a 2.1

1 1

Class -LL.B (HONS.) IV SEM. Class -LL.B (HONS.) IV SEM.

ADMINISTRATIVE LAW

ADMINISTRATIVE LAW

I) Administrati! La"M!anin#

-I) Administrati! La"-M!anin# - Sir Ivor Jonning defnes Administrative Law as the LawSir Ivor Jonning defnes Administrative Law as the Law relating to administration. It determines the organization, powers and duties o

relating to administration. It determines the organization, powers and duties o administrative authorities.

administrative authorities.

According to Dr. F.J. ort!"Administrative law is made up o all these legal rules either ormall# According to Dr. F.J. ort!"Administrative law is made up o all these legal rules either ormall# e$pre

e$pressed %# statute or implied ssed %# statute or implied in the prerogative!whiin the prerogative!which have as their ch have as their ultimate o%&ect theultimate o%&ect the ulfllment o pu%lic law. It touches frst

ulfllment o pu%lic law. It touches frst the legislature, in the legislature, in that the ormall# e$pressed rulesthat the ormall# e$pressed rules are usuall# laid down %# that %od#' it

are usuall# laid down %# that %od#' it touches &udiciar#, in that (a) there touches &udiciar#, in that (a) there are rules whichare rules which govern the &udicial action that ma# %e %rought %# or

govern the &udicial action that ma# %e %rought %# or against administrative person, (%)against administrative person, (%) administrative %odies are sometimes permitted to e$ercise &udicial powers* thirdl#, it administrative %odies are sometimes permitted to e$ercise &udicial powers* thirdl#, it is ois o course essentiall# concerned with the practical

course essentiall# concerned with the practical application o Law.+application o Law.+  he Administr

 he Administrative law deals with compositioative law deals with composition and powers o di-ern and powers o di-erent organs oent organs o administration, the procedure with the administrative authorities shall

administration, the procedure with the administrative authorities shall adopt in the adopt in the e$ere$ercisecise o their powers and the various modes

o their powers and the various modes o control including particularl# &udicial control overo control including particularl# &udicial control over the di-erent inds o powers e$ercise

the di-erent inds o powers e$ercised %# the administrative authorities. In d %# the administrative authorities. In short theshort the

administrative law deals with the powers, particularl# /uasi!&udicial and /uasi!legislative o administrative law deals with the powers, particularl# /uasi!&udicial and /uasi!legislative o administrative authorities along with their

administrative authorities along with their e$ece$ecutive powers and their utive powers and their control.control. F

Freiedmann, while dealing with the reiedmann, while dealing with the nature and scope o nature and scope o AdministrativAdministrative law e law sa#s thatsa#s that

Administrativ

Administrative law includes the e law includes the law relating to!law relating to! (i)

(i) he legishe legislativlative powers o the adme powers o the administinistratioration, %oth at common, %oth at common law and unden law and underr statute'

statute' (ii)

(ii) he administrative phe administrative powers o the adowers o the administration, %oth aministration, %oth at common law ant common law andd under a vast man# o

under a vast man# o statutes'statutes' (iii)

(iii) he &udicial and /uasi!&udicial powers o administration, all o them statutor#'he &udicial and /uasi!&udicial powers o administration, all o them statutor#' (iv)he legal lia%ilit# o

(iv)he legal lia%ilit# o u%lic authorities'u%lic authorities' (v)

(v) he power o the ordinhe power o the ordinar# courts o supervar# courts o supervise the administrative authorities.ise the administrative authorities. La" C$ll!#!

La" C$ll!#!

II) Nat%r! and Si II) Nat%r! and Si powers o powers o administr three administr three heads! heads! % %>>\\ S$! $* S$! $* Ad Ad istrative istrative aut aut Administrati!

La"-Administrati! La"- 0ature ! Administrative law is stud# o0ature ! Administrative law is stud# o multiarious authorities and the nature o their power can

multiarious authorities and the nature o their power can %e studies%e studies under the ollowing

under the ollowing Nat%r! $* Administrati! La" Nat%r! $* Administrati! La"

((AdministrativAdministrative authorities and the e authorities and the nature o their powernature o their power))

1

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 fA^

ii

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. i

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Class -LL.B (HONS.) IV SEM. Class -LL.B (HONS.) IV SEM. III) S$!

III) S$! ! he province o Administrative law consists o the ollowing!! he province o Administrative law consists o the ollowing! IV) ,r$"t $* Administrati! la" in

India-IV) ,r$"t $* Administrati! la" in India- in India a s#stem o in India a s#stem o %oth administrative%oth administrative legislation and ad&udication were in e$istence rom ver# earl# time. 4ut in earl#

legislation and ad&udication were in e$istence rom ver# earl# time. 4ut in earl# 4ritish India,4ritish India, e$

e$ecutive had the overriding powers in the matter ecutive had the overriding powers in the matter o administration o &ustice During theo administration o &ustice During the 4ritish rule in India, the

4ritish rule in India, the e$ece$ecutive was invested with such wide powers to mae rules as utive was invested with such wide powers to mae rules as aa modern democratic legislatur

modern democratic legislature cannot even imagine. In e cannot even imagine. In that period though the court hadthat period though the court had ample powers to set aside an

ample powers to set aside an administrative action,administrative action, La" C$ll!#!

 

Class -LL.B (HONS.) IV SEM. Class -LL.B (HONS.) IV SEM.

#et paid great respect and attention to their

#et paid great respect and attention to their decisions. Judicial relie was availa%le onl# whendecisions. Judicial relie was availa%le onl# when the administrative remedies were

the administrative remedies were e$haustede$hausted..

 he Law 5ommis

 he Law 5ommission in its 6I 7th 2sion in its 6I 7th 2eport has traced the reaeport has traced the reasons or the growsons or the growth oth o administrative law in the

administrative law in the ollowing words!ollowing words! "Societ# in the 89th

"Societ# in the 89th centur# has %ecome e$ceedingl# comple$ and governmentalcentur# has %ecome e$ceedingl# comple$ and governmental unctions have multiplied. he change in the scope and

unctions have multiplied. he change in the scope and character o the :overnmentcharacter o the :overnment rom negative to positive, that is, rom the

rom negative to positive, that is, rom the laissez aire to the pu%lic service state laissez aire to the pu%lic service state hashas resulted in the concentration o considera%le power in the

resulted in the concentration o considera%le power in the hands o the e$ecutivehands o the e$ecutive %ranch o :overnment.

%ranch o :overnment.

V)

V) S$%r!s $* Administrati! La" iS$%r!s $* Administrati! La" in Indian India VI) Is Administrati! la" in$nsi

VI) Is Administrati! la" in$nsist!nt "it R%l! $* st!nt "it R%l! $* La"/ -La"/ - AdministrativAdministrative law e law is notis not inconsistent with rules o

inconsistent with rules o lawlaw. Administrative law checs . Administrative law checs and controls the discretionar#and controls the discretionar# powers o administrative authorities.

powers o administrative authorities.

 he administrative law

 he administrative law and rule o law are notand rule o law are not opposed to each other %ut on

opposed to each other %ut on the other handthe other hand go parallel with a common o%&ective o

go parallel with a common o%&ective o achieving an

achieving an orderl# government.orderl# government.

VII) Dr$it

Adiministrati*-VII) Dr$it Adiministrati*- Droit Administrative can %e defned as a %od# o rules Droit Administrative can %e defned as a %od# o rules whichwhich determines the organization and the duties o pu%lic administration and which regulate the determines the organization and the duties o pu%lic administration and which regulate the relations o administration with the citizens o the

relations o administration with the citizens o the State.State.

S%&'!t - Administrati! S%&'!t - Administrati! La"

La"

S$%r!s $* Administrati! La" in India S$%r!s $* Administrati! La" in India La" C$ll!#!

Class -LL.B (HONS.) IV Class -LL.B (HONS.) IV SEM.

SEM.

I) D$trin! $* S!arati$n $*

0$"!rs-I) D$trin! $* S!arati$n $* 0$"!rs-  he doctrine o separation o pow he doctrine o separation o power can %e traced toer can %e traced to Aristotle. 4ut it was

Aristotle. 4ut it was ormulated or the frst time %# the ormulated or the frst time %# the FFrench &urist. 3ontes ;viu.rench &urist. 3ontes ;viu. In India, we have three organs to unction properl# as %elow !

In India, we have three organs to unction properl# as %elow ! i)

i) ;$;$ececututivive < to ie < to impmplelemement tnt the lhe lawaw ii)

ii) JudJudiciiciar# ar# < to i< to intenterprrprete tete the lahe laww iii)

iii) LegLegislatislature < ure < to mato mae the lawe the law

II) D$trin! $* S!arati$n in

India-II) D$trin! $* S!arati$n in India- In India, the doctrine o In India, the doctrine o separation cannot claim an#separation cannot claim an# historical %acground. he doctrine o separation o powers has also not

historical %acground. he doctrine o separation o powers has also not %een accorded a%een accorded a constitutional status. In the constituent Assem%l#, ro. =. . Shah, who was a mem%er o the constitutional status. In the constituent Assem%l#, ro. =. . Shah, who was a mem%er o the 5onstituent Assem%l# made a proposal to incorporate the doctrine o separation o

5onstituent Assem%l# made a proposal to incorporate the doctrine o separation o powerspowers into the constitution, %ut the Assem%l# did not accept it.

into the constitution, %ut the Assem%l# did not accept it.

 hough, the doctrine o power

 hough, the doctrine o powers, in its a%solute, rigidit#, is not inera%le rs, in its a%solute, rigidit#, is not inera%le rom theom the provisions o the constitution, Article >9 o

provisions o the constitution, Article >9 o the constitution provides that thethe constitution provides that the state should tae steps to separate &udiciar# rom the

state should tae steps to separate &udiciar# rom the e$e$ecutive in all the ecutive in all the statesstates o the ?nion. 4ut even then it cannot %e said that Art >9

o the ?nion. 4ut even then it cannot %e said that Art >9 have incorporated thehave incorporated the whole doctrine. Indian 5onstitution has not indeed recognized the doctrine o whole doctrine. Indian 5onstitution has not indeed recognized the doctrine o separation o powers in its

separation o powers in its a%solute rigidl# %ut the unctions o the a%solute rigidl# %ut the unctions o the di-erentiateddi-erentiated parts or %ranches o the

parts or %ranches o the government have %een su@cientl# di-ergovernment have %een su@cientl# di-erented andented and conse/uentl# it can %e ver# well said

conse/uentl# it can %e ver# well said that our constitution does not contemplatethat our constitution does not contemplate assumption %# one organ or part o the

assumption %# one organ or part o the state o unctions that essentiall#state o unctions that essentiall#

S%&'!t - Administrati! S%&'!t - Administrati! La"

La" DOCTRINE O SE0ARATION O

DOCTRINE O SE0ARATION O 0OWERS

Class -LL.B (HONS.) IV SEM.

E2aml! ! resident o India

i) Legislative power  Article B8C (rdinance), 819 (eace), C>E (3achiner# Failure) o 5I. ii) Judicial power  Article B9C (Dis/uali# 3em%er o arliament) o 5I.

iii) Administrative ower  ;$ecutive ead

III) M$d!rn Vi!"- 4ut now the trend o the Supreme 5ourt regarding the doctrine o separation o powers has %een change. In the historic case =esvanand 4harati 7s. State o =erala, BGEC the 5ourt changed its view and held that %oth the supremac# o the constitution and

separation o powers are

parts o the %asis structure o the Indian 5onstitution.

IV) 0rinil!s $*  

S!arati$n $* 0$"!r

-;$ecutive, legislature, &udiciar# should %e independent o each other S%&'!t - Administrati! La"

0o one organ should perorm unction that %elongs to other

V) Cas! La"s

-Delhi Laws Act, BG>B

2ama Java#a 7s. State o un&a%, BG>>

iii) 2amrishna Dalmi#a 7s. Justice  endular, BG>G iv) Indira :andhi 7s. 2a&nara#an Singh, BGEC

R3LE O LAW

I) R%l! $* La"- he term "he 2ule o Law+ is derived rom the Latin phrase "La legalit#+, which reers to a government %ased on principles o law and not o man. In this sense the concept o Hla legaliteH was opposed to ar%itrar# powers. ;dward 5oe originated this concept when he said that the ing must %e under the :od and Law and thus vindicated the supremac# o law over the pretensions o the e$ecutive.

-R%l! $* La" an %s!d in t"$ s!ns!s

Ideological senses

hen the term 2ule o Law is used in ormalistic sense, it denotes to an organized power as opposed to a rule %# one man. hen it is used in ideological sense, it denotes to the

regulation o the citizens and the government.

Dice#Hs views on 2ule o Law have %een criticized %# the modern writers. It is o%served that Dice# misconceived the administrative law in France. e

ignored the realities in ;ngland and misinterpreted the situation in France. e was also not right when he saw that there is no administrative law in ;ngland %ecause even during his time 5rown and its servants en&o#ed special

privileges on the parts o the doctrine that "=ing can do not wrong.+ Later on Dice# recognized his mistae %# o%serving that there e$ists in ;ngland a vast %od# o administrative law.

S%&'!t - Administrati! La" La" C$ll!#! Class -LL.B (HONS.) IV SEM.

V

l .V

Class -LL.B (HONS.) IV

SEM. S%&'!t - Administrati!La"

III) R%l! $* La" in India- (B) In 6!saanand Barati Vs Stat! $* 6!rala, the view was that the 2ule o Law is a %asic intent o the H5onstitution apart rom democrac#.

(8) In Indra ,andi Vs RA7 Narain. Mat!". 7. $&s!r!d8 Hhe rule o law postulates the pervasiveness o the spirit o law that throughout the whole range o government is the

sense o 

e$cluding ar%itrar# o@cial action in the sphere he provisions o the 5onstitution were enacted with

a view to ensure the rule o law.

IV) M$d!rn $n!t $* R%l! $* La" is *$rm%lat!d &4 Int!rnati$nal C$mmissi$n $* 

 7%rists-V) C$nl%si$n- he a%ove discussion clearl# shows that the recent &udgments o the ighest 5ourt o India as well as igh 5ourts e$hi%it a new approach to the concept o rule o law %# emphasizing the air pla# and &ustice in ever# wal o administrative action and access to  &udicial remedies or all including sociall# and economicall# weaer sections o the societ#.

 . In legislation K iomicall# wea R%l! $* La" In 5riminal procedure In Judiciar#

I) D!l!#at!d L!#islati$n- Austin sa#s, "here can %e no law without a legislative act.+ 4ut when the Legislature, under the pressure o wor delegates the legislative power, it results in delegated

legislation.

HDelegate legislationH is used in two senses. In one sense delegated

legislation means the e$ercise o the power o rule maing, delegated to the e$ecutive %# the legislature. In the second sense, it means the output o the e$ercise o that power, viz. rule, regulations, orders, ordinances etc. he e$pression is used were in %oth senses. here the emphasis is on the limits o constitutionalit# o e$ercise o such power, the term is used in the frst sense * where the emphasis is on the output o the concrete rules the term is emplo#ed in the second sense.

In sample words, delegated legislation reers to all law maing %# the authorities other than the legislature i.e., the 5entral :overnment, the State :overnment, 5entral 4oard o 2evenue and the other administrative %odies and is generall#

e$pressed as statutor# rules and orders, regulations, %#!laws, scheme directions or notifcations etc.

II) Nat%r! and S$! $* D!l!#at!d

L!#islati$n-0ow!a da#, the arliament passes onl# a seleton and the rest o the parts is let on the administrative agencies to provide through the rule maing power delegated to them. For e$ample the Import and ;$port (5ontrol) Act, BG1E contains onl# eight sections and

delegates the whole power to the administrative agenc# to regulate to the whole mechanism o import and e$ports.

III) E2t!nt $* D!l!#at!d L!#islat%r! 0$"!rs- An e$ecutive authorit# can %e authorized to modi# either e$isting or uture laws %ut not in an# essential eature, while e$erting its delegated legislative powers. ;$actl#, what constitutes an essential eature cannot %e enunciated in general te rms. 4ut this much is clear that it cannot include a change o polic#. hen a Legislature is given plenar# powers to legislate on a particular su%&ect there must also %e an implied power to mae law incidental to the e$ercise o such power. It is a undamental principle o constitutional law that ever#thing necessar# to the e$ercise o a power in include in the grant o the power. he primar# dut# o law!maing has to %e discharged %# the legislate itsel, %ut delegation ma# %e restored to as a su%sidiar# on an ancillar# measure.

IV) ,r$"t Hist$r4 $* D!l!#at!d L!#islati$n- he Statute o proclamation, B>CG which was

repealed in B>1E was perhaps the most striing piece o legislation e-ected %# a arliament. ?nder it enr# 7III was given wide power to legislative %# proclamation. he ne$t instance was Statute o Sewers in B>CB where Legislative powers were delegated to the 5ommissioner o Sewers, who was empowered to mae drainage scheme and lev# rates on land owners. hese were outstanding earl# e$amples o a techni/ue which the arliament has alwa#s elt a%le to use.

La" C$ll!#!

Class -LL.B (HONS.) IV SEM. S%&'!t - Administrati! La" Class -LL.B (HONS.) IV

SEM. S%&'!t - Administrati!La"

4ut it was not the realm o delegation and such were the rare instances and it was not until eighteenth centur# that we have signifcant development in the realm o delegation. As 3aitland sa#s, "he period %eore Bth centur# was the period o private laws a period when arliament legislated in such detail that man# o its measures would toda# %e matters o administrative instructions.+

 he growth o modern delegated legislation is usuall# dated rom BMC1, when the oor Law Amendment Act gave to the oor Law 5ommissioner, who had no responsi%ilit# to arliament, "power to mae rules orders or the management o the oor.+ his power which lasted or a centur# remained a leading e$ample o delegation which put, not merel# e$ecution %ut also the ormulation o polic# into e$ecutive hands. 4ut this was a small instance o e$periment in %ureaucratic :overnment. It did not invoe an# criticism until later part in the centur#. he pu%lication o all delegated legislation in uniorm series under the title o Statutor# 2ules and rders %egan in BMG9 and in BMG> the 2ules u%lication Act made provisions o s#stematic printing, pu%lication and pu%lic notice. In BMGB, or instance, the Statutor# 2ules and rders were more than twice as e$tensive as the statute enacted %# the arliament. Laisse aise

state o BGth centur# had given place to social welare state o the First orld ar Deence o  the 2ealm Act, BGB1. Social progress ater BG18 complete separation o owers was not

possi%le, act. B8C Art. 819. Art. C>E. Art. B1C.

V) T4!s $* D!l!#at!d L!#islati$n- n the %asis o the nature o Delegated Legislation the 5ommittee on 3inisterHs powers distinguished the ollowing two t#pes o parliamentar# delegation* T4!s $* D!l!#at!d L!#islati$n

   i J ' 0ormal Delegation VI) S%&$rdinat! L!#is ;$ceptional Delegation

In su%ordinate legislation the process consists o discretionar# ela%oration o rules and

regulations. In ;ngland the power o the arliament are supreme as such all the

legislation other than those made %# 4ritish arliament are recognized as su%ordinate. Su%ordinate legislation has its origin in the delegation o the power o arliament to

inerior authorities and are su%&ect to control o the sovereign legislation.

99999999999999999999999999999999999999 y 

T4!s $* S%&$rdinat! L!#islati$n

(i) 5olonial Legislation

(ii) ;$ecutive

(iii)3unicipal

(iv)Judicial

(v) Autonomous

$* S%&$rdinat! L!#islati$n

5olonial Legislation! he legislation %# the sel government %odies lie colonies and other dependence o the 5rown are regarded as colonial legislation. he legislative powers o such %odies are su%&ect to the control o the Imperial Legislation.

;$ecutive! hough the main unction o the ;$ecutive is to administer, %ut it has %een

provided with certain su%ordinate legislative powers which have %een e$pressl# delegated to it %# arliament, or pertain to it %# the 5ommon Law Statute.

) 3unicipal! 3unicipal authorities are entrusted %# the law with limited and su%ordinate powers o esta%lishing special or the districts under their control. he special laws so! esta%lished %# the 3unicipal authorities are nown as* 4#e!laws+, and this t#pe o legislation is nown as municipal.

 Judicial! In ;ngland the &udicature also possesses the lie delegated legislative powers. he higher courts are empowered to mae rules or the regulation o their own procedure.

Autonomous! hough the great %ul o enacted laws is promulgated %# the State' the autonomous %odies have %een entrusted with a power to mae %#e!laws or its regulation. VII) T! $nstit%ti$nal limits $* L!#islati!

d!l!#ati$n-legislative delegation!

T! $nstit%ti$nal limits $* L!#islati! d!l!#ati$n

(i) he power o delegation is su%&ect to certain limitations the legislature cannot delegate essential legislative unctions which consist in determining the legislative polic#.

 he ollowing non!essential unctions ma# %e delegated!

(a) he power to e$tent the duration o the statutes, having regard to the local conditions. (%) he power to adopt the e$isting statutes, with the incidental changes in the

name, place etc. and to appl# them to a new area, without modi#ing the underl#ing polic# o the statute.

(c) he power to promulgate rules i such rules to %e laid %eore the arliament %eore the# would come into orce.

(d) he power to select persons on whom the ta$ is to %e laid, to determine the rates or di-erent classes o goods or to amend the schedule o e$emptions. (ii) the power conerred on an su%ordinate authorit# should not su-er rom e$cessive

delegation and whether the power so conerred su-er rom e$cessive delegation should %e decided with reerences to the act whether the delegation has gone %e#ond the limits o permissi%le delegation.

VIII) C$nditi$nal

L!#islati$n-W!n an ar$riat! l!#islat%r! !nats a la" and a%t$riti!s an $%tsid! a%t$rit4 t$ &rin# it int$ *$r! in s% ar!a $r at s% tim! as it ma4 d!id!: tat is $nditi$nal l!#islati$n.

r!;%!ntl4 t! l!#islat%r! !nats a la" $nditi$nall4 l!ai n# it t$ t! E2!%ti! t$ d!id! as t$-(i) W!n "ill it $m! int$ *$r!8

(ii) T! !ri$d d%rin# "i it is t$ &! iml!m!nt!d $r s%s!nd!d 8 and (iii)T! la! "!r! it s$%ld &! ali!d.

In $t!r "$rds: C$nditi$nal L!#islati$n ma4 &! d!<n!d as a stat%t! tat r$id!s $ntr$l &%t s!i<!s tat t!4 ar! t$ #$ int$ !=!t $nl4 "!n a #i!n administrati! a%t$rit4 <nds t! !2ist!n! $* $nditi$ns d!<n!d in t! stat%t! its!l*. T! $!rati$n $* la" *$ll$"s t! *%l<llm!nt $*  t! $nditi$n. ,!n!rall4 t! dat! $* t! $mm!n!m!nt $* an At ma4 &! l!*t !ntir!l4 t$ t! disr!ti$n $* t! ,$!rnm!nt and it is laid d$"n

>It sall $m! int$ *$r! $n s% dat! as t! C!ntral ,$!rnm!nt ma4 &! n$ti<ati$n in t! O?ial ,a@!tt!

T4!s (i)

Class -LL.B (HONS.) IV SEM.

I) Disadanta#!s $* D!l!#at!d

L!#islati$n-Disadanta#!s $* D!l!#at!d L!#islati$n

 he procedural control mechanism operates in ollowing three components*! (i) rior consultation o interests liel# to e a-ected %# delegated legislation. (ii) rior pu%licit# o proposed rules and regulations

(iii)ost!natal pu%licit# o delegated legislation

(a) 0arliam!ntar4 C$ntr$l $!r D!l!#at!d L!#islati$n (i) 4# la#ing the rules on the ta%le o arliament' and

(ii) 4# a 5ommittee o arliament acrutinishing the rules so laid.

In ?.S.A. the control o 5ongress over delegated is ver# limited %ecause neither the techni/ue o Hl#ingH is e$tensivel# used nor there is an# 5ongressional 5ommittee to scrutin# it.

In ;ngland, due to concept o supremac# o arliament, the control e$ercised %# the arliament over and administrative rule maing is ver# %road and e-ective. his arliamentar# control operates though Hla#ingH techni/ues. ?nder the provisions o statutor# Instruments Act, BG1, all administrative rule maing is su%&ect to the control o the arliament through the Select 5ommittee on statutor#

Instruments.

In India, the arliamentar# control o delegated legislation ollows the same patterns as in ;ngland. Lie Standing 5ommittee in ouse o 5ommons in 4ritain he urther said that such committee would

e$amine delegated legislation and would %ring to the notice o arliament whether delegated

legislation has e$ceeded the original intention o arliament or has departed rom it or has a-ected an# undamental principle.

(i) 4# la#ing rule on the ta%le o arliament ' and

(ii) 4# a committee o arliament scrutinizing the rules so made.

S%&'!t - Administrati! La"

Class -LL.B (HONS.) IV SEM.

(ii) B a $mmitt!! $* 0arliam!nt sr%tini@in# t! r%l!s s$ mad!  he main unction o these committees is to e$amine the merits o the

e$ecutive legislation against which petitions are presented.

Main *%nti$ns $* C$mmitt!!s - According to 2ule 88C, the main unctions o the 5ommittee shall %e to e$amine*

(a) hether the rules are in accordance with the general o%&ects o the Act'

(%) hether the rules contain an# matter which could more properl# %e dealt the Act'

(c) hether it contains imposition o ta$'

(d) hether is directl# or %ars the &urisdiction o the 5ourt'

(e) hether it is retrospective'

() hether it involves e$penditure rom the 5onsolidated Fund'

(g) hether there has %een un&ustifed dela# in its pu%lication or la#ing'

(h) hether, or an# reason, it re/uires urther elucidation. La" C$ll!#! S%&'!t - Administrati! La" (a) (%) (c) (d) (e) B4 lain# r%l! $n t! ta&l! $* 0arliam!nt La#ing with no urther direction La#ing su%&ect to annulment La#ing, Su%&ect to a@rmative resolution La#ing with deerred operation

La#ing with

immediate e-ect %ut re/uiring a@rmative resolution as a

condition or

According to 5=;!Discretion is a science o understanding to discern %etween alsit# and truth, %etween right and wrong, and not to do according to will not private

a-ection. his power should %e e$ercised independentl# %# the authorities concerned according to their own assessment.

It should %e noted that a statute conerring discretion usuall# uses the words Hade/uateH, Hadvisa%leH, HappropriateH, H%enefcialH, HcompetentH, HconvenientH, He$pedientH, He/uita%leH, HarH, Hreasona%leH, Hpre&udicialH, to saet# an Hsecurit#H, HdetrimentalH, Hnecessar#H, HwholesomeH, Hpu%lic purposeH, etc. or other opposite. All these words involve matter o degree.

Again an administrative discretion must not %e ar%itrar# or vague %ut le gal and regular. In ;ngland even the reusal o e$ercising discretionar# power, where it

imposes a dut# to e$ercise it, gives rise a lia%ilit# to damages. 4ut in India, there is no such law.

4ut no dou%t, an authorit# ma# %e compelled in India to e$ercise his discretion where he has %een e$pressl# with such power, through courts.

II) Administrati! Disr!ti$n and %ndam!ntal Ri#ts- Articles BC to C> o the constitution o India has guaranteed certain undamental rights to the people. I the law coners and wide

discretionar# power on an administrative authorit# which inringes the undamental rights guaranteed under the 5onstitution then such law ma# %e declared ultravires. Articles C8, 88 and 88E o the

constitution o India contain strong power to control the administrative authorit# i the# e$ceed the limit or a%use the powers given to them. he courts have use the undamental rights as a tool to

control to some e$tent either %estowal o discretionar# power on the administration or manner o their e$ercise.

Artil! 1

Article B1 o Indian 5onstitution declares that "state shall not den# to an# person e/ualit# %eore law and e/ual protection o the laws throughout the territor# o India.+ hus this Article speas a%out the "e/ualit# %eore law and e/ual protection o the laws.+ In addition to this provision the right to e/ualit# has %een again accepted under Arts B> and B. ?nder Article B> there is a provision or the prohi%ition o discrimination on the ground o religion, race, caste, se$ or place o %irth. ?pon these grounds state shall not impose an# lia%ilit# or disa%ilit# o an# ind. Similarl# under article B e/ualit# o opportunit# has %een granted to all citizens in the matters o pu%lic emplo#ment. ;/ualit# %eore law ;nglish

concept. ;/ualit# %eore law simpl# prohi%its class legislation, it does not prohi%it classifcation. ;/ual protection clause is part o American 5onstitution also.

0ainsuhds 7s State o ?.., it was held that a law which provided or election on the %asis o separate electorates or mem%ers o di-erent religions and communities was unconstitutional.

Administrati! disr!ti$n and Artil!

1- here are seven undamental rights guaranteed to the citizens o India under Article, BG, which are as ollows*

(a) Freedom o speech and ;$pression (i) Freedom o Assem%l#

Class -LL.B (HONS.) IV SEM. S%&'!t - Administrati! La"

Class -LL.B (HONS.) IV SEM. (iii)Freedom to orm Association (iv)Freedom o 3ovement

(v) Freedom to reside and to settle

(vi)Freedom to ac/uit, hold and dispose o propert#

(his undamental right has %een omitted %# 5onstitution 11th Amendment Act BGEM) (vii) Freedom o proession, occupation, trade

or %usiness.

 he restriction on act! BG must %e constitutionall# valid and must satis# the ollowing two tests*

(i) he restriction must %e or the purpose mentioned in clause 8 to  o Article BG.

(ii) he restriction must %e reasona%le.

 he reasona%le restrictions are open to &udicial review.

III) 0r$isi$ns $* 7%diial $ntr$l $!r administrati! ats- In India, the provisions o &udicial can %e grouped into ollowing three heads*

(1)C$nstit%ti$nal- Article C8, 88, 88E o 5I.

(+)Stat%t$r4 R!i!"- here are some acts which provide or an appeal rom statutor# tri%unal to the igh!5ourt on the point o law or e$ample ormenHs 5ompensation Act BG8C.

()Ordinar4 $r E;%ita&l!- he ollowing are the ordinar# or e/uita%le modes to control an administrative discretion.

(a) In&unction (%) Declaration

(c) Suit or damages. (a) In'%nti$n- A Judicial

process %# which one who has invaded or is threatening to invade the rights legal or e/uita%le o another, is restrained rom continuing or committing such wrongul act. In&unction section C to 18 o the Specifc 2elie Act BGC.

2egulate %# the 5ode o 5ivil rocedure BG9M (Se CE o the Specifc 2elie Act.) retrain rom doing, a particular thing until the suit is disposed o or until urther orders o the 5ourt. An interlocutor# application, preserve the status Nuo pending trial and &udicial discretion o the court.

(&)D!larati$n Ati$n - A declarator# action denotes a &udicial remed#, which conclusivel#

determines the rights and o%ligations o pu%lic and private persons and authorities, without the addition o an# coercive decree. It is merel# a defnition o rights and o%ligations. It does not prescri%e an# urther relie nor an# sanction against the deendant. It simpl# results in the removal o the e$isting dou%ts regarding the legal rights o the plainti-.

() S%it *$r dama#!s - henever an# wrong is done to an individual %# some wrongul negligent acts o the pu%lic authorities, such individual ma# fle a suit or damages against such

authorit#O he principles determining the /uantum o damages are the same that govern the private individuals. S%&'!t - Administrati! La"

O.

Class -LL.B (HONS.) IV SEM.

IV) ,r$%nds t$ all!n#! administrati! disr!ti$n - In India, the provisions o &udicial can %e grouped into ollowing three heads*

,r$%nds t$ all!n#! administrati! disr!ti$n

V

Lac o procedural e$pectation Ar%itrar# use o discretionar# power

OS

_r 

. f O'

V) Cas! La"s -P

$r r!*!r!n! - Q

i) 2D Shett# 7s. International Airport Authorit#, BGEG ii

) immatlal 7s. olice 5ommissioner, Ahmada%ad, BGEC !!!!!!!!!!!!!!!!!!

Class -LL.B (HONS.) IV SEM.

I) Administrati!

Tri&%nals

Administrative ri%unals are agencies created %# specifc enactments to ad&udicate upon controversies that ma# arise in the course o the

implementation o the su%stantive provisions o the relative enactments. ?nlie that o the court which is parts o the traditional &udicial s#stem o a countr#, the &urisdiction o administrative tri%unal is not general. 4ut specifc, the courts, nown to Anglo!sa$on &urisprudence would entertain suits,

ranging or a simple claim or recover# o de%t to complicated issues o law and acts, %ut e$cluding the vires o legislation. Administrative ri%unals are solel# /uasi!&udicial unctions.

It should %e noted that an administrative %od# will %e administrative tri%unal onl# when that %od# is constituted %# the state and is vested with some  &udicial powers o the state. he tri%unals are generall# given the power o a

civil 5ourt en&o#a%le under the code o 5ivil rocedure in the matters o summoning witness, compulsor# production and discover# and documents, receiving o evidence on oath and on a@davit, issuing commissions etc.

Carat!ristis $* Administrati! tri&%nals

(i) hat the# are esta%lished %# the e$ecutive under the provisions o statute. (ii) hat though the# are re/uired to act &udiciall#, the# perorm

/uasi!&udicial unctions.

(i) hat the# are independent and imperial and wor without %eing inRuenced %# the :overnment.

(ii) hat the# have the powers o 5ivil 5ourts in certain matters and their proceeding %# the considered to %e &udicial proceedings. (iii)hat the# are re/uired to ollow the principles o natural &ustice in

deceiving the cases.

(iv)hat the# are not %ound to ollow the technical rules o the procedure and evidence prescri%ed %# the civil procedure 5ode and ;vidence!Act.

(v) hat the# are not courts in proper sense o terms.

Ill) Di=!r!n! &!t"!!n Administrati! Tri&%nal and

C$%rt- he main distinction %etween the court and an administrative tri%unal lies in the law polic# distinction. 4ecause the court frst ascertains acts and applies law to these ast as such the unction or a &udge is lie as solt machine! controlled act fnding and controlled application o 

S%&'!t - Administrati! La" La" C$ll!#! ADMINISTRATIVE TRIB3NALS II) Carat!rist Administrative tri%u

law. n the other hand, an Administrative ri%unal proceeds with a controlled act

fnding and an uncontrolled application polic#.

 Secondl#, there is no uniorm procedure which the administrative tri%unals are re/uired to ollow e$ercising ad&udicator# powers, whereas the 5ourts ollows a uniorm, f$ed statutor# procedure,

 hirdl#, the 5ourt e$ercises onl# &udicial unctions whereas Administrative ri%unals undertae various other administrative unctions.

 Fourthl#, tri%unal is wider than 5ourt. All 5ourts are tri%unals %ut all tri%unals are not courts.

IV) R!as$n *$r d!!l$m!nt Administrati! Tri&%nal

(B) he procedure adopted %# the 5ourt is ver# much technical and the approaches o the 5ourts are highl# individualistic and ritualistic.

(8) Secondl#, a litigation %eore a 5ourts o Law is time consuming T costl#. (C) hirdl#, the administrative ad&udicator# s#stem came into e$istence with

intent to carr# out o the modern governmental plans o pu%lic health, education, planning, social securit#, transport, agriculture, industrialization and national assistance and to provide a s#stem o ad&udication which was inormal, Re$i%le, cheap and rapid.

V) ,r$"t in

India- he necessities o modern collectivist socialist state economic programme aspects o human lie, dela# in civil proceedings, in the technicalit# o disputes an &ustice and economic resulted in

vas prolieration o powers o administration, regulating human activities in multiarious wa# which ultimatel# resulted in the growth o innumera%le /uasi!&udicial %odies. hese tri%unals are esta%lished the law, although its mem%ers are appointed %# the :overnment. It decides the matters while acting &udiciall#, ree rom the technical rules o procedure and evidence o  a court o law eeping ull# in view the social needs accepted pu%lic polic#.

It should %e noted that administrative tri%unals are constitutionall# recognized under Article C8, BC,88 and 88E o 

the constitution o India. VI) D!m!rits $* Tri&%nals

1. T! ari!t4 $* administrati! tri&%nals as #r$"n li! m%sr$$ms in t! rain4 s!as$n. +. N$ %ni*$rm s4st!m $* a!al a#ainst t! d!isi$ns $* tri&%nals. M!dial C$%nil $* India: C!ntral

,$!rnm!nt.

T! t!nial r%l!s $* Eid!n! A d$ n$t al4 t$ administrati! tri&%nals.

>A $%rt $* n$ a!al as &!!n %t in t! ands $* m!n "$ ar! #!n!rall4 n!it!r ;%ali<!d la"4!rs: ma#istrat!s n$r '%d#!s.>

In India: !2!t in t! as!s $* iil s!rants: in all disilinar4 r$!!din#s t! *%nti$ns $* r$s!%t$r and t! '%d#!s ar! !it!r $m&in!d in $n! !rs$n $r in t! sam! d!artm!nt "i is in i$lati$n $* t! rinil!s $* nat%ral '%sti!.

S$m!tim!s: n$ $n! n$"s *r$m "!r! t! d!isi$n $m!s. In ,. Na#!s"ara Ra$ Vs. A.0.S.R.T.C. 1F: as! "as n$t &!ar!d &4 t! a%t$rit4 *r$m "$m ! r!!i!d t! $mm%niati$ns. Tis diid!d r!s$nsi&ilit4: "!r! $n! !ars and an$t!r d!id!s is a#ainst t! $n!t $* *air !arin#.

G. In an4 disilinar4 r$!!din# t! r!s%mti$n is $* #%ilt rat!r tan inn$!n!. . O?ial $r d!artm!ntal &ias is $n! $* m$st &%=!rin# r$&l!ms $* administrati! la". . T! administrati! tri&%nals ar! n$t r!;%ir!d t$ #i! r!as$ns *$r t!ir d!isi$ns.

Class -LL.B (HONS.) IV

SEM. S%&'!t - Administrati!La"

me o the state covering all the isputes and growing demand o 

A

In India: t!r! is n$ la" t$ !liminat! t! dan#!rs in!r!nt in $=-t! r!$rd $ns%ltati$n &4 an administrati! a%t$rit4.

VII) T4!s $* Administrati! Tri&%nal

T4!s $* Administrati! Tri&%nal Income!ta$ Appellate ri%unal

Industrial ri%unal 2ailwa# 2ates  ri%unal 5op# 2ight 4oard % 5laim ri%unal ;lection ri%unal etc.

Class -LL.B (HONS.) IV SEM.

III) D$trin! $* A%di Alt!ram 0art!m- Doctrine o Audi Alterm altem is undamental rule o natural &ustice which denotes Hright to %e heardH. he doctrine o Audi alteram partem signifes the act that no man should %e condemned unheard. It is said that even Adam and ;ve were given the %eneft o this %#

S%&'!t - Administrati! La"

La" C$ll!#!

0RINCI0LES O NAT3RAL  73STICE

I) 0rinil!s O* Nat%ral  '%sti!

-"0atural Justice+ is a concept o common law and signifes certain undamental rules o  &udicial procedure. he %ranch o principles o 0atural Justice will prevent &ustice rom

%eing seen to %e done.

o

in i$r*

Nat%ral 7%sti!J as &!!n %s!d as r!*!rrin# t$ t! *$ll$"in# t"$ im$rtant rinil!s8

0rinil!s $* Nat%ral '%sti!

r

  

6L

Audi alteram partem (the rule o air

hearing)

2ule against 4iasness

0emo Jude in causa mapotest (no one should %e a &udge in his own

cause)

2ule o 4eing eard

   P s   P

II) R%l! a#ainst Biasn!ss- 2ule against 4iasness denotes than an administrative authorit# acting in a /uasi &udicial manner must %e impartial, air and ree rom %iasness.

Class -LL.B (HONS.) IV

SEM. S%&'!t - Administrati!La"

the Almight# %eore the# punish or diso%e#ing is 5ommand. Since the reason o the rule is that part# shall have an ade/uate opportunit# o re%utting the case against him it might %e that this notice ought to inorm the part# o the case which has to meet.

In Rid#! s. Bald"in , the appellant was a chie consta%le. e was dismissed %# the atch 5ommittee under Section BGB (1) o the 3unicipal 5orporation Act, BMM8. his decision o dismissal was taen %# the 5ommittee in his a%sences and even without giving him charge sheet. he action was challenged on the ground that the committee passing the order o dismissal, did not o%serve the principle o natural and the whole action was taen without given him an opportunit# o %eing heard. he 5ourt o appeal dismissed the action and held that the atch 5ommittee was not %ound to ollow the principle o natural &ustice.

IV) E2!ti$n t$ t! R%l! $* A%di Alt!ram

0art!m-?nder the ollowing circumstances the application o the rule o Audi alteram artem ma# %e e$cluded wholl# or partl#!

(i) here the unctions o an authorit# concerned have %een held not to %e  Judicial.

(ii) here the unction o an authorit# have %een held to %e polic# oriented. (iii)here prompt action, preventive or remedial is needed due to

emergenc# situation.

(iv)here the power e$ercised is disciplinar# one, the rule audi alteram artem does not appl#.

here the process o air hearing would %e pre&udicial to pu%lic interest the rule alteram partem is e$cluded. Such situation ma# cover the cases o Deence or

state secrets.  J

a 6risna Vs. Osmania 3ni!rsit4: the universit# cancelled the whole 3. 4. A.

V) Cas! 999999999999999999999999999999999999999999 99

entrance e$amination %ecause o mass cop#ing. he decision o the universit# was

challenged o the ground that the candidates were not given a hearing. It was held that notice and hearing to all candidates is not possi%le in this ind o action which is taen as

disciplinar# measures to solve a pro%lem which has assumed national social proportion. UUU

I) Om&%dsman- the increasing discretionar# powers o the administration in the modern welare State a-ect the da# to!da# lie o the people. his tremendous increase in the discretionar# powers o

administration has generated the possi%ilities o misuse o the powers %# administration at the same time. he complaints o mal!administration, corruption, nepotism, administrative ine@cienc#,

negligence, %ias etc. have increased. It was elt necessar# to evolve an ade/uate and e-ective mechanism to eep the administration under control. And this search has produced the idea o

"Om&%dsmanJ which means a "watch dog o the administration+ or "the protector o the little man+  his institution o "m%udsman+ was frst developed in Sweden in BM9G. Lateron it was copied %#

0orwa# and 0ew Veeland in BG8.

3ni;%! arat!ristis $*

Om&%dsman-(i) he m%udsman is an independent and non!partisan o@cer o the legislative who supervises the administration.

(ii) e deals with specifc complaints rom the pu%lic against. Administrative in&ustice mal! administration, (or ma# proceed on his own inormation in similar circumstances).

e has the power to investigate, criticize and report %ac to the legislature, %ut not to reserve administrative action.

dia- In all India Law#ers 5onerence held in BG8, sri 3.5. Setalvad gave the idea o esta%lishing an institution similar to that o an m%udsman. In BG, the Administrative 2eorms 5ommission recommended the o@ce o Lopal similar to that o the m%udsman or the ollowing reasons!

(i) Since a democratic :overnment is a :overnment o the people, %# the people and or the people, it has an o%ligation to satis# the citizen a%out its unctioning and to o-er them ade/uate means or the ventilation and redress o their grievances.

(ii) he e$isting institution o &udicial review and arliamentar# control are inada/uate in view o ever e$panding range o :overnmental activities, most o which are discretionar#.

n the %asis o the recommendation made %# the Administrative 2eorm 5ommission the Lopal and Loaa#uta 4ill was prepared %# the :overnment and placed in the arliament in BGG %ut it lapsed owning to dissolution o Lo sa%ha.

 he Administrative 2eorms 5ommission, which recommended the @ce o Lopal, ormulated the ollowing principle'

(i) Lopal should %e demonstra%l# independent and impartial.

(ii) is investigations and proceedings should %e conducted in private and should %e inormal in character.

(iii) is appointment should, as ar as possi%le, %e non political.

(iv)is status should %e e/uivalent with the highest &udicial unctions in India.

(v) e should deal with the matters involving acts o in&ustice, corruption and avoritism.  he 4ill defned misconduct %# providing that a pu%lic man will e deemed to have committed

misconduct i he directl# or indirectl# allows his position to %e taen advantage o %# an# o his relatives or associates and %# reason thereo such relative or associate secures an# undue gain or avor to himsel or to another person or cause harm or undue hardship to another person. It urther provided that the pu%lic man will %e lia%le to %e punished i he is motivated %# Hmotives o personal interestH or i he a%uses or attempts to a%use his position to cause harm or undue hardship, to an# other person. ;ven

La" C$ll!#!

Class -LL.B (HONS.) IV SEM. S%&'!t - Administrati! La"

II) 0$siti$n $* Om&%dsma

Class -LL.B (HONS.) IV SEM.

e$!3inisters and e$!3. s. are within the am%it o Loapal i their misconduct is not more than fve! #ears old.

Note

_{: Please refer latest Lokpal BiH/Act.}

III) A$intm!nt $* L$al- According to the Lopal 4ill o BGEE, the Lopal is to %e appointed %# the resident in consultation with the 5hie Justice o India and the speaer o Lo sa%ha and the leader o opposition in the Lo Sa%ha. e is appointed or fve #ears. e can not %e re!appointed or more than ne$t one term nor an# emplo#ment under the :overnment %e given to him ater his term. e can %e removed rom his o@ce during his term onl# on the en/uir# which is to %e held %# a sitting or retired  Judge o the Supreme 5ourt in the same manner as there is provision or the removal o a Judge under  &udges (;n/uir#) Act, BGM. he en/uir# report is to %e placed %eore %oth the house o the arliament

and each house has to pass an address or his removal %# a ma&orit# o its total mem%ership and a ma&orit# o not less than two!third o its mem%ers present and voting.

IV)

K%ali<ati$ns- he 4ills la#s down the ollowing

negative

/ualifcations* (i) e shall not %e a mem%er o arliament or o State Legislature

(ii) I he is holding o@ce o proft or trust, he shall resign %eore he taes charge o the o@ce o Lo pal_.

(iii) I he related to an# political part# he will sever his relations rom it. nagement.

V) Salar4- he salar#, pension and other per/uisites o the Lo pal e/ual to that o the 5hie!Justice!o India.

VI) %nti$ns and 0$"!rs $* L$ al-  he Lo pal ma# investigate an# action taen %# or with the approval o a 3inister or secretar#, %eing action taen in the e$ercise o his administrative unctions, i an# case where!

(a) A written complaint in dul# made to the Lo pal %# a person who claims to have sustained in&ustice in conse/uence o maladministration in connection with such action or who a@rms that such action has resulted in avor %eing undul# shown to an# person or his accrual o persona %eneft or gain to the 3inister or to the secretar#, as the ease ma# %e, or

(%) Inormation has came to his nowledge otherwise than on a complaint under clause (a) that such action is o the nature mentioned in the clause.

VII) Matt!rs n$t "it in t! '%risditi$n $* L$ al- he Lo pal shall not conduct an investigation in respect on an# o the ollowing matters!

(a) Action taen in a matter certifed %# a ?nion 3inister as a-ecting the relations with oreign states'

(%) Action taen under the ;$tradition act BGC or the ForeignerHs Act, BG1'

(c) Action taen or he purpose o investigating crime or protecting the securit# o the state' (d) Action taen or the determination whether a matter shall go to court or not'

(e) Action taen in matters which arise out o the terms o contract governing purel# commercial relations o the administration with customers or suppliers, e$cept where the complaint alleges harassment or gros dela# in meeting contractual o%ligations,

() Actions taen in respect o appointment, removal etc. or pu%lic servants' (g) :rant o honorsH and awards.

VIII) 0r$!d%r!- Investigation shall %e conducted in private and the procedure or conducting an investigation shall %e such as the Lo al considers appropriate in the circumstances o the case.

(iv)I he attends to a proession he will leave it.

(v) I he is carr#ing on an# trade or occupation he will %rea o- his relations with its ma

Class -LL.B (HONS.) IV SEM.

For the purpose o an# such investigation the Lo pal shall have all the powers o a 5ivil 5ourts while tr#ing the suit under the 5ode o 5ivil rocedure, in respect o the ollowing matters!

(a) Summoning and enorcing the attendance o an# person and e$amming him on oath' (%) Discover# and production o documents'

(c) 2eceiving evidence on a@davits'

(d) 2e/uisitioning an# pu%lic record or cop# thereo rom an# o@ce.

C$nt!mt- he proceeding %eore the Lo pal shall %e deemed to %e &udicial proceeding. 4ut he shall have

;ven %eore the introduction o Lo pal 4ill, several states in India enacted the Loa#uta Statute. For e$ample 4ihar, rissa, 3aharashtra, 2a&asthan, amilnadu and ?ttar radesh enacted the Loa#uta States. In BGEG, the State o =arnataa has also adopted this institution.

In ?.., the ?.. Loa#uta and ?p!Loa#uta Act o BGE> was passed. According to this Act, the Loa#uta shall %e appointed %# the :overnor with the consultation o the 5hie  Justice o the igh!5ourt and leader o the opposition in the Legislative Assem%l#. he ?p!

Loa#uta shall %e appointed %# the :overnor in consultation with Loa#uta. he ?p! Loa#uta is su%&ect to the administrative control o Loa#uta.

K%ali<ati$n- he Loa#uta shall %e a person who is or has %een a &udge o the

Supreme 5ourt or a igh 5ourt. he Loa#uta or ?p!Loa#uta should not %e a mem%er o an# Legislature and also should have no connection with an# political part#. e shall not an# o@ce o proft nor should carr# an# %usiness or an# proession.

T!rm- e shall hold the o@ce or fve #ears unless the resigns earlier or is removed rom the o@ce %# the :overnor on the ground o misconduct or incapacit#.

It should %e noted he shall %e removed rom his o@ce su%&ect to the provisions o Art. CBB o the 5onstitution. An en/uir# is to %e conducted %# a &udge o the Supreme 5ourt or o a igh!5ourt and the en/uir# report must %e approved %# at least two!third ma&orit# o each house o state legislature.

Lastl# the Loa#uta or!Loa#uta ma# investigate an# action taen %#! (a) 3inister or a secretar#, or

(%) An# pu%lic servant including a pu%lic servant or this purpose %# the State :overnment. he State :overnment ma# e$clude an# complaint involving a grievance or an allegation made against a pu%lic servant rom the &urisdiction o Loa#uta or ?p!Loa#uta.

 he Loa#uta and ?p!Loa#uta are re/uired to su%mit annuall# a consolidate report on the perormance o their unctions to the :overnor.

Note

_{: Please refer Latest Lokpal BiH/Act} 

S%&'!t - Administrati! La"

S3ITS A,AINST ,OVERNMENT

I) C$ntrat%al Lia&ilit4 $* t! ,$!rnm!nt- Articles 8G1, 8GM, 8GG and C99 o the

constitution o India, deal with the contractual lia%ilit# o the :overnment. Art 8G1 provides or succession %# the present :overnments o the ?nion and the states the propert#, aspects rights lia%ilities and o%ligations vested in the ormer :overnment. Art. 8GM authorizes the :overnment to enter into contracts or the purpose o carr#ing out o the unctions o the State. Article 8GG provides essential ormalities which a :overnment contract must ulfll and Article C99 deals with the procedure and the manner in which suits or proceedings against or %# the :overnment ma# %e instituted.

5lause (B) o Article 8GG which contains the essential ormalities which i government contract must ulfll provides as under*

"All 5ontracts made in the e$ercise o the e$ecutive power o the ?nion or o a state shall %e e$pressed to %e made %# the resident or %# the :overnor o the State, as the case ma# %e, and all such contracts and all assurances o propert# made in the e$ercise o that power shall %e e$ecuted on %ehal o the resident or the :overnor %# such person and in such manner as he ma# direct or authorize+.

In hawardas pherumal and another vs. ?nion o India, BG>> the onH%le Supreme 5ourt has o%served ! "It is well settled that governments can onl# %e %ound %# contracts that are

entered into in a particular wa# and which are signed %# the proper authorit#.

It should %e noted here that a :overnment contract in order to %e valid must also ulfll the re/uirements o section B9 o the Indian 5ontract Act which deals with the essentials o a valid contract, %eside ulflling the re/uirements o Art, 8GG (B) o the constitution. Similarl# sections EC, E1 o the Indian 5ontract Act which contain the rinciples or determining the /uantum o damages also appl#.

II) Aliati$n $* t! d$trin! $* "ai!r t$ t! ,$!rnm!nt

$ntrat-Since the re/uirements o Art, 8GG are mandator#' these cannot %e waived %# the :overnment.

0riil!#!s $* t! ,$!rnm!nt %nd!r t! Ciil 0r$!d%r! C$d! and Eid!n! At-?nder 5ivil rocedure 5ode, the privilege availa%le to the :overnment as

compared to an individual is under section M9 o the 5ivil rocedure 5ode

according to which no suit shall %e instituted against the :overnment or against a pu%lic o@cer in respect o an# act purporting to %e done % such pu%lic o@cer capacit#, until the e$piration o two months ne$t ater notice in writing in the manner provided in the section.

III) Lia&ilit4 $* t! ,$!rnm!nt *$r T$rt- ;nglish law!he immunit# o the 5rown rom an# civil 5riminal lia%ilit# is %ased upon an ancient and undamental principle o the ;nglish

5onstitution that "he =ing can do no wrong+. ;arlier an action or a personal wrong will not lie against the soverei gn. As such the crown cannot %e sued or the tortuous acts o its servant.

Indian Law. In India the lia%ilit# o the :overnment or the torts o their servants was La"

accepted /uite earlier than in ;ngland. In p. T o. Steam 0avigation 5o. 7s. he Secretar# o State or India it was held that the :overnment is lia%le or the tortuous act o its servants.

Class -LL.B (HONS.) IV SEM.

According to Article C99 o the Indian 5onstitution, the :overnment o India and a State :overnment ma# sue and %e sued in relation to their respective a-airs in the lie cases as ?nion o India and the corresponding rovinces or Indian Sates might sue or %e sued i the constitution had not %een passed.

In =asturi Lal vs. State o ?.., the Supreme 5ourt o%served!

"I a tortuous act is committed %# a pu%lic servant and it given a rise to a claim or damages, the /uestion to as was a tortuous act committed %# a pu%lic servant in discharge o

statutor# unction which are preera%le to, and ultimatel# on %ased on the delegation o the sovereign powers o the state to such pu%lic servantW I the answer a@rmative, the action or damages or loss caused %# such tortuous act will not lie, on the other hand i the tortuous act has %een committed %# a pu%lic servant in discharge o duties assigned to him not %# virtue o the delegation o an# sovereign power, an action or damage would lie. he act o pu%lic servant committed %# him during the course o his emplo#ment is, in this categor# o

cases, an act o a servant who might have %een emplo#ed %# a private individual or

S%&'!t - Administrati! La"

73DICIAL REVIEW

I)  '%diial R!i!" in En#land- In ;ngland the administrative law is concerned with the actual woring o the government machiner# and the greater part o it has never come %eore the courts or interpretation. Ater the passing o the Administrative o Justice (3iscellaneous rovisions) Act, BGCM, does not alter the principles o law upon which prerogative writs were issued.

II)  '%diial R!i!" in

India-In India-India the 5ourts occup# e# position as regards the &udicial control o

administrative action. ur 5onstitution guarantees certain undamental rights enumerated in Articles BC to C> o the 5onstitution. hese rights provide a limitation on the legislative and e$ecutive powers as well as some e-ective dimensions o control over administrative discretion.

 he 5onstitution o India contains e$press provisions or &udicial review o

legislation as to its conormit# with the constitution unlie in America where the Supreme 5ourt has assumed e$tensive powers o reviewing legislative acts under over the widel# inter prated "due process+ clause in the Fith and

Fourteenth Amendments. I, when the courts in India ace up to such important and none too eas# tas, it is not out o an# desire to tilt at legislative authorit# in a crusderHs spirit %ut in discharge o a plainl# laid upon them %# the 5onstitution.

In India the Judicial 2eview o administrative actions alls into three distinct heads! (i) u%lic law review which is e$ercised through writs GFor Detail please reer last

preceding chapter).

(ii) Statutor# review which ma# %e either %# wa# o! (a) Statutor# appeals' and

(%) 2eerence to the igh!5ourt or statement o case.

(i) rivate Law review which is e$ercised through suits or damages, in&unctions.

Again where the decisions o administrative %odies are purel# o administrative nature, the scope o &udicial review is limited %ut it is not so where the decision o /uasi!&udicial nature. Judicial review o /uasi!&udicial action o administrative authorities has %ecome o greater importance or the reason that there has %een a tremendous increase o &udicial unctions o administrative authorities.

III) ,r$%nds *$r R!i!" $* O%asi-l%diial Ord!r-  he /uasi!&udicial orders o an administrative authorit# can %e reviewed on the ollowing grounds

S%&'!t - Administrati! La"

La" C$ll!#!

Class -LL.B (HONS.) IV SEM.

I7) E2l%si$n $* '%diial R!i!"- it should %e noted that &udicial review o an administrative action ma# %e e$cluded %# legislation. An administrative action cannot %e reviewed &udiciall#!

(a) here the statutes provide such administrative act or decision as fnal or, conclusive' (%) here the same result is sought to %e achieved more directl#, %# a negative provision

%arring particular remedies or providing that such administrative action or decision shall not %e lia%le to %e /uestioned in an# court or in an# legal proceeding.

7) ;$press 4ar or e$clusion o &urisdiction o courts!

(i) W!r! t! tri&%nal "as n$t r$!rl4 $nstit%t!d

(ii) W!r! t! tri&%nal as a&%s!d its $"!r %nd!r t! stat! &4 atin# in i$lati$n $* its r$isi$ns

(iii)W!r! t! stat%t! r$idin# t! <nalit4 la%s! is its!l* %n$nstit%ti$nal-Ra4ala S!na $nstr%ti$n s. D4. C. T. O.

(i)W!r! t! tri&%nal as at!d in !2!ss $* its '%risditi$n $n*!rr!d %$n it %nd!r t! stat%t! $r "!r! it "as $st!nsi&l4 *ail!d t$ !2!ris! a $t!nt '%risditi$n.

() W!r! t! tri&%nal as &as!d its d!isi$n artl4 $n $n'%r!s: s%rmis!s and s%sii$%s-(i)W!r! t! tri&%nal #a! a d!isi$n $* *at &4 $nsid!rin# mat!rial "i is irr!l!ant t$

t! !n;%ir4 $r &4 $nsid!rin# mat!rial "i is art4 r!l!ant and artl4

irr!l!ant-Dira'lal ,irdari Lal s. C$mmissi$n!r $* In$m! Ta2: B$m&a4

(ii) W!r! t! d!isi$n is #i!n in i$lati$n $* t! rinil!s $* nat%ral '%sti! a%sin# s%&stantial and #ra! in'%sti! t$ arti!s.

$r r!*!r!n!

-In C$r$rati$n $* Cal%tta s. Cal%tta Tram"a4s it has %een held that where a statute which contained a fnalit# clause, imposed an unreasona%le restriction upon the undamental right guaranteed under Article BG (B) (g), then such statute will %e struc down.

Class -LL.B (HONS.) IV

SEM. S%&'!t - Administrati!La"

VI) Cas! La"s

-I) 0%&li

C$r$rati$n-"he pu%lic corporation is a h#%rid organism, showing some o the eatures o a :overnment department and some o the eatures o a %usiness compan#, and sanding outside the ordinar# rame wor o 5entral or Local :overnment+.

A$rdin# t$ ,ARNER8

"he modern pu%lic corporation is a compromise %etween nationalization and private enterprise' the institution is essentiall# an instrument devised o administering some particular enterprise in the pu%lic interest.

 he pu%lic corporation are Semi!:overnment autonomous %odies, primaril# concerned with managerial, commercial and industrial enterprises and run various pu%lic utilities which the state does not choose to run departmentall# as it normal

:overnment unction.

 I X tion ma# %e

Ess!ntial !at%r!s $* %&li C$r$rati$n

(i) Statutor# pu%lic corporation is created %# a statute which la#s down its rights, duties and o%ligation. An# act o such pu%lic corporation out side the authorized area o operation shall %e ultravires and cannot %ind the

corporation. Such ultravires acts cannot %e ratifed. (ii) It is wholl# owned %# the state

(iii)It has a separate legal entit# and such it can use or %e used, enter into contract or ac/uire propert# in its own name.

(iv)u%lic corporation is largel# autonomous in fnance and management

e$cept or appropriation to provide capital or to cover losses. It has unds o its own and is authorized to use and re!use its revenue.

(v) A pu%lic corporation is generall# e$empted rom most regulator# and prohi%iting statutes applica%le to e$penditure o pu%lic unds.

(vi)It is ordinaril# not to the %udget, according and audit lams and procedures applica%le to non!corporate agencies.

(vii) A Statutor# pu%lic corporation is a HstateH within the defnition o the term in Article B8 o the constitution and such, it is su%&ect to the writ &urisdiction o the Supreme 5ourt and igh 5ourts under Articles C8 and 88 o the constitution.

(viii) In ma&orit# o the cases, the emplo#ees o pu%lic corporations are not civil servants. he# are appointed and remunerated under the terms and

conditions which the corporation determines itsel.

(i$)A pu%lic corporation however, is not a citizen within the meaning o art II o  the constitution and as such cannot claim the undamental rights given in Article BG o the constitution ! Stat! Tradin# C$r$rati$n $* India Vs. C.T.O.

u%lic corporation can not en&o# the privilege o the :overnment to withhold the document.

II) Ess!ntial !at%r!s $* %&li C$r$rati$n- he essential eatures o a summarized as under!

03BLIC COR0ORATION S%&'!t - Administrati! La" La" C$ll!#! Class -LL.B (HONS.) IV SEM.

Class -LL.B (HONS.) IV SEM.

III) C$mm$n !at%r!s $* %&li $r$rati$n-  he ollowing are the common eatures o the constitution o pu%lic corporations, though ever# pu%lic corporation is di-erent in matters o its constitution.

(i) he pu%lic corporations are identical in their constitution. ;ach has a governing %od#, esta%lished %# a constituent statute, consisting o a chairman and a defned num%er o mem%ers.

(ii) he pu%lic corporations are largel# autonomous I fnance and management. he# have their own separate accounts, which are audited %# /ualifed auditors. he audition reports are pu%lished annuall# together with the general report to the activities o the corporation.

(iii)Some pu%lic corporations are e$pressl# re/uired %# their constituent statutes to act or and on %ehal o the crown' other can act onl# on the directions o a

specifc minister.

In India, the pu%lic corporations were set up ater independence and have %een give constitutional recognition.

IV) C$nstit%ti$nal 0$siti$n $* 0%&li C$r$rati$ns- he 5onstitution o India recognizes the pu%lic corporations. Article BG () o the constitution. Su%classes (8) o Article BG () provides that the state can mae law relating to the carr#ing on the state or %# corporation, owned or controlled %# the state, o an# rade, %usiness, industr# o service, whether to the e$clusion, complete or partial, o citizens or otherwise.

V) Classi<ati$n $* 0%&li C$r$rati$n-  houghts, no e$act classifcation is provided, the statutor# pu%lic corporations ma# %e classifed as under*

S%&'!t - Administrati! La"