidence on record in respect of a question of fact is not taken into

227 AIR 1964 SC 364.


228 AIR 1960 SC 1168.
229 AIR 1966 SC 875.
230 Prem Chand v. State of Punjab, AIR 1971 P & H 50; Shardaben v. Pandya, AIR
1971 Guj. 151; Cromption v. Workmen, AIR 1959 SC 1089; Union of India v.
H.C. Goel, AIR 1964 SC 364.
231 State of West Bengal v. Atul, (1991) Suppl. 1 SCC 414 para 11.
232 R v. Birmingham compensation tribunal, 91952)2 All ER 100.
233 AIR 1997 SC 2077.
317

consideration at all and without reference to such evidence, the


finding of facts by tribunal must be held to be perverse. This
suggests that the rule is associated with the ultra vires principle.
However, the courts have usually used the words ‘perverse findings
of facts’ and error of law apparent on the face of the record’ (i.e.
error intra-vires) interchangeably.234
It may be submitted that the ‘no evidence rule’ ought to be
based on the ultra-vires principle (i.e. lack of jurisdiction) rather than
error of law apparent on the face of the record. The reason for this
is as follows; Article 32 which confers a fundamental right to move
the Supreme Court for the enforcement of the Fundamental Rights
guaranteed by part III of the constitution is an important jurisdiction
of judicial control. However, in Ujjaim Bai v. State of UP, the
Supreme Court ruled that errors of law or fact intra vires could not be
impugned under Article 32. Consequently errors of law.apparent on
the face of the record as a ground of review under Article 32 is ruled
out. If the ‘no evidence’ rule is founded on error of law apparent on
the face of the record this too would be unreviewable for review
under Article 32. This would be an unfortunate limitation on the
applicability of the rule of no evidence. The position would also be
anomalous in that while in review proceedings under Article 226 the
High Courts could apply the no evidence rule for the protection of
fundamental rights (as well as other rights) the Supreme Court could
not do so in review jurisdiction under Article 32 of the constitution.
(b) Wrong Grounds and Insufficient Grounds
The courts are prepared to review not only on grounds of no
evidence but also on those of wrong evidence. Thus, in Syed
Yakoob v. Radha Krishnan, a case already noted, the supreme

234
Sathe S.P. Administrative Law, (1984) p. 246.
318

Court observed (obiter) that the superior court will intervene where a
tribunal has acted on no evidence or has refused to admit
admissible evidence or has admitted inadmissible evidence. These
were held to be the cases of error of law apparent on the face of the
record. But the court declined review in the instant case on the
ground that insufficiency of evidence adduced to sustain the finding
does not constitute an error of law apparent on the face of the
record. This position has been maintained by the Supreme Court in
a number of cases.235 This is in contrast with the development in
English law that insufficiency of evidence to sustain a finding raises
an error of law which the reviewing court will correct, if it can find the
error.236
(c) Recent Trends
The courts are seeking to override the deep-seated prejudice
against review of facts in a number of ways. Thus, although they
have said that they are not prepared in review to correct errors in
‘appreciation’ of documentary evidence and in drawing inferences,237
yet they do not hesitate to draw their own conclusions of facts from
the record and documents, as opposed to those of the relevant
authorities. Thus, in Carl still N.B.H. v. State of Bihar,238 the Sales
Tax authorities sought to tax the materials supplied in the execution
of a contract on the ground that such supply was a sale. The liability
to tax depended on pure works contract. The Patna High Court
dismissed the petition challenging the proceedings, holding that the
facts on which the issue depended had not been ascertained. But
the Supreme Court, by a majority opinion, allowed the appeal and

State of Madras v. G. Sundram, AIR 1965 SC 1103; State of Oris.sa v. Murlidhar,


AIR 1963 SC 404; State of AP v. Rama Rao, AIR 1963 SC 1723./
236
Armah v. Govt, of Ghana, (1966)3 All ER 177.
237
Nagendra Nath Bora v. Commr. of Hills Divn. AIR 1958 SC 398.
238
AIR 1961 SC 1615.
319

held that on a true construction of the agreement in question it was a


contract entire and indivisible for the construction of specified work
for a lump sum and not a contract of sale of materials as such.
Thus, the Supreme Court relied on documentary evidence, i.e. the
deed of agreement, for its conclusions.
The courts have also claimed their authority to interfere with
the finding of fact which is erroneous or contrary to the record and to
decide questions on materials placed before them. In P. T. Services
v. State Industrial Court239 where the Labour commissioner (while
dealing with the dismissal of an employee by the management)
concluded from the absence of signature of the Inquiry officer on the
paper that no inquiry had been held by the management, the
Supreme Court held that no reasonable judge of facts could come to
this conclusion. This was held to be a case of error of law apparent
on the face of the record. This shows that the courts have
imperceptibly begun to review questions of fact whenever they can
be so reviewed on the materials on the record available to them.
Secondly, the courts have asserted their right to examine the
factual basis of administrative action on the authority of the principle
of natural justice. Thus, on a writ petition240 challenging the order of
the Minister made under Section 68-D27 of the Motor Vehicle Act,
1939, the High Court, on the affidavit evidence, came to the
conclusion that the Minister was incompetent to deal with the matter
on the grounds of his personal bias and therefore the order should
be set aside, on appeal the supreme Court upheld the decision of
the High Court. The judgement of the Supreme Court throws some

239
AIR 1963 SC 114.
240
A.P.S. R.T. Corpn. v. Satyanarayana Transport, AIR 1965 SC 1303.
320

light on the extent of the reviewing courts power to appreciate


affidavit evidence.
Finally, in cases involving the complaints of breach of
Fundamental Rights,241 and various heads of general ultra vires (e.g.
malafide), the courts have asserted their authority to resort to cross
examination of the parties and their witnesses to ascertain the
factual basis of the complaints in review. Thus, they have said that,
where it is not possible for the court to arrive at a definite conclusion
because of the existence of allegations and counter allegations
contained in affidavits filed by the parties, it would be not only
desirable but in the interest of justice for it to be the duty of the court
to summon a party for cross-examination in order to arrive at the
truth.
Thus, the courts have contrary to the general policy of
unreviewability of questions of fact, undertaken to inquire into the
probative value of evidence in review.
Thus, from the foregoing analysis it is obvious that the scope
of judicial review is much broader in question of law than in question
of fact. The courts intervene with findings of fact only in exceptional
circumstances. The distinction between questions of law and fact is,
therefore crucial as the scope of judicial review depends on this.
How to distinguish between the two? Take the question whether or
not there is an Industrial Dispute under the Industrial Dispute act,
1947. It has been held that an industrial dispute is notjan individual
dispute but one which is supported by a substantial number of the
workmen. How many workers are supporting the dispute is a
question of fact but whether this number is sufficient to bring the
dispute within the meaning of an industrial dispute is a question of

241
K.K. Kochuni v. State of Madras, AIR 1959 SC 725.
321

law. A dispute may involve only a question of law, or only a question


of fact, or may involve both when it is characterised as a mixed
question of fact and law. Davis points out that when the dispute is
about what happened or the conditions or circumstances or motives,
it would be a question of fact: when the dispute has to do with the
>

meaning to be assigned to a legal concept or a refinement of that


meaning in the light of the particular facts it would be a question of
law.242 Jaffe also speaks in the same vein when he says; “A finding
of fact is the assertion that a phenomenon has happened or is or will
be happening independent of or anterior to any assertion as to its
legal effect. It can, for example, be made by a person who is
ignorant of the applicable law.”243
In Meenakshi Mills Ltd. v. C.l.T.,244 the appellant had made
sales and purchases through various companies to avoid Income
Tax. It was held by the income tax tribunal that intermediaries were
appellant’s dummies and benamidars and that the sales standing in
their names were fictitious and sham. It was argued before the court
that inferences drawn from the facts established were question of
law. Here, the question was whether an inference drawn from facts
was a question of law or fact? It was held by the court that the
conclusion that the intermediaries were benamidars was a matter of
inference various primary basic facts, such as, who paid the
consideration, who was in enjoyment of properties and the like and
no application of any legal principle was involved to determine the
question of benami transactions. An inference from facts would be a
question of fact or of law according as the point for determination is

IV Administrative Law Treaties (1958) p. 190 Quoted by Jain MR & SN., Principle
of Administrative Law (1997) p. 544.
Judicial Review : Question of Law 69 Hav. L.R. 239-241(1955-6). Quoted by
Jain & Jain, Ibid.
244
AIR 1957 SC 49,
322

one of pure fact or mixed question of law and fact. The conclusions
of the court in Meenakshi Mills case were :
1. When the point for determination is a pure question of law, such
as construction of a statute or of title, it will be a question of law.
2. When the point for determination is a mixed question of law and
fact, the findings on facts found will be a question of fact, the
legal effect of the findings will be a question of law.
3. When the finding is one of fact, the fact that it is itself an
inference from other basic facts will not alter its character as one
of fact.
It is not always that inferences from facts are to be considered
question of fact. When it is to be determined whether certain facts
come within the statutory standard, it will be a mixed question of fact
and law and inferences drawn from those facts will be a question of
law. In K.C. Thapar v. C.l.T.245 the question was whether
compensation received by the assessee for termination of one of its
managing agencies was income or capital receipt. Within the
meaning of the Income Tax Act, 1922. It was held that the question
whether a receipt was capital or income was a mixed question of law
and fact and the conclusion about the ultimate nature of the receipt
drawn from the facts was a question of law.
(d) ‘Substantial Evidence’ Rule
As regards the scope of judicial review of facts it will appear
that “no evidence” rule is very restrictive and leaves little
manocurability to the courts in the matter. The rule has been
adopted in India from England. The United States, on the other
hand follows the more broad-based rule of “substantial evidence”.

245
AIR 1971 SC 1590.
The U.S. Supreme Court in consolidated Edison Co. v. NLRB,246 has
explained that “substantial evidence is more than scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”. Schwartz States." Substantial
evidence is such evidence as might lead a reasonable man to make
a finding. The evidence in support of a fact finding is substantial
when from it an inference of the existence of the fact may be drawn
reasonably. In such a case, the reviewing court must uphold the
finding, even if it would have drawn a contrary inference from the
evidence”.247 The substantial evidence is thus a test of the
reasonableness, not of the rightness, of administrative findings of
facts.
The courts continue to maintain that correction of wrong
findings of fact is a matter for the appellate authorities and not for
the review court. However, in view of the fact that no evidence rule
is now firmly established for judicial control of administrative action,
the question as to whether the courts ought to adopt the American
doctrine of “substantial evidence” deserves consideration. This
would permit the review courts to weigh up the evidence irrespective
of whether facts are jurisdictional. It can be argued that the
adoption of the substantial evidence rule would be the logical step
from the “no evidence” principle. Secondly where important rights of
the individuals are at stake the distinction between review and
appeal could be dispensed with. Against this approach it might be
argued that the substantial evidence rule is used in United States in
the context of highly formalised administrative procedures and this
may not be suitable in far less formal systems used by most

246
(1938) 305 U.S. 197, at 229.
247
Administrative Law (1976) p. 595.
324
"\r

administrative bodies and tribunal in India. Furthermore, it might not


be desirable to turn a summary procedure of judicial review into
ordinary trial process with the result that the advantage of such a
summary procedure would be lost. Substantial evidence rule also
presupposes a legal requirement to maintains a record of
proceedings by the tribunals and administrative authorities.
Notwithstanding these arguments there is a case for the
introduction of the substantial evidence principle selectively in the
sphere of important individual rights. As far as the Indian
Constitution is concerned two such areas have been marked out.
i

These are the spheres of personal liberty and the freedoms


guaranteed by Article 19 of the constitution. Lastly, there is nothing
which stands in the way of the Indian courts opting for the American
rule. If substantial evidence” rule is substituted for the “no evidence”
rule, it would enable the courts to have more effective supervision on
administrative bodies than what they exercise to day and this would
be more in accord with the enlightened democratic thinking of the
present era.
4. Procedural Impropriety. '
An administrative action or decision may be challenged on the
ground of procedural irregularity or unfairness. In such cases a
public authority is alleged to have breached a statutory duty to
observe particular requirements of form or procedure - e.g. that it
should proceed within a certain time; with notice to particular
persons, giving particular persons the opportunity to state their
cases; and giving reasons for its decision etc. we begin (section A)
with cases of failure to observe procedural requirements expressly
prescribed by statute. In section B, under the heading “Natural
justice-the duty to Act fairly”, we then consider circumstances in
which the courts will infer that legislature intends a statutory authority
to observe certain minimum standards of procedural fairness even
though the statute makes no express provision on the matter.
At the outset we should ask why it may be important for a
public authority to observe procedural requirements. Essentially,
these requirements are geared to enabling persons to participate at
a satisfactory level in the making of official decisions and the taking
of official action which concerns them. One criterion of what will
count as a “satisfactory” level of participation will be whether or not
the procedure adopted will give persons concerned sufficient insight
into the decision - making process to enable them to detect any
substantive irregularities of the kind dealt with in the preceding
pages. Reviewable errors of law, whether misstatements or
misapplications of legal rules or failures to exercise discretion on
proper bases, are unlikely to be able to detected unless the
procedure adopted by an authority causes some light to be shed on
its decision-making process, considering as we are the possibility of
challenges to the legality of official action, the fulfillment of such
procedural requirements as the giving of notice, a fair hearing and
reasons for decisions may seen as prerequisites to the detection of
any substantive illegality.
A. Express Statutory Procedural Requirements. 1
Statute or rules and regulations made under statutory authority,
frequently make detailed provision for procedures to be followed by
a public authority in the course of discharging its duties or exercising
its powers. If an authority fails to observe an express procedural
requirement, what steps may be taken by a person affected to rectify
the situations?
326

(j) Mandatory and directory requirements.


In responding to challenges to the legality of official action based on
failure to observe express procedural requirements, the courts have
long tended to classify the requirements themselves as either
‘mandatory’ or ‘directory; To say that a requirement is mandatory
means that failure to observe it makes the authority’s act or decision
invalid, and the court will grant an appropriate remedy. If on the
other hand, a requirement, is classified as ‘directory’, failure to
observe it will not render the act or decision invalid, although there
may be means of securing compliance or sanctions for failure to
comply. The classification of procedural requirements as mandatory
or directory is used in the context of all the various modes and
jurisdictions by which judicial review may be obtained, i. e.
supervisory review, whether the challenge is direct of collateral, and
appellate review. So according to the circumstances, breach of a
mandatory requirement may take an authority ultra-vires, or be a
ground of success in civil or criminal proceedings or constitute a
defence to; or count, as an appealable error of law. in short, the
mandatory/ directory distinction is a general device by which the
courts in the exercise of their review jurisdiction acknowledge that
the importance and effect of breaches of procedural requirements
will vary greatly according to the nature of requirements and the
context in which they appear,
How, do the courts make the distinction in particular cases? A
statute may, of cburse, state expressly or imply clearly what is to be
the consequence of a failure to comply with a particular procedural
requirement. It may be apparent from statutory wording that to give
327

public notice or proposals to restructure an area’s schools248 to


register publicly a planning application249 is a condition precedent to
the action concerned. But the truth is that in the vast majority of
cases where legislature imposes procedural requirements, it does
so, without considering or providing for the consequences of
breach.250 In the absence of statutory guidance in this matter the
courts have taken a somewhat impressionistic approach,
considering on a case to case basis “the importance of the provision
that has been disregarded, and the relation of that provision to the
general object intended to be secured by the Act.”u251. the result is
“an inextricable tangle of loose ends.”252

Thus, to what extent an administrative action in violation of a


prescribed norm of procedure will be invalid is a complex question.
No universal rule can be laid down in this regard. The supreme court
has been stressing time and again that the question whether a
procedure is mandatory of directory is not capable of generalization
and that in each case the court should try and get at the real
intention of the legislature by analysing the entire provision of the
enactment and the scheme underlying it.253 In Ramchandra v.
Govind Jyoti.254 The supreme court held that no universal rule can
be framed to decide if a statutory provision is mandatory or directory,
the courts must interpret it according to the question as to whether a

Brandbury v. Enfield L.B.C.(1967)1 WLR 1311(Statute required public notice


before proposals submitted to minister and provided that “authority shall not do
anything" until proposals approved by him.
Steeples v. Derbyshire C.C.(1984)3 All ER 468(authority empowered to act only
after expiry of prescribed period following registration).
De smith, judicial review of Administrative Action (1980) p.142
Howord v. Bodington (1877) 2p.d. 203 per Lord Panzance at p.211
de Smith judicial review of administrative action (1980) p.142
H.N.Rishad v. state of Delhi, AIR 1955 SC 196; T.V. Usman v.Food
Inspector^ 994)1 SCC750,
(1975)1 SCC559.
328

particular rule is mandatory or directory no test or invariable


formulae to determine this question can be laid down. For this
purpose, the object of the particular provision is required to be
considered.255 Some illustrations may be taken here.
Article 320(3) of the constitution lays down that while taking
disciplinary action against a civil servant in a state, the state public
service commission, "shall be consulted". Interpreting the provisions,
the supreme court in state of U.P.v. Madbodhanlal256 held that it is
only directory and not mandatory and non-compliance with it would
not vitiate the action of the government. But in Guruswamy v. state
of Mysore257 the procedure was held to be mandatory where the
rules made by the government provided for grant of liquor licences
through auction but the excise commissioner accepted an offer
privately. A statute required that an application for stage carriage
permit shall be made not less than six weeks before the date on
which it was desired that the permit shall take effect. It was held in
Shirnivassa Reddy v. State of Mysore258 that it would be wrong to
grant a permit on an application made during a period shorter than
the prescribed period.
In Virendra Kumar v. Union of India,259 an order of termination
of service from the Army on ground of health was set aside because
of failure to observe procedural rules. The court emphasized, “In
service jurisprudence, procedural safeguards are of prime
significance." In Jaswant Singh Mathura Singh v. Ahmedabad
Municipal Corpn.260, the Supreme Court held that when someone’s

Machhua Matsya Vikas Sahkari Simiti Ltd. v. State AIR'1986 All 300.
AIR 1957 SC 912.
AIR 1954 SC 592.
AIR 1960 SC 350.
AIR 1981 SC 947.
AIR 1991 SC 2130.
329

property is being taken over in course of implementation of a town


planning scheme a notice to that person has to be mandatorily given
to ensure that Article 14 & 21 of the constitution are not violated. In
C. B. Gautam v. Union of India,261 while construing section 269 UD
of Income Tax Act, 1961, the Supreme Court ruled that wherever
there is a statutory requirement of a copy of some order to be
passed with reasons to be recorded in writing be served on the
party, the copy served must contained reasons as the same is a
mandatory requirement.
In Harpal Singh Chauhan v. State of U.P.,262 the Supreme
Court held that the requirement under section 24 of the Code of
Criminal Procedure, 1973 of the State Government's consultation
with the District Judge while preparing a panel of advocates for the
appointment of public prosecutor for the district is obligatory in
nature.
The Supreme Court had the opportunity of examining this
question in Bank of Patiala v. S.K. Sharma.263 In this case an order
was passed imposing punishment on an employee after an enquiry
in violation of a procedural norm laid down in Rule 68(b) (iii) Bank
Officers' Service Regulation which provided that the copies of the
Statement of witnesses must be provided to the employee at least
three days before the enquiry. In this case though the employee
had been given an opportunity to examine the file and take notes but
copies of the statements of witnesses had not been provided as
such. Upholding the validity of administrative action the Apex Court
discussed in detail the legal consequences of the violation of a
procedural norm. The court held :

261
(1993)1 SCC 378.
262
AIR 1993 SC 2436.
263
(1996)3 SCC 364.
330

1. An order passed imposing punishment on an employee


consequent upon a disciplinary/departmental enquiry in violation
of the rules/regulation/statutory provisions governing such
enquiries should not be set aside automatically. The
court/tribunal should enquire whether (a) the provision violated is
of substantive nature, or (b) whether it is procedural in character.
2. In case of violation of a procedural provision the position is that
procedural provisions are generally meant for affording a
reasonable and adequate opportunity to the delinquent
employee. They are generally conceived in his interest.
Violation of any and every procedural provision cannot be said to
automatically vitiate an enquiry held or order passed. Except in
cases falling under no notice, ‘no opportunity and no hearing’
categories, the complaint of violation of procedural provision
should be examined from the point of view of prejudice, viz,
whether such violation has prejudiced the delinquent employee
in defending himself properly and effectively. If it is found that he
has been so prejudice appropriate orders have to be made to
repair and remedy the prejudice including setting aside the
enquiry and/or the order of punishment. If no prejudice is
established to have resulted therefrom, it is obvious, no
interference is called for. In this connection, it may be
remembered that there may be certain procedural provisions
which are of a fundamental character, whose violation is by itself
a proof of prejudice. The Court cannot insist an proof of
prejudice in such cases. For example where there is an express
provision providing that after the evidence ' of the
employer/government is over, the employee shall be given an
opportunity to produce evidences in his defence, and if in a given
case the delinquent employee has not been afforded that
opportunity even when requested, the prejudice is self-evident.
No proof of prejudice is required in such a case.
3. The whole question can also be looked from the point of view
whether the procedural provision is directory or mandatory. In
the case of a procedural provision which is directory and not
mandatory in character, the complaint of violation lias to be
examined from the stand point of substantial compliance. An
order passed in violation of such a provision can be set aside
only where such violation has occasioned prejudice to the
delinquent employee.
In case the violation of a procedural provision is of a
mandatory character, it has to be ascertained whether the provision
is conceived in the interest of the person proceeded against or in the
public interest. If it is in the interest of the person, then it must be
seen whether the delinquent employee has waived the said
requirement, either expressly or by his conduct. If he is found to
have waived it, then the order of punishment cannot be set aside on
violation of that provisions. If, on the other hand, it' is found that
delinquent employee has not waived it or the provision could not be
waived by him because it is conceived in the public interest, the
court shall make appropriate directions, including the setting aside of
the order of punishment.
4. where the inquiry is not governed by any specific rules or
regulations and the authority is simply to follow the principles of
natural justice, then a distinction must be made between’ no
opportunity’, order would undoubtedly be invalid and authority
may be asked to take proceeding afresh according to law. In
case of ‘no adequate opportunity’ effect of violation must be
JJZ

examined from the stand point of prejudice caused to the


delinquent employee. If pre-judice has been caused court may
pas necessary orders including the quashing of he order of
punishment. '■

5. There may be situations where the interest of the state or public


interest may call for the curtailing of the rules of fair hearing. In
such situation, the court will have to balance public/state interest
with the requirement of fair hearing and arrive at an appropriate
decision.
6. The test of prejudice and substantial compliance shall not apply
in case of violation of a substantive provision of law. For
example, provisions regarding the constitution of the enquiry
committee must be strictly complied with and violation of such a
provision would render the administrative order in valid.
7. The principles shall not apply in cases where bias is alleged.
Nevertheless “some classes of procedural requirements are
so important that they will nearly always be held to be mandatory.”264
Thus, where statute imposes on a public authority a duty to inform265
or consult266 or give a hearing to267 persons likely to be affected by

proposed action, the requirement will usually be treated as


mandatory. This approach is reinforced where the effect of the
action on the individual concerned may be in the naturd of a penal
sanction268 or loss of property or privilege.269 In these contexts, too,

statutory time limits are likely to be held mandatory. In Howard v.

de Smith, Judicial Review of Administrative Action (1980) p. 144.


Brandbury v. Enfield L.B.C., (1967)1 WLR 1311. ))
Agricultural etc. Training Board v. Aylesbury Mushrooms Ltd (1972)1 W.LR. 190.
Ridge v. Baldwin (1964) AC 40, and see per Lord Diplock in O'Reilly v. Mackman
(1983) 2 A.C. 237 at 276.
Howard v. Bodington (1877)2 P.D. 203 at 213-214.
See cases of note 267 supra. ,
jjj

Bodington,270 for example, where a clergyman was informed only


after eight weeks instead of the statutory maximum of 21 days, of a
complaint laid against him by his parishioners, the proceedings were
held void. Similarly, in Edwick v. Sunbury-on-Thames U.D.C.271 a

refusal of planning permission was held void (and an enforcement


notice thus ineffective) where it was communicated to the applicant
more than two years outside the two months limit for response to an
application.
On the other hand, where the consequence of invalidating
acts done in neglect of a statutory requirement would be to “work
serious inconvenience, or injustice to persons who have no control
over those entrusted with the duty, and at the same time would not
promote the main object of the Legislature, it has been the practice
to hold such provisions to be directory only...”272 So where “the

extreme result (of holding action invalid) is not required for the
effective achievement of the purposes of the statute.”273 a procedural

requirement may be treated as directory only. So, where failure to


give reasons for a decision as required274 or failure to give details, as
required, of points of appeal275 can be remedied by other means,

that failure will not be fatal to the validity of the proceedings.


(ii) Substantial Compliance/no substantial prejudice.
There are increasing indications of the courts’ willingness in
appropriate cases to refrain from a rigid classification of a particular
procedural requirement as in itself mandatory or directory and,
instead, to consider the nature and consequences of breach in a

(1877)2 P.D. 203.


(1962)1 Q.B. 229.
Normandin (1917) A.C. 170 at 175.
Per Winn J. in Brayhead Ltd. v. Berks C.C. (1964)2 Q.B. 303.
As in Brayhead case, Ibid.
As in Howard v. Environment Secretary (1975) QB 235.
334

particular case in Coney v. Choyce,276 for example, a trivial and


partial failure to comply with the public notice requirements regarding
school restructuring (held mandatory in the case Brandbury v.
Enfield L.B.C.)277 was held not to invalidate the action taken. And in
James v. Minister of Housing and Local Government278 the court
ruled that a shorter delay did not’ invalidate a planning permission
granted out of time (distinguished Edwick).279 In both these cases,
the court reclassified the requirement in question as 'directory”.
Surely though, the better approach would be to recognise a third
category of procedural requirement where failure to comply is
capable of nullifying on act or decision but will not necessarily do
so280 whether it does or not would depend on such considerations as
the extent of the failure and of the prejudice, if any sulfured by the
parties concerned.
This approach may be particularly helpful in time limit case. It
may perhaps be applied also in the context of a statutory duty to
give reasons for decisions. Normally, no doubt, breach of such a
duty would cause substantial prejudice and it would be proper for a
review court to characterize the failure as an error of lav/, or failure to
comply with the requirements of an Act. It would be otherwise where
no substantial prejudice had been suffered (e.g. because the
reasons for a decision were already known to the individual
concerned). On the question of how detailed the reasons need to be
the courts in effect already take a "substantial compliance”
approach. The reasons must be reasons which deal with the

276 (1975)1 W.L.R. 422.


277 Supra note 265.
278 (1966): WLR 135.
279 Supra note 271.
280 Lord Denning in effect took this approach in James; he accepted that in an
extreme case such as Edwick the breach of time limit could lead to invalidity;
(1966)1 WLR 135 at 142.
Vtf
JJJ

substantial points281 that have been raised. And although they can
be brief,282 mere recitation of the statutory words is not enough.283
The important matter is that it must be apparent from what (the
authority) states by way of reasons first of all that they have
considered all the points which are at issue and they should indicate
the evidence on which they have come to their conclusion ; i.e. there
must be a link between the material on which certain conclusions are
based and the actual conclusions284.
B. Natural Justice : The Duty to Act Fairly.
(1) Nature and source of the duty.
Suppose that a statute empowers a public authority to act in a
fashion which impinges on some aspect of what a person might
regard as his legitimate interest or expectations. In this vague
phrase ‘interests' would no doubt include not only individual liberty
and property rights protected by private law but also, for example,
official licences or permissions of various sorts and, perhaps, the
preservation of civic and rural amenity in its many aspects. One
may have some, albeit imprecise, notion that one should at any rate
be given a fair hearing before these interests are adversely affected
by the exercise of official power. Similarly, one may regard oneself
as having a ‘legitimate expectation’ to, albeit imprecisely defined,
“fair treatment” in the official processing of one’s claims, complaints
and applications for official licences and permissions.
As we observed in the previous section, there is often express
statutory provision relating to procedures to be followed by a public
authority in the exercise of its powers and discharge of its duties.

Union of India v. M.L. Capoor, AIR 1974 SC 87.


M.J. Sivani v. State of Karnataka (1995)6 SCC 289.
283
Imperial Chemical Industries v. Registrar of Trademarks, AIR 1981 Del. 190.
284
Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622; See also Union of India
v. ML Cooper, AIR 1974 SC 87.
336

The remainder of this concept is concerned with the position where


there is no express provision for interested parties to be heard
before action affecting them is taken. We shall see that there is a
wide variety of circumstances in which, in the absence of such
express provision, the courts infer that the legislature must have
intended that certain elements of fair procedure should be observed.
These elements of fair procedure have long been referred to as
rules, or principles, of “natural justice”. However, for reasons which
will appear, that phrase is now becoming unfashionable: the current
tendency is to speak instead of a duty to act fairly.
Breach of the rules of natural justice when they apply, i.e.
failure to act fairly when required to do so, is treated by the courts in
i.

broadly the same way as breach of an express ‘ mandatory


procedural requirement (which we saw, renders an act or decision
invalid). It may, then, be helpful to think of the demands imposed by
the implied duty to act fairly as "implied mandatory requirements.’’265
Further, because of the wide variety of circumstances in which the
duty to act fairly has been held to exist, the precise details of the
duty will vary greatly from one kind of situation to another. In India,
natural justice has entered into the constitutional area because of
recent holding that Article 14 of the constitution bans all arbitrary
action; and to deprive a person of his life and property without giving
him an opportunity to defend himself is patently an arbitrary
action286. We shall consider the aspects of the notion of fairness
under the broad headings of “the right to a hearing” and “the rule
against bias”.

205
WADE H.W.R. Administrative Law (5m Ed., 1982) p. 415.
286
D.T.C. v. Mazdoor Congress, (1991) Supp. 1 SCC 600(Paras 202-229).
U /

(2) When is there a duty to act fairly?


To what kinds of decisions or, in what situations are the rules
of natural justice applicable? There was a time when in England
they, were said to be applicable only when the act in question was
classified as judicial rather than executive or administrative. This
meant that in deciding whether natural justice had to be observed in
any particular case and what it required, one asked, first was the act
in question judicial in nature. If the answer was no, natural justice
did not have to be observed. If yes, next question was what did
natural justice require in this particular case. This approach is
illustrated by the following cases.
In Nakkuda Ali v. Jayaratne287, the Controller of Textiles in
Ceyion had power to cancel the licence of a dealer in textiles where
he had ‘reasonable grounds to believe’ that the dealer was unfit to
continue in business. The Privy Council held that the controller, in
withdrawing, the dealer’s licence, was not acting judicially, in that he
was not ‘determining a question’, but was taking executive action so
that he was not bound to give the dealer a hearing. In R. v.
Metropolitan Police Commr. exp. Parker,288 a cab driver’s licence
was revoked by the Commissioner. The court held that the
commissioner’s function was administrative and that neither he nor a
committee set up to advise him was bound to hear any evidence
from the cab driver.
In Ridge v. Baldwin,289 one of the seminal cases in modern
administrative law, Ridge the Chief countable was tried for
conspiring to corrupt the course of justice but acquitted.
V'
287
(1951) AC 68.
288
(1953)2 All ER 717; Also see Exp. Fry. (1954)2 All ER 118.
289
(1964) AC 40.
338

Nevertheless, the trial judge severely criticised his conduct, his


position was clearly untenable. The Watch Committee then
dismissed him using a statutory power which empowered them to
dismiss any constable whom they think negligent in the discharge of
his duty.’ Ridge was not present at their meeting nor was he. given
notice of the proposal to dismiss him, particulars of grounds on
which it was based, or an opportunity of putting his cas^e. The court
of Appeal, relying on Nakula Ali (above) (and upholding the High
Court) held that the committee was acting only in administrative
capacity. But the House of Lords disagreed and held the dismissal
void on the basis that the officer had not been given the fair hearing
to which, under the rules of natural justice, he was entitled.
In the period before Ridge v. Baldwin some courts
emphasizing the judicial overtones of the phrase “natural justice"
had held that the rules applied only where a public authority could be
said to be “acting judicially” Ridge v Baldwin eradicated this “judicial
fallacy".290 Then came another change in judicial attitude. In Infant
K(H), the court of Appeal propounded the proposition that whether
the function being discharged by the administration may be regarded
as “quasi-judicial” or “administrative” it must nevertheless be
discharged with fairness. Since, then the horizons of the right of
hearing, whether as a part of natural justice or of fairness have been
expanding. The courts have adopted a liberal approach in this
connection and have imposed the requirement of hearing on a wide
range of decision-making process.291
The emphasis, then, is upon the substance and effect of
statutory power. This emphasis shows how the answer to the

290
Wade HWR., Administrative Law (5th edn. 1982) p. 463.
291
(1967)1 All ER 226.
339

question “when do the rules of natural justice apply?" is linked.to the


bases upon which we have discussed in previous pages, the courts
will review decisions on issues of law, fact and degree and on
1 matters of policy. Judicial review is widely available to correct errors
of law in both these contexts. The substantive limits of statutory
powers thus drawn are reflected in and buttressed by the procedural
protection afforded by the rules of natural justice.
The development in India have been similar to those in
England. The courts in India have realised the need to give a
hearing to the effected person to the utmost limit. As the Supreme
Court has observed in Mohinder Singh Gill v. Chief Election
Commissioner.292
To-day our jurisprudence, the advances made
by natural justice for exceed old frontiers and if
judicial creativity be lights penumbral areas it is
only for improving the quality of government by
injecting fair play into its wheels... Law lives not
in a world of abstractions but in a cosmos., of
concreteness and to give up something good
must be limited to extreme cases. If to condemn
unheard is wrong, it is wrong except where it is
overborne by dire social necessity.
The Court spoke in the same vein in Swadeshi Cotton Mills v. Union
of India.293
...This rule of fair play must not be jettisoned
save in very exceptional circumstances where
compulsive necessity so demands. The court
must make every effort to salvage this cardinal
rule to the maximum^ extent possible, with
situational modifications.
The extension of the principle of natural justice i.e. right of hearing to
the person affected by administrative process has been

292
AIR 1978 SC 851.
293
AIR 1981 SC 818 at 832.
340

consummated by extension of the scope of quasi-judicial and natural


justice as well as by discarding the distinction between “quasi-
judicial” and "administrative" and invoking the concept of fairness in
administrative action. Hearing has thus become norm, rather than
an exception, in administrative process at the present day. It was in
1970, in Kraipak294 that the Supreme Court made a categorical
statement that the distinction between quasi-judicial and
administrative ought to be discarded for the purposes of giving a
hearing to the affected party. Hegde J. said there :
The dividing line between an administrative, and
a quasi-judicial power is quite thin and is being
gradually obliterated... The concept of rule of
law would lose its validity if the instrumentalities
of the state are not enlarged with the duty of
discharging their functions in a fair and just
manner. The requirement of acting judicially in
essence is nothing but a requirement to act
justly and fairly and not arbitrarily and
capriciously... In recent years the concept of
judicial power has been undergoing a radical
change. What was considered as an
administrative power some years back is now
being considered as quasi-judicial power.295
At another place, the Supreme Court observed “The horizon of
natural justice is constantly expanding". There are two strands of
thought in these statements; (i) Duty to act fairly lies on any
administrative authority whether administrative or quasi-judicial; (ii)
the concept of quasi-judicial has been expanding in modern times.
These trends have been strengthened through many later
pronouncements., For example in Maneka Gandhi v. Union of
India,296 Bhagwati J., has emphasized that natural justice is a great.

294
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
295
Id. at 154.
296
AIR 1978 SC 597.
341

“humanising principle” intended to invest law with fairness and to


secure justice and over the years, it has grown into widely pervasive
rule affecting large areas of administrative action. The soul of
natural justice is “fair play in action” and that is why, it Has received
the widest recognition throughout the democratic world. This being
the test of applicability of the doctrine of natural justice, There can
be no distinction between a quasi-judicial and an administrative
function for this purpose. The aim of both administrative enquiry and
quasi-judicial enquiry is to arrive at a just decision, and “if a rule of
natural justice is calculated to secure justice, or to put it negatively,
to prevent miscarriage of justice, it is difficult to see why it should be
applicable to quasi-judicial enquiry and not to administrative enquiry.
It must logically apply to both."297
In India, it is settled that any public authority must act fairly,
justly, reasonably and impartially, even in the absence of any
statutory requirement to that effect. In Neelima Misra v. Harinder
Kaur,298 the question before Supreme Court was whether before
exercising the power under section 31 (8)(9) of U.P. State
Universities act, 1973, the Chancellor was required to observe the
principle of natural justice. Holding the power of appointment as
administrative in nature, the court held that the chancellor was not
required to act judicially though he was required to act fairly,-for the
purpose of which the power is conferred by complying with the
mandate of Article 14 and 16 of the constitution.299 *f"
Thus, when, it is said that natural justice is applicable also to
purely administrative proceedings (which involve ‘civil
consequences) what is meant is not that the authority must act

297
Id. at 626.
298
AIR 1990 SC 1402.
299
Id at 1410.
342

‘quasi-judicially’ but that in every case, it must act ‘fairly’ that is its
action must be free from even any appearance of unfairness,
unreasonableness and arbitrariness. In Hindustan Petroleum
Corporation v. H.L. Trehan300 the Supreme Court made it absolutely
explicit that even when the authority has statutory power to take
action without hearing it would be arbitrary to take action without
hearing and thus violative of Article 14 of the constitution. -In the
same manner in D.K. Yadav v. J.M.A. Industries Ltd.301 the Supreme
Court further held that even where statutory standing orders
empowered the management to terminate the services of an
employee who overstayed the leave period without hearing, the
termination of services would be violative of Article 21 of the
constitution as such a procedure established by law which deprives
a person of his livelihood cannot be said to be just, fair and
reasonable under Article 21 of the constitution.
Natural justice is a pervasive facet of secular law where a
spiritual touch enlivens legislation administration and adjudication to
make fairness a creed of life. It has many colours and shades many
forms and shapes and save where valid law excludes it, applies
when people are adversely affected by acts of the administrative
authority. It is the bone of a healthy government, recognised from
the earliest times and not a mystic testament of judge made law.
Indeed, from the legendary days of Adam and Kautilya’s Arthshstra,
the rule of law has had this stamp of natural justice which make it
social justice. However, natural justice contents yield to change with
exigencies of different situations which are not alike.1 They are
neither cast in a rigid mould nor can they be put in a legal straight

300
(1989)1 SCC 764.
301
(1993)3 SCC 259.
>

343

Jacket. They are not immutable and can be adapted, modified and
excluded by statute, rules or constitution; except where such
exclusion is not charged with the vice of unreasonableness and
consequential voidness.302
Fairness, good faith and want of bias are necessary in
administrative action. There shall be no arbitrariness or
capriciousness. Procedural fairness is an implied mandatory
requirement to protect arbitrary action.303 If procedure offends the
fundamental fairness or established ethos or traditions or shocks the
conscience it becomes unconstitutional.304
Though the Indian constitution does not use the expression
natural justice, the concept of natural justice divested of all its
metaphysical and theological trappings pervades the whole scheme
of constitution. The concept of social and economic justice, in the
preamble of the constitution, conceptually speaking, is the concept
of fairness in social and economic activities of society which is the
basis of the principles of natural justice. Article 311 contains all the
principles of natural justice without using the expression as> such.
Duty to act fairly is part of fair procedure envisaged under Article 14
and 21 of the constitution. Every activity of a public authority or
those under public or obligation must be informed by reason and
guided by public interest.305
Now the principles of natural justice are firmly grounded in art.
14 and 21 of the constitution. With the introduction of the concept of
substantive and procedural due process in Article 21 of the

Satyavir Singh v. Union of India, AIR 1986 SC 555; See also Ravi S. Naik v.
Union of India (199^) supp. (2) SCC 641; Jannat-e-lslamic Hind v. Union of India,
(1995)1 SCC 428; Shiv Sagar Tiwari v. Union of India, (1997)1 SCC 444.
Rashlal Yadav v. State, (1994)5 SCC 267-277.
Tata Cellular v. Union of India, (1994)6 SCC 651,700.
L.I.C. v. Consumer Education and Research Centre (1995)5 SCC 482, 500.
344

i/i
constitution all that fairness which is included in natural’justice can
be read into Article 21 when a person is deprived of his life and
personal liberty. In other areas, it is Article 14 which now
incorporates the principle of natural justice. Article 14 now applies
not only to discriminatory class legislation but also to arbitrary or
discriminatory state action. Because violation of natural justice
results in arbitrariness, therefore, violation of natural justice is
violation of the equality Clause of article 14. This all suggests that
now, the principles of natural justice are grounded in the
constitution.306
Therefore, the principle of natural justice cannot be wholly
disregarded by law because this would violate the fundamental
rights guaranteed by Articles 14 and 21 of the constitution. It was for
this reason that the Supreme Court barely saved Section 314 of the
Bombay Municipal Corporation Act, 1888 which empowered the
commissioner to get illegal constructions and structures removed or
demolished without notice by holding that Section 314 does not
contain command, it only gives discretion to the commissioner which
must be reasonably exercised.307 In State of U.P. v. Vijay Kumar
Tripathi,308 the Supreme Court further held that principles of natural
justice must be read into the provision of a law. Such ia course is
necessary where the rule excludes, either expressly or by necessary
implication, the application of principles of natural justice. In the
same manner in Saij Panchayat v. State of Gujarat,309 where the
government had transferred panchayat area as notified area, the
court held that though the law did not . provide for hearing before

306 Satyavir Singh v. Union of India, AIR 1986 SC 555; see also State of
Maharashtra v. S.K. Durgule, AIR 1985 SC 119.
307 Olga Tellis v. Bombay Municipal Corpn. (1985)3 SCC 545.
308 1995 Supp. (1) SCC 552.
309 (1999)2 SCC 372; See also Piara Singh v. State of Punjab, (2000)5 SCC 765.
345

transfer of land yet denial of such opportunity is not in consonance


with the scheme of law governing our society. The validity of the law
that excludes the principles of natural justice becomes suspect. The
principle of natural justice are not violated where the opportunity of
being heard was afforded but not utilised310
Thus, even if discretion can be exercised in administrative
action, it must be fair and reasonable. So, discretion must be
exercised reasonably, rationally, in public interest and in conformity
with the conditions or guidelines announced to safeguard interests of
the public and the nation.311
In the Indian case law, the terms fairness or fair play and
natural justice are used interchangeably.312 The question raised
now is whether in the specific administrative proceeding affecting an
individual, there ought to be an opportunity of hearing given to the
effected individual, and not whether the proceeding affecting an
individual, there ought to be an opportunity of hearing given to the
affected individual, and not whether the proceeding in question is
"administrative or "“quasi judicial." The new concept has made
hearing a much more widely applicable procedural requirement.
Hearing is now insisted upon in a wide variety of administrative
proceedings and this would not have been possible if the concept of
quasi-judicial and natural justice had applied.
It may also be pointed out here that the law regarding natural
justice has moved much farther ahead than even Ridge v. Baldwin
and the concept of privilege now stand discredited in the common
law world.313 The “privileges” of old have become transformed into

Nagar Palika, Nataur v. U.P. Public service Tribunal (1998)2 SCC 400.
Delhi Science Forum v. Union of India, AIR 1996 SC 1356.
See Maneka Gandhi v. Union of India and Mohinder Singh Gill v. Chief Election
Commissioner, Supra.
313
Schwartz, Administrative Law (1984) p. 225-43.
346

“rights” of to-day. A licence to trade may have characterized as a


privilege in 1951 but certainly it is regarded as right to-day and in
India, it is more than right. The new nomenclature is now commonly
adopted; and in G.C. H Q case Lord Roskill314 went so far as to
suggest that the phrase “natural justice” though "hallowed by time
and much judicial repetition”, was often widely misunderstood and
therefore as often misused” and perhaps might now be allowed to
find a permanent resting place and be better replaced by speaking
of a duty to act fairly”315. Today common law courts are conceding
right of hearing even in case of administrative functions or of denial
of legitimate expectation”316
Thus, in such a context there seems to be no need to put the
clock back in India and go back to the old English cases which are
no longer regarded as authority in their home. In administrative law
where judicial thinking in common law countries has made a long
stride since 1963, there is no point in citing old English cases in
India. This only causes confusion which needs to be avoided at all
cost. There is no need to go behind Ridge case by our courts.317
(3) Legitimate Expectation.
In recent years the courts have tended to define the
circumstances in which ‘privileges’ are protected by the rules of
natural justice by reference to the notion of ‘legitimate expectations;
Legitimate expectation is the latest recruit to the long list of concepts

314 Council of Civil service Unions v. Minister for the Civil Services (1985)AC 374 at
414.
315 See also Lord Diplock in Bushell v. Environmental Secretary (1981) AC 75 at 95.
316 Att. Gen of Hong Kang, v. Ng. Yuen Shin, (1983)2 AC 629.
317 The Supreme Court in Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC
1130, sought to draw a distinction between "right" and privilege for the purpose of
application of natural justice and seems to place "licences” in the latter category.
The court observed that there was a duty to observe the audi alteram partem rule
may not apply to cases which relate not to right or legal expectations put to mere
privilege or licences. The right-privilege dichotomy was created by Nakuda Ali
case. There .is no reason or need to resurrect Nakuda Ali in India.
347

fashioned by the courts for the review of administrative actions.


Legitimate expectation would arise when there is an express
promise given by a public authority that there is a regular practice of
certain thing which the claimant can reasonably expect to continue.
It therefore, follows that the concept of legitimate expectations
consists of inculcating an expectation in the citizen that under certain
rules and scheme, he would continue to enjoy certain benefits of
which he would not be deprived unless there is some overriding
public interest to deprive him of such an expectation. The term
“legitimate expectation" was first used by Lord Denning in 1969 and
from that time it has assumed the position of a significant doctrine of
public law in almost all jurisdictions.318 The emerged concept of
legitimate expectation in administrative law has now gained sufficient
importance. It belongs to the domain of public law and is intended to
give relief to the people when they are not able to justify their claims
on the basis of law in the strict sense of the term though they had
suffered a civil consequences because their legitimate expectation
has been violated.
(a) Emergence in England
In England, the term ‘legitimate expectation’ was first used by
Lord Denning in Schmidt v. Secretary of State for Home Affairs,319
wherein the government had cut short the period already allowed to
an alien to enter and stay in England, the court held that the-person
had legitimate expectation to stay in England which cannot be
violated without following a procedure which is fair and reasonable.
In this manner Lord Denning used the term ‘legitimate expectation’
as an alternative expression to the word ‘right’.

318
See Generally Clerk, R.t In Pursuit of Fair Justice, AIR 1996 (Ji11.
319
(1969)1 All ER 904(CA).
348

However, it was in Breen v. Amalgamated .Engineering Union


(now Amalgamated Engineering and Foundry workers’ union),320
that the doctrine of legitimate expectation found its legitimate place.
In this case, the District committee of a trade union had refused to
endorse a member’s election as shop Steward. The court held that
if a person claims a privilege he can be turned away without hearing,
but here a person has something more than a mere privilege a
legitimate expectation that his election would be approved unless
there are relevant reasons for not doing so, therefore, the natural
justice principles are attracted to the case in order to ensure
fairness.
In the same manner in the case of Melnnes v. Onslow Fane321
also the doctrine of legitimate expectation found fine exposition. In
the case of the British Boxing Board of Control a domestic tribunal
had rejected an application for entrance licence without hearing.
The court speaking through Megrry V. C. made a distinction between
application, forfeiture and legitimate expectation situations in licence
cases. On the one extreme are application cases where person has
no right to the grant of his application. On the other extreme are
forfeiture cases in which a person's existing right is violated and
therefore, he is clearly entitled to the benefit of principles of natural
justice. In betwden these extreme situations lies a third situation of
legitimate expectation cases. This situation may cover cases of
renewal of licence. In this situation a person can legitimately expect
that his licence will be renewed and if his licence is notrenewed he
has a right to know what makes him unsuitable now when he was
suitable earlier-principles of natural justice.

320
(1971)1 All ER 1148 (CA).
321
(1978)3 All ER 211 (Ch. D).
349

The Privy Council in A.G. of Hong Kong v. Ng. Yuen Shiu322


while quashing the removal order passed by the Hongkong
Immigration Authority without notice and hearing also held that there
is a violation of the legitimate expectation of the immigrant based on
announcement of the authority that while examining the cases of
illegal immigration each case would be decided on its own merit and,
therefore, removal cannot be passed without fair hearing.
The basic principles in the branch were enunciated by Lord
Diplock in Council of Civil Service Union v. Ministry of Civil
Services(commonly known as CCSU case),323 it was observed in
this case that for legitimate expectation to arise, the decision of the
administrative authority must affect the person by depriving him of
some benefit or advantage which either (i) he had in the past been
permitted by the decision-maker to enjoy and which he can
legitimately expect to be permitted to continue to do until there has
been communicated to him some rational grounds for withdrawing it
and which he has been given opportunity to comment; or (ii) he has
received assurance from the decision maker that they will not be
withdrawn without giving him first an opportunity of advancing
reasons for contending that they should not be withdrawn.
The procedural part of it relates to a representation that a
hearing or other appropriate procedure will be afforded before the
decision is made. The substantive part of the principle is that if
representation is made that a benefit a substantive nature will be
granted or if the person is already in receipt of the benefit that it will
be continued and not be substantially varied, than the same could
be enforced. In this case Lord Fracer observed that the civil

322
(1982)2 All E.R. 346(PC).
323
(1984) 3 All ER 935(HL); (1985) AC 3/5 (408-409).
350

servants had legitimate expectation that they would be consulted


before their trade union membership was withdrawn because prior
consultation in the past was the standard practice whenever
conditions of service were materially altered. In this case the
administrative authority had withdrawn a long standing practice by a
mere oral instruction. Lord Diplock even ruled that they had a
legitimate expectation that they would continue to enjoy the benefit
of the trade union membership, the interest in regard to which was
protectable.
In a sense, the doctrine of legitimate expectation imposes a
duty to act fairly on administrative authority and is not restricted to
situations where expectationer is to be consulted or be given an
opportunity to make representation .
The principle of a substantive and procedural legitimate
expectation, has been accepted as a part of the English law in
several cases. For example in R. v. secretary of state for Home
Department ex parte Khan,324 it was held that if the authority had
made a statement that a certain criterion or procedure would be
followed the people can legitimately expect that it would be followed
in the decision making process of the authority, therefore, the
authority is under an obligation to follow that criterion or procedure.
In this case, in violation of the provisions of the circular regarding
entry of adopted children in England, the authority had refused entry
to the adopted child of Khan. The court quashed the order of the
authority as it was on considerations of policies which were not in
existence when the circular had been issued.

324
(1985)1 All ER 40(CA).
351

In R. v. Secretary of State for Home department ex parte


Ruddock,325 in violating the established criteria for the issuance of
interception order the Home Department had issued warrant for the
interception of telephone calls of the applicant. Though the court did
not grant relief as nothing unfair or improper was found yet the duty
to act fairly where legitimate expectations are involved was firmly
affirmed.
In R. v. Secretary of state for transport ex parte Greater
London Council,326 the doctrine was applied in tax cases. The court
held that a tax-payer had legitimate expectations to make
representation that he should not pay tax at the maximum rate.
Though the doctrine as evolved in England is still in an
evolutionary stage yet one thing is certain that it is an equity doctrine
and, therefore, the benefit of the doctrine cannot be claimed as a
matter of course. It is a flexible doctrine which can be moulded to
suit the requirements of each individual case. The court did not
apply the doctrine where applicant’s own conduct was unlawful or
claim was unworthy. In Cinnamond v. British Airports Authority,327
the court upheld the decision of the authority to prohibit the entry of
taxi drivers into the airport because of their own past conduct which
invited fines.
In Lloyd v. Mahon,328 the House of Lords further held that the
doctrine does not include within its ambit a right to oral hearing.
Courts have also not protected expectations by judicial review when
nothing unfair was found on the part of the authority or legitimate

(1987)2 All ER 518 (QBD).


(1985)3 All ER 300 (QBD).
(1980)2 All ER 368 (CA).
(1987)1 All ER 1118 (HL).
352

public interest demanded otherwise.329 The doctrine, however, has


been applied to statutory as well s non-statutory authorities.330
(b) Emergence in India
With the aforesaid back ground we shall now examine the
extent to which the principle of legitimate expectation has been
accepted in India. The capacity of the Apex Court to import legal
doctrines and to plant them in a different soil and climate and to
make them flourish and bear fruits is tremendous. The importation
of the doctrine of legitimate expectation is recent. The first reference
to the doctrine is found in State of Kerala v. K.G. Madhavan Pillai,331
In the instant case, the government had issued a sanction to open a
new unaided school and to upgrade the existing ones. However,
after 15 days a direction was issued to keep the sanction in
abeyance. This order was challenged on the ground of violation of
the principle of natural justice. The court held that the sanction order
created legitimate expectation in the respondents which was violated
by the second order without following the principles of natural justice
which is sufficient to vitiate an administrative order.
The doctrine was further applied in SC and WS welfare
Association v. State of Karnataka,332 where the government had
issued a notification notifying areas where slum clearance scheme
will be introduced. However, the notification was subsequently
amended and certain areas notified earlier were left out. The
Supreme Court held that the earlier notification had raised legitimate
expectation in the people living in an area which had been left out in

Supra note 323 & 325.


Supra note 326.
AIR 1989 SC 49.
(1991)2 SCC 604.
a subsequent notification and hence legitimate expectation cannot
be denied without a fair hearing.
Thus where a person has legitimate expectation to be treated
in a particular way which falls short of an enforceable right, the
administrative authority can not deny him his legitimate expectation
without a fair hearing. Legitimate expectation of fair hearing may
arise by a promise or by an established practice.333
Again in case of Navjyoti co-op Group Housing Society v.
Union of India334 on the doctrine of legitimate expectation it has been
held that person enjoying certain benefits/advantage under the old
policy of the government derive a legitimate expectation even
though they may not have any legal right under the private law in the
context of its continuance. "The doctrine of legitimate expectation
imposes in essence a duty on the public authority to act fairly by
taking into consideration all the relevant factors relating to such
legitimate expectation that may have a number of different
consequences is that the authority ought not to act to defeat the
legitimate expectation without some overriding reasons of public
policy to justify its doing so. Within the conspectus of fair dealing in
the case of legitimate expectation, the reasonable opportunity to
make representation by the parties likely to be affected by any
change of consistent past policy came in. In a case of legitimate
expectation if the authority proposes to defeat a person’s legitimate
expectation it should afford him an opportunity to make a
representation in the matter.
In the case of Food Corporation of India v. Mfe Kamdhenu
Cattle Feed Industries,335 it has been held that non arbitrariness,

333
See also State of H.P. v. Kailash Mahajan, (1992) Supp. (2) SSC 351.
334
(1992)4 SCC 477; AIR 1993 SC 155.
335
(1993)1 SCC 71; 76; AIR 1993 SC 1601.
354

fairness in action and due consideration of legitimate expectation of


the affected party are the essential requisites for a valid state action.
It has also been held that whether expectation is legitimate is a
question of fact which has to be determined in the larger public
interest.
The Supreme Court in the case of Union of India v. Hindustan
Development Corporation,336 elaborately considered this law. In this
case it has been held that the principle of legitimate expectation
gave the sufficient locus standi to seek judicial review and that the
doctrine was confined mostly to a right to fair hearing before decision
which resulted in negativing a promise or withdrawing an
undertaking was taken. It did not involve any crystallized right. The
protection of such legitimate expectation did not require the
fulfillment of expectation where the overriding public interest. In this
case several English and Australian cases were referred to and
conclusions were then reached.337 j

In this case in the absence of any fixed procedure for fixing


price and quantity for the supply of foodgrains, the Government
adopted a dual pricing system (lower price for big suppliers and
higher price for small suppliers) in the public interest in order to
break the cartel. The court held that there is no denial of legitimate
expectation as it is not based on any law, custom or past practice.
The court said that it is not possible to give an exhaustive list
wherein legitimate expectations arise but by and large they arise in
promotion cases, though not guaranteed as a statutory right in cases
of contracts, distribution of largess by the government and in
somewhat similar situations.

336
(1993)3 SCC 499; AIR 1994 SC 1988.
337
See also P.T.R. Exports v. Union of India, (1996)5 SCC 268.
Explaining the meaning and the legitimacy of the
doctrine, the Supreme Court held :
"Time is a three-fold present: the present
as we experience it, the past as a present
memory and future as a present expectation.
For legal purpose, the expectation cannot be the
same as anticipated. It is different from a wish,
a desire or a hope nor can it amount to a claim
or demand on the ground of a right. However,
earnest and sincere a wish, a desire or a hope
may be and however, confidently one may look
to them to be fulfilled, they by themselves
cannot amount to an assertable expectation and
a mere disappointment does not attract legal
consequences. A furious hope cannot amount to
a legitimate expectation. The legitimacy ok an
expectation can be inferred only if it is founded
on the sanction of law or custom or an
established procedure followed in a natural and
regular sequence. Again, it is distinguishable
from a mere expectation. Such expectation
should be justifiably legitimate and protectable.
Every such expectation does not by itself fructify
into a right and, therefore, it does not amount to
a right in a conventional sense.”338
The court further held that unless the fair hearing is not a pre­
condition for the exercise of power the doctrine has no role to play
and the court should not interfere with the exercise of discretion by
the administrative authority. The court must allow full choice to the
authority which the legislature is presumed to have intended. Thus,
the extent of judicial review of administrative action is very limited.
The doctrine of legitimate expectation is “not the key 'Which unlocks
the treasury of“ natural justice and it ought not to unlock the gates
which shuts the court out of review on the merits.” The court should

Union of India v. Hindustan Development Corpn. (1993)3 SCC 499 at 540.


356

exercise self-restraint and restrict the claim of denial of legitimate


expectation to the legal limitations.339
In case of Madras city Wine Merchant association v. State of
Tamil Nadu,340 the matter related to renewal of liquor licences rule
which were statutorily altered. It was therefore held that the repeal
being a result of a change in the policy by legislation, the principle of
non-arbitrariness was not invokable.
The principle of legitimate expectation confers noon person a
right which is enforceable in case of its denial. But whether an
expectation is legitimate or not is a question of fact which has to be
determined not according to claimant’s perception but in the larger
public interest.
Thus, in U.T. Chandigarh v. Dilbag Singh,341 the Supreme
court held that selectees are not entitled to an opportunity of hearing
before cancellation of the- list even though they have legitimate
expectation but they have no indefeasible right to be appointed in
absence of any rule to that effect. On the other hand, in U.P. Awas
Evam Vikas Prashid v. Gyan Devi,342 the court held that the local
body which has the right to lead evidence under Section 20(2) of the
Land Acquisition Act for the purpose of determining compensation
can legitimately expect to receive notice about the pendency of the
proceedings and its right to lead evidence and if this legitimate
expectation is denied the court can intervene.
Again in M.P. Oil Extraction Co. v. State of M.P.,343 the
Supreme Court held the State’s Policy to extend renewal of an
agreement to selected industries which came to be located in

339 Supra note p. 336.


340 (1994)5 SCC 509.
341 (1993)1 SCC 154.
(1995)2 SCC 326.
343
(1997)7 SCC 592; AIR 1998 SC 145.
357

Madhya Pradesh on the invitation of the State, as against the local


industries was not arbitrary and the said selected industry had a
legitimate expectation of renewal under the renewal clause.
Then there is a case by Three Judges namely the National
Building construction corporation v. Raghunathan.344 This case
related to service matter where persons working on deputation in
Iraq were given 125% of basic pay as foreign allowance. After
revision of pay scales by the Fourth Pay commission, this allowance
was withdrawn. The Supreme Court rejected the contention of
violation of legitimate expectation on the ground that peculiar
situation prevailing in Iraq justified change in policy. Thus, unless the
change of policy is clearly irrational or perverse, court will not
interfere. The Supreme Court brought in the of ‘detriment’ in
legitimate Expectation Theory and held that enforcement of any
legitimate expectation required; (i) reliance on representation;
resultant detriment. The court further observed that though the
government has the power to change its policy in public interest yet
the court can look into the question of proportionality of change of
policy and can see whether legitimate expectation has been properly
balanced against the need for change. However, Court’s discretion
must not transgress Wednesbury principle. Court cannot judge the
merit of the policy. Therefore, unless the change of policy is so
outrageous that no sensible person who had applied his mind to the
question to be decided could have arrived at it. Court will not
interfere because flexibility necessarily inherent in this principle must
not be sacrificed on the alter of legal certainty.
In this case it was observed that the doctrine of legitimate
expectation had both substantive and procedural' aspects. In

344
(1998)7 SCC 66: AIR SC 2277.
essence, the Supreme Court laid down a clear principle that required
reliance as representation and resultant detriment in the same way
as claims based on promissory estoppel. This principle is very akin
to “reasonableness” and natural justice.
Elaborating the law further in Punjab Communication Ltd. v.
Union of India,345 the Apex Court observed that legitimate
expectations may be procedural and substantive both. The
procedural part of it relates to a representation that a hearing or
other appropriate procedure will be afforded before any change in
decision is made. The substantive part of the principle relates to the
representation that a benefit of a substantive nature will be granted
or will be continued. Procedural legitimate expectation cannot be
withdrawn without giving a person some opportunity of advancing
reasons for contending that it should not be withdrawn unless some
rational grounds for withdrawing it has been communicated to the
person and on which he has been given opportunity to comment.
The principle of legitimate expectation in the substantive sense that
the decision-making authority can normally be compelled to give
effect to his representation unless overriding public interest demands
otherwise has become the part of Indian law no matter it has still not
been accepted in many jurisdictions.346 On the other hand European
Courts go a step further and try to balance legitimate interest with
the demand of public interest. !
Very recently, the Supreme Court in the case of Dr. Mrs.
Chanchal Goyal v. State of Rajasthan347 observed that in a service-
matter unless there was specific waiver of conditions attached to the
original appointment order, mere continuance in service did not

345
(1999)4 SCC 727; AIR 1999 SC 1801.
346
Canada Assistance Plan, Re, (1991)83 DLR (4th) 297.
347
(2003) 102 RJR 788.
359

imply such waiver. No legitimate expectation could be founded on


such unfounded impressions.
The above survey of cases shows that the doctrine of
legitimate expectation in the substantive sense has been accepted
as part of our law and that the decision maker can normally be
compelled to give effect to his representation in regard to the
expectation based on previous practice or past conduct unless some
overriding public interest comes in the way. As a doctrine it takes its
place besides such principles as rules of natural justice, rule of law,
non-arbitrariness, reasonableness, fairness promissory estoppel,
fiduciary duty and, perhaps, proportionality to check the abuse of the
exercise of administrative power.348 However, as an equity doctrine
it is not rigid and operates in areas of menifest injustice. It enforces
a certain standard of public morality in all public dealings. However,
considerations of public interest would outweigh its application. It
would immensely benefit those who are likely to be denied relief on
the ground that they have no statutory right to claim relief.
In India, the Apex Court has developed this doctrine in order
to check the arbitrary exercise of power by the administrative
authorities. In private law a person can approach the court only
when his right based on statute or contract is violated but this rule of
locus standi is relaxed in public law to allow standing even when a
legitimate expectation from a public authority is not fulfilled.
Therefore, this doctrine provides a central space between ‘no claim’
and a ‘legal claim’ wherein a public authority can be made
accountable on the ground of an expectation which is legitimate.
With the passage of time we are getting enlightened to the
various fundamental rights as guaranteed by the constitution under

348
Union of India v. Hindustan Development Corpn. (1993)3 SCC 499.
360

article 14 of the constitution. We have a right to equality but the


executive and administrative excesses many a time deprive us of
this. There is therefore constant demand that the administrative
action must be fair, reasonable and non-arbitrary. This is an
enlargement principles of natural justice.. The doctrine of legitimate
expectation has its genesis in the field of Administrative Law.
Precisely speaking the Government and its departments, in
administering the affairs of the country are expected to honour their-
statements of policy or intention and treat the citizen equally without
any iota of abuse of discretion. The policy statement cannot be
disregard unfairly or applied selectively. Unfairness in the form of
unreasonableness is akin to violation of natural justice. It was in this
context that the doctrine of legitimate expectation finds its origin.
Like, the bulk of the administrative law, the doctrine of
legitimate expectation is also a fine example of judicial' creativity.
Nevertheless it is not extra-legal and extra-constitutional. The
doctrine has negative and positive contents both. If applied
negatively an administrative authority can be prohibited from
violating the legitimate expectations of the people and if applied in a
positive manner an administrative authority can be compelled to fulfil
the legitimate expectations of the people. This is based on the
principle that public power is a trust which must be exercised in the
best interest of its beneficiaries - the people.
This is a procedural right which in certain contingencies
becomes substantive right. It is rather a safety value against the
abuse of discretion by the over zealous administrative authority.
Ostensibly it may not have a sound and fury but certainly it
signifies a lot on the right of equality in the modern progressive
society with fast changing social values and a new economic order,
361

new concepts have surfaced, their judicial redress is sought of it


legal injury as legal wrong is inflicted by the acts and omissions of
the executive and the administrative authorities. The doctrine of
legitimate expectation is such a concept but judicial attempts need
be made to delineate parameters that embrace both “promissory
estoppel” and legitimate expectation so that they may -.not interplay
and interact to the determinant of the remedy seeker.
(4) What Counts as acting fairly?
The concept of ’fairness’ has not made the task of the courts
easier. The court have still to decide whether a particular
administrative proceeding is of the type where the concept of
fairness is to be applicable and ,if so ,what exactly fairness requires
in that context. In other words, the courts have to decide whether the
proceedings are such that the basic components of natural justice
are to be applied or it is ’fairness’ which is to be applied, and if so, to
determine its contents in the context of the situation in hand, or the
administrative action is such that it does not call for either the
applicability of natural justice or fair procedure.
Thus we turn now to the content of natural justice: from the
question “when is there a duty to act fairly?” to the question “what
counts as acting fairly when there is a duty to do so?” It is not
possible to lay down rigid rules as to when the principles of natural
justice are to apply; nor as to their scope and extent349. The
requirements of natural justice must depend on the circumstances of
the case, the nature of the inquiry, the rules under which the tribunal
is acting, the subject-matter that is being dealt with, arid so forth.350
Nevertheless, some general indication may be given of what, in

349
Per Lord Denning M.R. in R.v. Gaming Board ex P. Benaim (1970)2 Q.B. 417 at
430.
350
Russel v. Duke of Norfolk (1949)1 All Er 109 at 118 (Per Tucker L.J.).
\

362

particular circumstances, may count as acting fairly. In Ridge v.


Baldwin Lord Hodson observed351 that c
“.... three features of natural justice stand out...
(1) the right to be heard by an unbiased tribunal,
(2) the right to have notice of charges " of
misconduct,
(3) the right to be heard in answer to those charges”
Clearly the duty to act fairly applies in many circumstances
where no question of ‘misconduct’ arises. So, a more generalised
statement would refer to “the opposing case” rather than to “charges
of misconduct". The right to notice and to a hearing are features of
the co-called audi alteram partem rule (“hear the other side”); and
the rule against bias commonly appears as nemo judex in causa sua
(no one a judge in his own case”). Before considering separately
hearings and bias, we may recall that natural justice is generally
called in aid only in circumstances where statute -has not made
detailed provision for a fair procedure.
(a) The right to a hearing.
(i) prior notice-Generally speaking a right to a hearing
“necessarily extends to a reasonable opportunity to prepare your
case before you are called on to present it, i.e. to prior notice of the
proceedings at which the matter is to be considered. But on the part
of the obstructive conduct of the person affected, or where in special
circumstances the person will not be prejudiced, prior notice may be
unnecessary.
(ii) The Opposing case-Prior notice must obviously include such
features of the opposing case as will fairly enable a person to
marshal his own case. Equally obviously, many details (of evidence,

351
(1964) AC 40 at 132.
352
For cases where reasonable attempt to serve notice (as distinct from actual
service) may suffice. See de Smith, Judicial Review of Administrative Action
(1980) p. 197.
submission etc.) will appear only at the hearing itself. Moreover, in
certain circumstances the courts have permitted considerations of
public policy to justify concealment of certain aspects of the
opposing case, e.g. in Malak Singh v. State of Punjab.353 The
Supreme Court held that surveillance in Register of police is a
confidential document.
(iii) Non-disclosure of relevant material - An individual will have been
deprived of a fair hearing before a court or tribunal where his
opponent has failed to disclose information in his possession which
would be of assistance to the individual.354 This may appear at first
sight to be merely an extension of the right to know the opposing
case; but it seems that the principle goes beyond this. It may apply
also where the fault is that of the individual’s own legal advisers, and
possibly that of the individual himself. In all these cases, of course
the tribunal itself is faultiess-but the real question is whether there
was in truth, a breach of the rules of natural justice, A hearing is not
fair if there is relevant material available which is not placed before
the tribunal.
(iv) Details of procedure... The actual extend of a person’s
knowledge of and ability to answer an opposing case will turn very
much on the details of the procedure adopted by the deciding
authority, e.g. whether the hearing is oral or, on contrary, by way of
written submissions; if it is oral; whether or not there is a right to
legal or other representation and a right to call and to cross examine
witnesses. There is often detailed statutory provision on matters of
procedure. But in cases where statute is silent the courts have

353
AIR 1981 SC 760.
354
Dhankeshwari Cotton Mills v. E.l.T. AIR 1955 SC 65.
364

refrained from any general statement beyond that “what procedure is


to be in detail must depend on the nature of the tribunal.
Hearing will commonly be oral and failure to give an oral
hearing may be a denial of natural justice where in all the
circumstances or the case it seems “possible that if the applicant
had an oral hearing...further matters could have been advanced on
his behalf. But there are many situations where a case may be put
adequately in writing and where, accordingly, the courts have
refused to rule that an oral hearing is essential.
Again, whether or not(in the absence of statutory provision) to
permit parties to be represented at an oral hearing will commonly fall
within a deciding authority’s procedural discretion, -taking into
consideration facts and circumstances of every case355
Finally, especially in penal and other cases, where questions
of fact are in issue, a fair hearing will normally include the right to call
witnesses, and to cross-examine356 those called by the other side.
But a tribunal chairman may limit the number of otherwise. But a
tribunal chairman may limit the number of witnesses, e.g. on the
basis that he has good reason for considering that the total number
sought to be failed is an attempt.... to render the hearing of (a)
charge virtually impracticable or where... it would be quite
unnecessary to call so many witnesses to establish (a) point.
(v) Reasons for decisions... It is plain that the value of a right to a
hearing will be considerably diminished if it does not extend to a
right to know the reasons upon which a decision is ultimately based.
In particular, of course, it is difficult effectively to challenge a

Ramchander Tripathi v. U.P. Service Tribunal (1994)5 SCC 180 State Bank of
India, v. Mahendra Kumar Sehgal, (1994) Supp. 2 SCC 463.
State of J & K v Bakshi Ghulam Mohammad, AIR 1955 SC 65; Surjit Singh
Chhabra v. Union of India (1997)1 SCC 508.
365

decision (by way of appeal or otherwise) if one is not apprised of the


reasons for it. Statutory procedural rules very commonly require
reasons to be given. But in the absence of express statutory
provisions and where reliance must replaced on the rules of natural
justice, it is said that there is not "any general principle of law which
imposes on a decision-maker a duty to make known the reasons for
his decisions. However, at present, the case law indicates that there
is courts’ wide insistence that official decisions should be based on
proper grounds. It would surely complement this approach if the
courts were to state that the giving of reasons is in general a
constituent of natural justice,357 although the extent of the duty will
depend on the particular circumstances of a case.
(b) The rule against bias
(i) General Considerations. - Where the rule against bias applies, a
person exercising official power breaks the rule if either (a) he has a
pecuniary interest in (i.e. stands to gain financially from) a decision
or (b) there is real likelihood that he is predisposed to decide in a
particular way. The case law establishes in effect that the very
existence of pecuniary interest is taken without more to show a real
likelihood of bias; and that, in the absence of pecuniary interest, it is
sufficient to demonstrate a real likelihood of bias in the
circumstances of the case. In either event it is unnecessary to show
that a person was actually biased.
(ii) pecuniary interest... Where it applies, the rule against bias
is broken if the decision-maker has “any direct pecuniary interest,
however small, in the subject of inquiry. So in a well-known case,
Lord Chancellor Cottenhan had decided a land title dispute in favour

357
Siemen Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785; See also Maneka
Gandhi v. Union of India, AIR 1978 SC 597; T.R Thakur v. Union of India (1996)3
SCC 690; Krishanlal v. Union of India, (1998)2 SCC 392.
366

of a company in which, as it later appeared, he owned shares. The


House of Lords allowed an appeal on the basis of Lord Cottenham’s
pecuniary interest.358
(iii) Real Likelihood pecuniary interest apart, the rule against
bias is broken when it can be shown that in the circumstances of the
case there is a “real likelihood" of bias on the part of the deciding
authority. After some judicial oscillation, it appears now settled that
the test of the existence of “real likelihood’ is whether a reasonable
person in possession of such relevant information as he might
readily have ascertained would have thought that bias was likely.
On this test it is immaterial whether or not the review court is, on the
basis of the facts established before it, of the opinion that there was
actually a real likelihood of bias.359
There is of course, infinite number of circumstances in which
the "real likelihood” test may be satisfied. For example in Fakruddin
v. Principal custodian,360 the Supreme Court held that when a judge
who was the lawyer of the client whose case he decides, there is
real likelihood of bias. In State of U.P. v. Mohd.361 Nooh where
Presiding officer himself becomes a witness, there is certainly a real
likelihood of bias. In A.K. Kripak v. Union f India,362 where a member
of selection committee himself was also a candidate, the Supreme
Court held that there was a real likelihood of bias.

358
Dimes v. Grand Junction Canal Properties, (1852)3 H.L.C. 759.
359
Wade HWR, Administrative Law (5lh Edn. 1982), p. 450-432; de Smith, Judicial
Review of Administrative Action (4th ed, 1980) p 262-264.
360
(1995)4 SCC 538.
361
AIR 1958 SC 86.
362
AIR 1970 SC 150.
367

(5) Effect of breach of duty to act fairly.


(a) Bases of Challenge.
The rules of natural justice are, as we have seen implied
statutory procedural requirements. On what bases may a victim of a
breach of the rules challenge that breach in the courts?
It is clearly established by authority that for purposes of
supervisory review, breach of the rules is to be regarded as
tantamount to jurisdictional error or acting ultra vires, thus rendering
an act or decision void rather than violable. Thus, a “no certiorari”
clause is no bar to supervisory review based on denial of natural
justice, And a party may make such a denial the basis of a collateral
challenge.
(b) The void/voidable distinction.
(i) Substantial injustice. There appears to be some difficulty in
reconciling the proposition that breach of the rules of natural justice
renders a decision void with commonsense principle that only
breaches likely to have caused a substantial miscarriage of justice
should be remedied. But the remedies of supervisory review are all
discretionary and the question of substantial miscarriage can
properly be dealt with in the exercise of this discretion. In its
exercise of appellate jurisdiction, a court may have express statutory
power to dismiss the appeal, if they consider that no miscarriage of
justice has actually occurred. Failing this, a court may well take the
view(albeit arguably inconsistently with the principle that any denial
of natural justice renders a decision void) that the appeal should be
allowed only in the event of a substantial miscarriage. In case of
collateral challenge, e.g. a suit for damages, the court may indeed
have no discretion as to remedy. But again, in such a case one
might expect that a court might decline to accede to the challenge
368

where so substantial injustice had been done. Finally, under the


“statutory supervisory review” jurisdiction, a party complaining of
breach of a procedural requirement must show ‘substantial
prejudice’.
(ii) Waiver-There \k authority for the proposition that a breach of the
rule against bias may be waived (so precluding subsequent
challenge); and it may be likewise where a fair hearing is denied. At
first sight this may appear inconsistent with the proposition that
denial of natural justice renders a decision void because outside
jurisdiction. For as a general rule jurisdictional defects cannot be
waived; So as to confer a power where none exists, any more than
estoppel can operate to curtail a power which has been conferred.
The courts’ approach to waiver of denials of natural justice may be
seen, however, as another example of their refusal to be hidebound
by the unsatisfactory concept of voidness, or ‘nullity’ Now the rules
of natural justice may be seen as conferring personal benefit on
individuals who, accordingly, should be entitled to waive their
observance. In these circumstances it appears sensible to treat a
person who has waived a breach of the rules of natural justice as not
being, in the circumstances, any more entitled to challenge the
decision in question than a person who has delayed his challenge
inordinately or who has no sufficient interest in the matter.
(iii) Double jeopardy - Under the rule against double jeopardy “a
man cannot be tried for a crime in respect of which he has previously
been acquitted or convicted. Suppose that a court, in acquitting a
defendant, denies natural justice to the prosecution by, for example,
refusing to hear a competent witness. It appears that the acquittal is
not to be regarded as void so as to deny to the acquitted defendant
the protection of the rule. But if a court wrongly declines jurisdiction
369

(e.g. by refusing to hear the prosecution’s case at all) the


363
prosecution may obtain mandamus requiring the court to proceed.
For, no trial having occurred, the defendant was never in jeopardy of
conviction.
The courts’ treatment of the notion of 'voidness’ in each of the
above three contexts illustrates well a judicial tendency already
noted. For while the words ‘void’ and ‘voidable’.
“may be helpful in argument (they) may be misleading in effect if
relied on to show that the courts, in deciding the consequences of a
defect in the exercise of power are necessarily bound to fit the facts
of a particular case.... into rigid legal categories or to stretch or
cramp them on a bed of procrustes invented by lawyers for the
purposes of convenient exposition.’’364
C. REVIEW
The basic ground of judicial review in England is the principle
of jurisdiction, otherwise known as ultra vires. But this jurisdictional
principle embodies a dichotomy of distinction between error of
jurisdiction and error within jurisdiction i.e. errors ultra vires and
errors intra vires. While former is reviewable at all, latter is
reviewable when error is of law which is apparent on the face of the
records. However, in English law an attempt has been made to
abandon the distinction between errors ultra vires and errors intra
vires as far as points of law are concerned. This was done in
Anisminic case.365 As it is not certain how for this will go.366 The
American courts have discarded the jurisdictional and non

Re Harington (1984) AC 743.


Per Lord Hailsham in London & Clydeside Estate Ltd. v. Aberdeen District
Council (1980)1 W.L.R. 182 at 189.
(1969) AC 147.
S. E. Asia Fire Bricks v. Non-Mettalic Union, (1981)AC 363.
370

jurisdictional distinction on question of facts by adopting the


‘substantial evidence’ doctrine.
In India the principle of errors of law apparent orrthe face of
the record has been to a large extent, denuded of its utility by review
of decision on a 'true interpretation of a statute’. By granting review
on a ‘true interpretation of a statute’, the courts, in effect exercise a
power of statutory appeal on points of law which is not necessarily
confined to error of law apparent on the face of the record, is likely to
retain its utility, as it provides a basis for review of no evidence,
wrong evidence and wrong conclusion from evidence.
The courts in India have to chalk out their own path within the
constitutional framework in which they operate. The discussion
shows that the courts in India have gone too far to put the clock
back. They have created a mass of case law which it is hard to fit in
with English principles. The courts may well follow in the footsteps
of the American courts to create new rules and principles to
accommodate practice with theory; creative enterprise rather than
nostalgia for the past, is needed to weed out anarchy and chaos
from law. Law nbeds nourishment for its health and vitality from both
the judges and legislature; and the task of putting it on the even keel
of order and harmony has to be undertaken by both the judges and
the law makers. >
; )

In the context of natural justice, the experiences of the courts


show that however much we would like to throw out the
administrative/judicial distinction it inevitably returns. Some areas of
administrative activity are found inappropriate for the application of
natural justice and all that is involved in it(viz. absence of bias,
notice, oral hearing, cross examination, giving of reasons, and
necessity to decide on the basis of record etc.). These are labelled
371

as administrative. However, it is important to put the basis of the


distinction on clearly formulated set of criteria. It might be found
necessary to subject even the ‘administrative acts’ to some
procedural safeguards. The concept of the duty to 'act fairly’ is
useful for that purpose. But its contents and scope ought to be
clearly articulated to avoid its haphazard application.

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