Académique Documents
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LONG ANSWERS
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SHORT ANSWERS
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ADMINISTRATIVE LAW
VERY SHORT-ANSWER QUESTIONS
Q. 1. How Dicey defines Administrative law?.
Ans. According to Dicey, "Administrative law is that portion of a
nation's legal system which determines the legal status and
liabilities of all state officials, which defines the righls and
liabilities of private individuals in their dealings with public
officials, and which specifics the procedure by which those
rights and liabilities are enforced."
Q. 2. How Jennings defined Administrative law?.
Ans. According to Sir Ivor Jennings, "Administrative Law is the
law relating to the administration. Il determines the
organisation, powers and duties of Administrative authorities.
Q. 3. How Wade and I'hilips define Administrative law?.
Ans. According to Wade and Philips, "Administrative law is a
branch of public law which is concerned with the composition,
powers, duties, rights and liabilities of the various organs of
government which are engage'd in administration."
Q. 4. Define Administrative law according to Griffith and
Street.
Ans. According lo Griffith and Street, Administrative law is
concerned with three questions : (i) What sort of powers does
(he administration exercise? (ii) What are the limits of those
powers?. (iii) What are the ways in which the administration is
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interest.
Q. 11. What are the reasons of the growth of Administrative
law?.
Ans. Reasons of the Growth of Administrative LawThese are :
(i) change in he concept of Govt., (ii) Demand of the Public, (iii)
Regulatory measures, (iv) Evolution of
Socialistic Pattern of society, (v) Inadequacy of judicial system,
(vi) Inadequacy of Legislative process, (vii) Scope for
experimentation in administrative process, (viii) Nontechnical
character of administrative process, (ix) Adoption of Prevantive
measures and (x) Policy of preventive measures.
Q. 12.What is the difference between Constitutional law and
Administrative law?
Ans. Difference between Constitutional law and Administrative
LawThough in essence constitutional law does not differ from
administrative law inasmuch as both are concerned with the
functions of Government, both are a part of public law in the
modern state. There is, however, a distinction between the two.
According to Holland, the constitutional law describes the
various organs of government at rest, while administrative law
describes them in motion. According to this view the structure
of legislature and executive comes within the sphere of
constitutional law while their functioning comes under the
purview of administrative law.
Q. 13. What do you mean by Droit Administratif?.
Ans. Meaning of AdministratifAccording to Dicey, "Droit
administratif is that portion of French Law which determines
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parties and involves (i) and (ii) but does not necessarily involve
(iii) and never involves (iv). The place of (iv) is. in fact, taken by
(he administrate ac(ion, (he character of which is dc(ermined by
(he Minister's choice. Il means the Minister is free to take
administrative aclion as he may think fit. The process of (iv) is
not necessary in disposing of the mat(er.
Q. 33. What is the distinction between Quasi-judicial Action
and Judicial Action?
Ans. A quasi-judicial action differs from a purely judicial action
in (he following respec(s : (i) A quasi-judicial authorily has some
of the trappings of a court, but not all of Ihem, nevertheless
(here is an obliga(ion (o ac( judicially, (ii) A lis inter paries is an
essen(ial characteristic of a judicial action but this may not be
true of a quasi-judicial aclion. (iii) A court is bound to follow the
rules of evidence and procedure while a quasiAdministrative Law
(i) Distributive JusticeThere is a vast and inevitable increase in
the frequency with which ordinary citizens come into direct
relationship with wielders of power. An ordinary citizen's
encounter is significantly with the officers representing
regulatory authorities, licensing officers granting or refusing
licences, dispensers of social services, managers of public sector
undertakings etc. (ii) National PlanningUnder the Industries
(Development & Regulation) Act, the government has been
given vast powers to regulate and control private enterprise.
The Act requires the licensing and registration of industrial
undertakings engaged in the manufacture or production of
articles listed in the schedule to the Act. The issue of licence is
discretionary with the government as the Act lays down no
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provides control t>ut specifies that they are to come into effect
only when a given administrative authority finds the existence
of conditions defined in the statute". In subordinate legislation,
on the other hand, the process consists of a discretionary
elaboration of rules and regulations.
Q. 40. What do you mean by Impermissible Delegation?.
Ans. Impermissible DelegationThere is no specific bar in our
Constitution against the delegation of legislative power by the
legislature to the Executive. However, it is now well settled that
essential legislative functions cannot be delegated by the
legislature to the executive. It means that the legislative policy
must be laid down by the legislature itself and by entrusting this
power to the executive, the legislature cannot create a parallel
legislature. Delegation of legislative power cannot amount to
abdication of essential legislative functions.
Q. 41. What do you mean by Delegatus non potest delegare?.
Ans. Delegatus Nun Potest Delegare : A delegate cannot further
delegate Betides the doctrine of separation of powers, the U.S.
Supreme Court has also invoked the doctrine ol delegatus non
potest delegare against delegation by the Congress. The
doctrine means that a delegate cannot further delegate its
powers. As the Congress gets power from the people, and is a
delegate of the people in that sense, it cannot further delegate
its legislative power to the executive or to any other agency.
Legislatures stand in this relation to the people whom tlicy
represent llencc. it is a cardinal principle of representative
government, that legilluture cannot delegate tin- power to
make laws to any other body or authority. However, strict
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one should be a Judge in his own Cause, and (ii) Justice should
not only be done but appear to be done. Proceedings before a
deciding authority may be vitiated if he is biased or has his own
interest in the case before him
Accountability?.
Ans.
Public
AccountabilityPublic
accountability is an emerging doctrine of administrative law.
The underlying purpose of this doctrine is to check growing
misuse of public power by the administration and to ensure
speedy relief to the victims affected by such exercise of power.
The doctrine of public accountability is based on the assumption
that the power vested in administration authorities is a public
trust which must be exercised for the welfare of the people
Accordingly the trustee (public authority) who enriches himself
by corrupt means holds the property acquired by him as a
constructive trustee.
Q. 74. What do you mean by Prerogative writs in Particular?.
Ans. Prerogative Writs in ParticularThe five writs specifically
mentioned U/ Art. 32 and 226 are known in English Law as
prerogative writs, for they had originated in the King's
prerogative power of superintendence over the due observance
of law by his officers and tribunals. The prerogative writs are
extra-ordinary remedies intended to be applied in exceptional
cases in which ordinary legal remedies are not adequate. Thus,
the Supreme Court and High Courts have power to grant the
remedy of the nature obtainable in the Court of King's Bench in
England by means of the prerogative writs. Q. 75. What do you
mean by the writ of Habeas Corpus?. Ans. The Latin phrase
'habeas corpys' means 'have the body'. However, recent
development of law indicates thai in writ of habeas corpus the
production of the body of the person alleged to be unlawfully
detained is not essential. In Kanu Sanyal Vs. D.M., A.I.R. 1973
S.C. 2624. Bhagwati, J. held that the production of the body of
the person alleged to be wrongfully detained is ancillary to the
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Bono Publico.
Q. 88. How far Govt, is liable vicariously for the torts
committed by its servants? Ans. Doctrine of Vicarious
LiabilityState is not a living entity but a legal entity which
cannot function without human agency. It is, therefore, that
State has to act through its servants. Tortious liability of the
State is really the liability of the State for the tortious acts of its
servants. The concept of tortious liability of State refers to a
situation when the State can be held vicariously liable lor the
wrongs committed by its servants.
Q. 89. Whether judicial review of Administrative action
through injunction is possible?.
Ans. Judicial Review of administrative discretion through
injunctionInjunction is an effective method of judicial control
of administrative discretion Thus, where the administrative
authority has either not exercised its discretion at all or has
exercised it at the instance of some other body, or its exercise is
arbitrary or has been exercised On extraneous considerations or
for an improper purpose or if its exercise is malafide, injunctin
would be issued in such circumstances.
Q. 90. What do you mean by declaration?.
Ans. DeclarationIn a declaratory action, the rights of the
parties are determined without adding further relief. The
essence of a declaratory judgement is that it states the rights or
legal position of the parties as they stand, withou altering them
in any way though it may be supplemented by other remedies
in suitable cases. A declaratory judgement by itself merely
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activities.
Q. 103. In what groups a Public Corporation may be classified?.
Ans. Functionally, public Corporations may be classified into
four 'ill-assorted' groups : (i) Commercial Corporations, (ii)
Development Corporation, (iii) Social Services Corporation, and
(iv) Financial Corporation.
Q. 104. How Parliamentary control is exercised over Public
Corporations?.
Ans. Parliament exercises control on Public Corporation in the
following ways : Viz; (i) Constituent StatuteThe powers to be
exercised by such Corporations can be defined by the statutes.
If powers are abused or misused by any Corporation, the
Parliament or the State Legislature can supersede or even
abolish the daid Corporation, (ii) Questions Through this
technique, members of Parliament can discuss the functioning
of Corporations by putting questions to the Minister concerned.
In this way, the Parliament ensures accountability of the
Corporations, (iii) DebatesA much more significant and
effective method of control is furnighed by a debate on the
affairs of a public Corporation, (iv) Parliamentary Committees
The functions of the Committee are : (a) to examine the reports
and occounts of the public undertakings, (b) to examine the
reports, if any, of the Comptroller and Auditor General on the
public Corporations, (c) to examine in the context of the
autonomy and efficiency of the public Corporations whether
their affairs are being managed in accordance with sound
business principles and prudent commercial practices.
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LONG ANSWERS
Q. 1(a). What do you mean by Administrative Law? Explain its
definition, nature and scope.
(b) What is the difference between Administrative Law and
Constitutional Law?
(c) What are the causes for the growth or reasons of the
importance of Administrative Law?
Ans. (a). Meaning of Administrative Law-Administrative law is a
branch of public law, which deals with the structure, powers
and functions of the organs of administration; the limits of their
powers and the methods, by which their powers are controlled,
including the legal remedies available against them.
Definition of Administrative Law-Theterm 'administrative law'
has been defined by the different jurists in a different manner1. According to Dicey, "Administrative law is that portion of a
nation's legal system which determines the legal status and
liabilities of all state officials, which defines the rights and
liabilities of private individuals in their dealings with public
officials, and which specifies the procedure by which those
rights and liabilities are enforced."
It may be noted that Dicey's definition of Administrative law is
based on French Droit Administratis This definition is too
narrow in so far as it excludes from consideration many
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appeals and revisions and the like. From his control mechanism
is also excluded the vast area of administrative action which is
neither quasi-legislative nor quasi-judicative.
\
6. According to Jain and Jain, "Administrative Law deals with
the structure,powers and functions of the organs of
administration, the limits of their powers, the methods and
procedures followed by them in exercising their powers and
functions, the methods by which their powers are controlled
including the legal remedies available to a person against them
when his rights are infringed by their operation.
The above definition covers four aspects of administrative law.
Firstly, it deals with the composition and the powers of
administrative authorities. Secondly, it fixes the limits of the
powers of such administrative authorities. Thirdly, it prescribes
the procedure to be followed by these authorities in exercising
such powers. And fourthly, it controls these administrative
authorities through judicial and other means.
Although, various attempts have been made by the different
jurists to define administrative law, its nature, scope and
contents, yet none is right or wrong in absolute sense. In fact, it
is not possible to evolve a comprehensive, precise and
satisfactory definition of administrative law so as to demarcate
clearly its nature, scope and contents. There are many
formulations but either they are too broad and include much
more than necessary or they are too narrow and do not include
all its essentials.
Nature and Scope of Administrative Law-According to Freund,
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the subject.
It may be noted that the scope of administrative law in India is
very much similar to that of United States. In fact, the problem
before us is to prevent the potential threat to justice and
encroachment on our freedom. Administrative law
comprehensively deals with the ways and means to keep the
multifarious powers of administrative authorities under control.
It intends to prevent the growth of an autocratic rule by
administrative authorites. It provides for the safeguards against
what Lord Hewart has described as "New Despotism." Prof.
Griffith and Street have rightly pointed out in this connection
that the operation and control of administrative authorities
being the chief purpose of administrative law, if deals with the
following enquiries(i) What sort of powers does the administration exercise?
(ii) What procedures do the administrative authorities follow in
the exercise of the powers of the administration?
(iii) What are the limits on the powers of the administration?
(iv) What are the ways in which the administration is kept
within those limitations? and
(v) What remedies are available to the individual against the
illegal actions of the administration?
Thus, we can say that the administrative law is primarily
concerned with the judicial control of administrative powers.
The rules of judicial control are generally derived from some
basic principles of constitutional law, rule of law and the
principles of natural justice.
In short, it can be concluded that the administrative law mainly
deals with62
of
administrative
agencies
4.
5.
6.
7.
Public corporations.
like
organisation,
functions,
powers and duties of
Administrative authorities.
has its own strong bureaucracy may have the tendency to rids
rough-shod over the rights of the people. If exercised properly,
the vast powers of the administration may lead to the welfare
state but; if abused they may
lead to administrative despotism and a totalitarian state. The
study and development of administrative law becomes
inevitable as administrative law is an instrument of the control
of administrative operation of the government interested in
social welfare.
II.
1939-1947
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administratif with Conseil d' Etat at the apex are following1. The composition and function of the Conseil d' Etat itself,
2. The flexibility of its case law,
3. The simplicity of remedies available before the
administrative courts,
4. The special procedure evolved by those courts, and
5. The character of the substantive law which they apply.
Rules of Droit Administration-In France, droit administratif
consists of rules developed by the judges of administrative
courts. There are three series of rules included in droit
administratif1. Rules relating to administrative authorities and officialsappointment, dismissal, status, salary and duties etc.
2. Rules relating to the operation of public services to meet
the needs of citizens.
3. Rules relating to administrative adjudication-if any injury
is caused to a private citizen by the administration, the
matter has to be decided by the administrative courts.
Conseil d' Etat is the highest administrative Court, whose
decision is final.
Characteristic Features of Droit Administratif-The following
are the characteristic features of the Droit Administratif in
France1. Matters concerning state and administrative litigation
fall within the jurisdiction of administrative Courts and
connot be dccided by the ordinary courts of the land.
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Administrative law.
Ans. Meaning of the term ' Ruleof Law- The term'ruleof law'
means the principles of legality which refers to a government
based on the principles of law and not of the men. In this
sense the concept of the rule of law is opposed to arbitrary
powers.
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4. Ministerial action.
(a) Various Kinds of Administrative Action-The various kinds of
action of Administration are as under1. Rule-Making Action or Quasi-legislative Action-It may be
noted that the Legislative action of the administration is a rulemaking function. When any administrative authority exercises
law-making power delegated to it by the legislature it is known
as the rule-making action of the administration or quasilegislative action. Legislative action of the administration
consists of the making rules, regulations, bye-laws etc.
Characteristics of Rule-making Action-Rule-making actions of
the administration partakes all the characteristic features which
a normal legislative action possesses. Such characteristic
features may be generally, prospective in behaviour which
bases action on policy consideration and creates rights or
liabilities. However, these characteristic features are not
without exception. In certain cases administrative rule-making
action may be particularised, retrospective and based on
evidence.
Examples of Quasi-Legislative Action-A number of functions
which have been held to be legislative are as under(a) Fixation of price;
(b) Declaration of a place to be a market yard;
(c) Imposition of tax;
(d) Establishment of a Municipal Corporation under statutory
provisions; and
(e) Extension of limits of a town area committee.
2. Rule-Decision Action or Quasi-judicial Action-Accordingto
the Committee on Minister's Powers, pure judicial action
presupposes a Lis between two or more parties and then it
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statutory force do not give rise to any legal right in favour of the
aggrieved person and cannot be enforced in a Court of law
against the administration. The rule of non-enforceability is
applicable even though the administrative direction is issued
under a statutory provision. Thus, in the State of Assam Vs. Ajit
Kumar Sharma, A.I.R. 1965, the Supreme Court refused to
enforce the instructions issued by the State Government to
provode aid to the Private Colleges. In the course of judgment,
the Court said that administrative instructions do not have
statutory force, and therefore, the writ of madamus cannot be
issued to enforce them.
Generally, administrative directions do not give rise to a legal
right. However, this rule is not absolute. In Union of India Vs.
K.P. Joseph, A.I.R. 1973, the government issued an office
memorandum providing for the fixation of salary of reemployed personnel. The respondent wanted the
memorandum enforced in his case. It was contended by the
Government that the memorandum was an administrative
direction conferring no justiciable and enforceable right in
favour of the respondent. Negativing the contention, the
Supreme Court held that in this case the memorandum
conferred on the respondent the right to have his pay fixed in
the manner specified therein and it formed a part of the
conditions of service. The court saw no reason why it should not
enforce that right of the respondent by issuing the writ of the
mandamus.
Directions Inconsistent with Statute or Rules are Bad Directions cannot run counter to the statute or rules. The
position is so because directions are subsidiary to the statute or
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rules. It is, therefore, the rules made under Art. 309 of the
Constitution cannot be amended by the administrative
directions.
Direction not to Affect Individual's Rights-Freedom ofthe
individual is of great value in a democratic society. Under our
Constitution and common law jurisprudence, any restriction
prejudicial to his interest can be placed only by law. This thing
cannot be done by the administrative instructions. As
departmental instructions without statutory force do not
constitute "law", no restraints can validly be placed on any
one's personal liberty.
Directions to Quasi-judicial and Statutory BodiesAdministrative direction cannot be issued to quasi-judicial
bodies as they are not binding on them.
(b) Definition of Administrative Discretion1. According to Davis, "Discretion implies power to make a
choice between alternative courses of action."
2. According to J. Frankfurter, "Discretion without a criterion
of its exercise is authorisation of arbitrariness."
3. According to Prof. Freund, "When we speak of
administrative discretion, we mean that a determination may
be reached, in part at least, upon the basis of consideration not
entirely susceptible of proof or disproof.......It
may be practically convenient to say that discretion includes the
case in which the ascertainment of fact is legitimately left to
administrative discretion."
Discretionary Power and Judicial Control-There are different
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A hearing to be fair must fulfil following three requiremcts(i) The adjudicating authority should receive all the relevant
material which the individual seeks to produce;
(ii) It should disclose all the facts, evidence or material which
the authority seeks to use against the individual concerned in
making its decision;
(iii) It should afford to the individual concerned an opportunity
to - rebut all such facts or material.
Requirements of Fair Hearing-Again, a fair hearing requires
following, rights to be given to the person affected(i)'Cross-examination-Cross-examination is one of the most
efficacious methods of establishing truth and exposing
falsehood. But it does not necessarily mean that the right of
cross-examination of witnesses should be given to the person
concerned. It depends upon the facts and circumstances of each
case and to the statutory provisions. Generally, in cases of
domestic inquires by employers against their employees in the
area of labour management relations, and also in disciplinary
proceedings under Art. 311 of the Constitution of India against
civil servants or by a statutory corporation against its
employees, the right of cross-examinatiofi of witnesses is
regarded as an essential content of natural justice and fairness.
In Town Area Committee Vs. Jagdish Prasad, A.I.R. 1978, the
department submitted the chargesheet, got explanation and
thereafter straight away passed the dismissal order. The Court
set aside the order holding that the rule of fair hearing includes
an opportunity to cross-examine witnesses and lead evidence.
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Thus, in Union of India Vs. J.N. Sinha, A.I.R. 1971, S.C. 40, the
competent authority acting under Rule 56 (J) of the
Fundamental Rules passed order compulsorily retiring a
government servant. It did not provide forgiving any
opportunity to the government servant concerned to show
cause against the proposed action. The Supreme Court upheld
the said decision.
2. Legislative Function-Legislative action, plenary or
subordinate, is not subject to the rules of natural justice. This is
so because these rules lay down a policy without reference to
particular individual. A legislative action, for example, price
fixing, is a direction of general character, not directed against a
particular person or individual manufacturer or trader. There is
no question of invoking principles of natural justice in such
cases.
3. Emergency-hi exceptional cases of urgency or emergency
where prompt and preventive action is required, the principles
of natural justice need not be observed.
According to Krishna Iyer J., "If to condemn unheard is wrong, it
is wrong except where it is overborne by dire social necessity."
Thus, where a dangerous building is required to be demolished
to save human lives, or where a Banking company is required to
be wound up to protect the interest of depositors, or where a
passport is required to be impounded in public interest, or a
trade dangerous to society is to be prohibited, dire social
necessity requires exclusion of the elaborate process of predecisional hearing.
142
postulates that a party has right to know not only the decision
but also the reasons for that decision. But this is not a
universally established rule although in certain situations it is
rigidly enforced. The duty to give reasons may be statutory or
non-statufory. Where the duty is required by the statute, the
authority is bound to give reasoned decisions in all cases to
which that provision applies. But in the absence of statutory
requirement, the Courts have been emphatic to advise judicial
or quasi-judicial bodies to assign reasons in such a form as to
justify the order being called what are described as speaking
orders. A speaking order means an order which speaks by itself.
Reasoned Decisior.-It is one of the principles of natural justice
that a party is entitled to know the reasons for the decision
apart from the decision itself. It should be noted that this
requirement to give reasons for the decision is quite a new
approach to administrative law, Becuase, it is a prevailing law in
India that quasi-Judicial bodies need not give reasoned decision.
In U.S.A. the right to have a reasoned decision arises from the
provisions of the "Administrative Procedure Act" and also from
the "Due Process Clause" of the Constitution.
In England, the Franks Committee while dealing with the
importance of reasoned decision, made the following
observations
"Almost all witnesses have advocated the giving of reasoned
decisions. We are convinced that if tribunal proceedings are to
be fair to the citizens, reasons should be given to the fullest
possible extent. A decision is apt if the reasons for it have to be
in writing because the reasons for it are then more likely to
146
Q. 10 (b). What do you mean by the Doctrine of PostDecisional Hearing? In which case it was first propounded and
by whom? What is the justification of this doctrine? Or
Write a short note on the doctrine of Post-Decisional Hearing.
Ans. Meaning of the Post Decisional Hearing-Although one of
the requirement of the principles of Natural Justice is that 'no
one should be condemned unheard'. But some time it is not in
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can be exercised for the Union by Parliament and for the States
by the respective State legislatures. It is the intention of the
Constitution-makers that this law-making power must be
exercised by those bodies alone in whom this power is vested.
But in the Twentieth Century today these legislative bodies
cannot give that quality and quantity of laws which are required
for the efficient functioning of a modern intensive form of
government. Therefore, the delegation of lawmaking power to
the administration is a compulsive necessity. When any
administrative authority exercises the law-making power
delegated to it by the legislature, it is known as the rule-making
action of the administration or quasi-legislative action.
How far Judicial Powers of the Administration Justified under
the Indian Constitution?-Now-a-days, it is an established fact
that the Parliament passes only a skeleton legislation and the
rest of the part is left on the administrative agencies to provide
through the rule making power delegated to them for example;
the Import and Export (Control) Act, 1947 contains onlyeight
sections and delegates the whole power to the administrative
agency to regulate the whole mechanism of imports and
exports.
Thus, we can say that the Executive has two kinds of powers to
make laws. One kind of power is an independent power
conferred by the Constitution on the President and the
Governor, who are the executive heads of the Union and the
State. The other kind of power is the power delegated by the
Legislature to the Executive. A good deal of legislation takes
place through administrative agencies rather than in
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made by the Parliament only with all the attending delay which
passing of legislaton entails".
controlling measure. It can be exercised by applying two tests(a) Substantive ultra vires; and (b) Procedural ultra vires.
When a subordinate legislation goes beyond the power of the
authority conferred on the delegate to enact, it is known as
substantive ultra vires. It is a fundamental
principle of law that a public authority cannot act outside the
powers and if the authority acts, 'such act becomes ultra vires
and, accordingly void'.
When a subordinate legislation is enacted without complying
with the procedural requirements prescribed by the Parent Act
or by the general law, it is known as procedural ultra vires. In
case of procedural ultra vires, the
Courts may or may not quash delegated legislation as it
depends upon the circumstance whether the procedure is held
to be mandatory or directory.
It is to be noted that the Judicial control over delegated
legislation is exercised by applying the doctrine of ultra vires in
a number of circumstances i.e.,
1. Where Parent Act is Ultra vires the Constitution-The
Constitution prescribes the limits within which the legislature
can act. If the Parent Act or Enabling Act is ultra vires the
Constitution, the rules and regulations made thereunder would
also be null and void. The Parent Act is declared ultra vires the
Constitution, if it violates the following three limits(i) Express Constitutional Limits-The Legislative powers of the
160
Union and the States are expressly distributed in Art. 246 of the
Constitution. If either legislature encroaches upon the exclusive
sphere of the other as demarcated in three Lists, (i) Union list;
(ii) State list; and (iii) Concurrent list, its legislation will be ultra
vires.
(ii) Implied Constitutional Limits-Implied Constitutional limits
are those which were enunciated in Re Delhi Laws Act A.I.R.
1951 Viz., laying down policy and enacting that policy into a
binding rule of conduct. Legislature cannot delegate essential
legislative function to any other agency and if it so delegates the
Parent Act will be ultra vires the Constitution. On this principle,
in Re Delhi Laws Act Case, the Supreme Court declared the later
part of Clause 2 bad because it conferred power on the
administrative agency to repeal a law which, according to the
Court, is an essential legislative power.
(iii) Constitutional Rights-No legislature has competence to
pass a law violative of the provision of commerce clause, right
to property under Art. 300-A or the right to life and personal
liberty under Art. 21.
2. Where Delegated Legislation is Ultra Vires the ConstitutionUnder certain circumstances it is possible that the Parent Act
may not be ultra vires the Constitution and delegated legislation
may be consistent with the Parent Act, yet the delegated
legislation may be held invalid on the ground that it is ultra vires
the Constitution.
In Dwarka Prasad Vs. State of Uttar Pradesh, A.I.R. 1954, the
U.P. Control Order was made under the Essential Supplies
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Ans. Legislative Control over Delegated Legislation-Since lawmaking power is vested in the legislature, hence on the basis of
the Doctrine of'Constitutional Trust', power should be exercised
by the legislature itself. But if the legislature delegated
legislative powers to the executive, it must also see that powers
are properly exercised by the administration. The object of
legislative control is to keep watch over the rule-making
authorities and also to provide an opportunity to criticise them
if there is abuse of power on their part.
Methods of Legislative Control over Delegated Legislation-A
three prong control is exercised by the legislature over
delegated legislation as follows1. Proceedings in Parliament;
2. Laying on the Table; and
3. Scrutiny Committees.
1. Proceedings in Parliament-There are two Houses of
Parliament. Each House has its own rules of procedure and
conduct of business. A rule of each House requires that a bill
involving proposal for delegation of legislative power "shall be
accompanied by a memorandum explaining such proposals and
drawing attention to their scope, and stating also whether they
are of exceptional or normal character. A number of
166
177
that if the policy laid down in an Act is in broad terms the filling
of details of that policy can generally be passed on by the
Legislature to the Executive. J.
Mahajan said, "The delegation of the legislative power to the
Executivp in essential matters is unconstitutional".
J. Kania supported the view by holding that the power of
delegation in the sense of the Legislature conferring powers on
the Executive "to lay down the policy underlying a rule of
conduct" is not permitted. The fundamental point', where all
the judges agreed in Re-Delhi Laws Act Case were as under
1. From a practical point of view. Parliament should be .il>lr in
delegate, power to the Executive.
2. Unlike U.S.A. the doctrine of separation of powers did not
prevail in India, which has primarily a Parliamentary system of
Government and where delegation of legislative power,
therefore, cannot be regarded as an illegality.
As to the extent of delegation, Judges have differed. Das and
Shastri, JJ., took the view that Parliament could delegate to any
extent subject to only limitation that it must not efface itself or
abdicate its powers. Kania, Mahajan and Mukherjee, JJ. held the
view that Parliament could not delegate the essential legislative
function to another agency. By essential function was meant
the formulation of policy and enacting it into a binding rule of
conduct. After formulating the policy, Parliament could leave
the task of working out details within the framework of its
186
function.
5. Ouster of Jurisdiction of Courts-Legislature cannot
empower the Executive by which the jurisdiction of courts may
be ousted. This is a pure legislative Function.
Q. 17. What are the Legislative functions which can be
delegated and which cannot be delegated?
delegate; and
(ii) Sub-delegation is ancillary to delgated legislation, and
objection to such process is likely to subvert the authority which
the legislature delegates to the Executive.
The maxim 'delegatus non potest delegare' does not lay down a
rule of law. It merely states a rule of construction of a statute.
Generally, sub-delegation of legislative power is impermissible,
yet it can be permitted either when such power is expressly
conferred under the statute or can be inferred by necessary
implication. This is so because there is a well established
principle that a sub-delegate cannot act beyond the scope of
power delegated to him.
Validity of Sub-delegation-it is to be noted that the validity of
the sub-delegation may be examined under the following two
heads(i) Where the Statute, provides Express power to delegate,
and
(ii) Where the Statute provides Implied powers to delegate.
There is no difficulty as regards the validity of sub-delegation
where the statute itself authorises the administrative agency to
sub-delegate its powers because such sub-delegation is within
the terms of the statute itself.
Thus, in Central Talkies Vs. Pwarka Prasad, A.l.R. 1961 under the
U.P. (Temporary) Control of Rent and Eviction Act, 1947, it was
provided that no suit shall be filed for the eviction of-a tenant
without the permission either of a District Magistrate or any
Officer authorised by him to perform any of his functions under
203
Welfare State.
Definition of Judicial Powers of Administration-Administrative
Decision making power may be defined "as a power to perform
acts administrative in character, but requiring incidentally some
characteristics of judicial traditions". On the basis of this
definition, the following fijncions of the administration have
been held to be quasi-judicial functions1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for
misconduct.
3. Confiscation of goods under the Sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew
licence or permit by licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods
beyond a particular period.
8. Refusal to grant "no objection certificate' under the
Bombay Cinemas (Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for retrenchment.
11. Grant of permit by Regional Transport Authority.
Characteristics of Judicial Powers of Administration-The
Donoughmore Committee on Ministers' Powers, 1932 analysed
the characteristics of a 'true judicial decision' and summed up
the attributes, the presence or absence of which stamped a
decision as administrative decision-making or quasi-judicial
action. The Committee was ofthe view that a true judicial
decision presupposes a 'lis' between two or more parties and
208
administrative action; to the lawyer they are not fully within the
legal fold since they are; in certain
aspects, an appendage of bureaucracy".
in this way, Administrative Tribunals may be defined as
administrative bodies set-up solely to discharge quasi-judicial
functions. In certain circumstances, justice
lies not in disposal of case according to law but in fair
disposition, for example, in cases like licencing, nationalisation,
fixing priorities in planning and action,
the decision is to be reached not according to law as such but
on the ground of policy considerations. Therefore, such matters
are quite unfit for courts and
administrative bodies are set up to adjudicate upon such
matters.
It should be noted that an administrative body will be
administrative tribunal only when that body is constituted by
the State and is vested with some judicial powers
of the State. In A.Ph.L. Conference, Shillong Vs. W.A. Sangana,
A.l.R. 1977, Supreme Court held that, "The principal test, which
must necessarily be present in
determing the character of the authority as tribunal is whether
that authority is empowered to exercise any adjudicating power
of the State and whether the same has
219
222
Courts would not have time to take over all this work in addition
to what they already have. The delay in disposing of such
questions result in failure of justice. In Mahavir Jute Mills Vs.
Shibban Lai Saxena, 1975, after a long drawn legal battle, his
case was finally decided after a period of twenty-five years,
when most of the 400 persons who claimed justice on the
ground of wrongful dismissal had died and the new apppointees
in their place had completed twenty-five years of service.
Therefore, as it became clear that the weight of social
legislation would be intolerable both for the people and the
Court, the burden has to be shared by the administrative
tribunals.
4. Administrative Tribunal is Less Formal-The administrative
adjudicatory system came into existence with intent to carry
out the modern government plans of public health, education,
planning,social security, transport, agriculture, industrialization
and national assistance. It provided a system of adjudication
which was informal, flexible, cheap and rapid.
Q. 21 (c). Explain the growth of the Administrative Tribunals in
India.
Ans. Growth of Administrative Tribunals in India-The present
concept of modern welfare state and its plans of
industrialisation, public health, education, planning, social
security, transport, agriculture and national assistance gave rise
to multiple problems, the solution of which required technical
and expert knowledge, which the ordinary Courts were lacking.
Not only this, thousands of disputes arose due to multifarious
224
Who are entitled to get the remedy through writs U/Art. 226?
Ans. Scopeof the Writ Issuing Powers of High Court U/Art. 226The writ issuing powers conferred on the High Courts under Art.
226 can be exercised to enforce not only for a Fundamental
Right but a non-fundamental right also. In this sense the writ
jurisdiction conferred on the High Courts U/Art. 226 is wider
than that conferred on the Supreme ( ourt U/Art. 32. This is so
because Supreme Court can act U/Art. 32 only when there is
violation of a Fundamental Right whereas a High Court can act
when a Fundamental Right or any other legal right is violated.
The following are the general principles relating to Art. 2261. Art. 226, empowers the High Court to issue the writs,
direction or order in the nature of Habeas corpus, Mandamus,
Prohibition, Quo-warranto and certiorari(a) For the enforcement of any ofthe right conferred by Part III,
and
(b) For any other purpose.
Under the First Part, a writ may be issued U/Art. 226 only after
a decision that the aggrieved party has" a fundamental right
and that it has been infringed. Similarly, under the Second Part
writ may be issued only after a finding that the aggrieved party
has a legal right which entitles him to any of the aforesaid writs
and that such right has been infringed.
2. Where there has been an infringement of fundamental
right, an application U/Art. 226 should not be thrown out simply
231
on the ground that the proper writ, has not been provided for.
The petitioner is, in such cases, entitled to a suitable order for
the protection of his fundamental rights. It has been held in
Yasis Vs. Town Area Committee, 1952 S.C.R. 572, that where the
petitioner has asked for relief in a very wide form, the Court
would issue the order in the proper form. A High Court is as
much bound as the Supreme Court to enforce the fundamental
rights guaranteed by the Constitution.
3. Art. 226, confers on all the High Courts very wide powers in
the matter of issuing writs which they never possessed before.
There are only two limitations placed upon the exercise of these
powers by a High Court(a) That the power is'to be exercised "throughout the
territories in relation to which it exercises jurisdiction."
(b) That the persons or authority with respect to whom the
High Court is empowered to issue the writs "must be within
those territories" and this implies, that they must be amenable
to the jurisdiction of the Court either by residence or location
within those territories.
4. But though the powers of the High Courts U/Art. 226, are
discretionary and no 'imits can be placed upon that direction
yet it must be exercised along with recognjsed lines and not
arbitarily. Thus, in the exercise of this discretionary jurisdiction,
the High Court should not act as Court of Appeal or Revision to
correct mere errors of law or of fact.
Both the Arts. 32 and 226 of the Constitution provide for the
control over administrative acts by either of the following
232
Supreme Court held that the writ petition was "highly belated"
and was as such liable to be dismissed on the ground of "laches
and delay".
In State of M.P. Vs. Bhailal, petitons were filed in the High Court
of M.P. for refund of tax paid under the provisions held to be
unconstitutional. Some of the petitions were filed with in the
period of three years from the date of decision holding the
provisions ultra vires, whereas others were filed after three
years. On the analogy of Limitation Act, the Supreme Court
allowed the former group but dismissed the later.
2. Alternative Remedy-Availability of an adequate and
efficacious alternative legal remedy is a ground for the Court to
decline to exercise its writ issuing power. However, this
principle is not to apply where the enforcement of Fundamental
Rights either U/Art. 32 or 226 is involved. The law is that the
Supreme Court and High Courts cannot refuse relief U/Arts, 32
and 226 on the ground of alternative remedy if the person
complains ofthe infringement of his Fundamental Rights.
Since the High Courts are the apex judicial institutions in the
States, and it is but natural that if an alternative, suitable and
equally efficacious remedy is available to the party, they may
refuse to exercise the discretionary jurisdiction and direct the
aggrieved party to first avail the said alternative remedy. Thus,
if permit has been refused under the provisions of the Motor
Vehicles Act, 1939. a person aggrieved may take appropriate
action under the provisions of the Act and a petitor U/Art. 226
is not maintainable.
234
the Court can see whether the provisions of Art. 22 (5) had been
complied with by the detaining authority. It is the duty of the
Couft to see that a law depriving the person of his liberty
without the safeguards available even to a person charged with
crime is strictly complied by an anticipatory action only in the
interest of what is enumerated in the statute. "Amid the clash
of Anns, Laws are not silent. They may be changed, but they
speak the same language in war and peace. Whenever there is a
doubt between liberty and bondage, the decision must be in
favour of liberty".
Ans.
Meaning, Nature and Scope of Quo-warrantoQuo-warranto means 'what is your authority'? The writ of quowarranto is a judicial order against an occupier or usurper of an
independent substantive public office or franchise or liberty to
show 'by what authority' he is in such office, franchise or
liberty? If the answer of the usurper is not to the satisfaction of
the Court, the writ of quo-warranto can be issued to oust him.
The writ of quo-warranto is a mode of judicial control in the
sense that the proceedings review the actions of the
administrative authority which appointed the person. The writ
is issued to the person ousting him from holding a public post to
which he has no right.
258
260
in the Government".
Thus, it can be concluded from the analysis of the above
definitions that P.I.L., advocacy for public interest, and free legal
aid to poor, all are for the protection of poor, illiterate and
weaker sections of the society.
It is to be noted that the term "Public Interest Litigation"
occupies an important place in U.S.A. and U.K. In India also its
seeds were sown in 1976. The term "Public Interest Litigation"
was used by Justice Krishna Iyer and Justice P.N. Bhagwati in
S.P. Gupta Vs. Union of India, A.I.R. 1982 S.C. 149. The Supreme
Court has made it clear that where a legal wrong or legal injury
is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or
legal provision or without the authority of law or any such legal
wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically
disadvantaged position unable to approach the Court for relief,
any member of the public can maintain an application for an
appropriate direction, order or writ in the High Court U/Art. 226
and in the case of breach of any fundamental right of such
person or determinate class of persons in the Supreme Court
U/Art. 32 seeking judicial redress for the legal wrong or legal
injury caused to such person or determinate class of persons.
Is Public Interest Litigation an Exception to the Locus Standi?Yes. Ordinarily, only the person whose fundamental or other
rights have been violated is entitled to file a petition U/Art. 32
262
3. In M.C. Mehta Vs. Union of India, A.I.R. 1988, S.C. 2217, the
Court issued direction for the enforcement of the statutory
provisions relating to the prevention of nuisance caused by the
pollution of the river Ganga. The Court directed the Nagar
Mahapalika, Kanpur to comply with the statutory obligations
under the Water (Prevention and Control of Pollution) Act,
1974.
4. In M.C. Mehta Vs. Union of India, A.I.R. 1992, S.C. 382, the
Court directed the Government to spread information relating
to environment through audio visual media. It also directed the
Government to introduce environment as a compulsory subject
in schools and colleges.
5 Bom. HCR P.l. In this case an injury was caused to the horses
of the Peninsular and Oriental Steam Navigation Company by
the negligence of certain number of coolies under the
employment of the authorities of Kidderpore Dock-Yards in
Calcutta. The coolies negligently droped an iron piece on the
road running by the side of dock-yards. By the noise of the fall
of iron the horses of carriage, owned by the Company, were
frightened and one of the horses fell on the iron and was thus
injured. The plaintiff company brought an action for negligence
claiming damages against Secretary of State for India-in-Council
because all the employees of the dock-yard were servants of
the Crown (through Secretary of State for India-in-Council). The
defendant that is Secretary of State claimed immunity of the
Crown and contended that the suit was not maintainable.
The question to be decided was referred to Supreme Court in
the form "whether the Secretary of State for India is liable for
the damages occasioned by the negligence of the servants in
the service of the Government, assuming then to have been
guilty of such negligence as would have rendered an ordinary
employer liable".
The Supreme Court through C.J. Peacock deliverd a very learned
judgement and answered the question in the affirmative. The
Court pointed out the principles of law that the Secretary of
State for India-in-Council is liable for the damages occasioned
by the negligence of Government servants if the negligence is
such as would render an ordinary employer liable. According to
the principle laid down in this case, the Secretary of State can
be liable only for acts of non-sovereign nature; liability will not
276
A.I.R. 1983, S.C. 1036 and Puspendra Kaur Vs. Corporal Sharma,
A.I.R. 1985 Pand H 81.
In State of Rajasthan Vs. Vidhyawati, A.I.R. 1962, S.C. 933, the
Supreme Court held the State vicariously liable for the torts
committed by its servants. The facts in this case were that in
February 1952, the driver of a Government Jeep while driving
back from the workshop knocked down a person on footpath.
This caused his death. A suit by widow of the deceased and her
minor daughter for compensation against the government was
filed. The Supreme Court decided in favour of the widow of the
deceased without making any distincion between sovereign and
non-sovereign functions of the government. It was established
that henceforth this Government would be liable for the torts
committed by its servants in all cases except acts of state.
However, this development of law in this area suffered a
setback in Kasturi Lai Vs. Stateof U.P. A.I.R. 1965, S.C. 1039.
Inthis case the plaintiff was going to Meerut to sell gold, silver
and other goods. As he was passsing through the city he was
taken into custody by police. His goid and silver was also kept
under police custody when he was released, his silver was
returned to him but goid was lost from police malkhana. He
filed suit for the recovery of the gold and claimed damages. But
the Supreme Court held that the state was not liable because
the gold was lost as a result of sovereign act of the police.
Conclusion-It can, however, be concluded that in a socialist
Republic, even if govermental functions can be classified into
Sovereign and Non-sovereign functions, the principle is
279
Sabha and Rajya Sabha and the leader of that House whose
member is not Prime Minister, etc. The chairman shall be
appointed by the president on the recommendation of this
Committee headed by the Vice-President.
Constitutional Hurdles for the Establishment of the Proposed
Ombudsman-According to one of the recommendations of the
Commission, the proceedings before the Lokpai shall "not be
the subject to judicial interference". Thus, Clause 13 of the Draft
Bill appended with Interim Report says, "No suit, prosecution,
or other proceedings shall lie against the Lokpai or any of his
officers in respect of anything which is in good faith done or
intended to be done under the Act". This provision seeks to
make the Lokpai immune from judicial conjtrol. However, it may
be pointed out that this provision may exclude the jurisdiction
of inferior Court only but not the jurisidiction of High Courts
under Arts. 226-227 or of the Supreme Court under Art. 32, 136,
unless the Constitution is amended to that effect. This is so
because the Constitutional powers of the Supreme Court and
High Courts cannot be taken away by ordinary legislation. In the
absence of such constitutional amendment, the Lokpai will be
subject to the supervisory jurisdiction of the Supreme Court or
of the High Courts as any other Administrative Authority and
proceedings are bound to be challenged in these Courts. In the
event of such happening, the object of making Lokpai immune
from judicial interference will be defeated.
On the other hand, if the Constitution is amended excluding the
Lokpai from the supervisory jurisdiction of the Supreme Court
and the High Courts, there will be infringement of the Rule of
292
litigation.
4. Action for Damages-A person wronged by administrative
action can challenge its validity in an action for damages by
filing a suit in the Civil Court of first instance where the
procedure is regulated by C.P.C. The requirement of two
months notice is mandatory U/S. 80 before filing the suit, unless
it is waived by the Court in special circumstances. In Ratlam
Muncipality Vs. Virdi Chand A.I.R. 1980, S. 133 Cr. P.C. which
authorises a Magistrate on receiving the report of Police Officer
or other information to make an order for remeding public
nuisance was invoked by one of the residents of a locality
against the municipality for failure to carry out the duty'of
constructing a drain pipe. Turning down the plea of lack of fimds
with the municipality, the Supreme Court directed the
Committee to follow a time bound programme laid down by it
for the purpose.
Law a civil servant holds his office "during the pleasure of the
Crown". This means that his services can be terminated at any
time by the Crown, without assigning any reason. Even if there
is a contract of employment between him and the Crown, the
Crown is not bound by it. In other words, if a civil servant is
dismissed from the service he cannot claim arrears of salary or
damages for premature termination of his service. This
jurisdiction of Crown is called "Doctrine of Pleasure". The
doctrine of pleasure is based on the public policy.
Art. 310 of the Indian Constitution incorporates the Common
law doctrine of pleasure. It expressly provides that all persons
who are members of the Defence Services or the Civil Services
of the Union or of All-India Services hold office during the
pleasure of the President. Similarly, members of the State
Services hold office during the pleasure of the Governor. But
this Doctrine of Common law has not been fully adopted in Art.
310. A civil servant in India can always sue for the arrears of
salary vide : State of Bihar Vs. Abdul Majid, AI.R. 1954 S.C. 245.
The rule is qualified by the opening words of Art. 310 "except"
or "expressly provided by the Constitution". Thus, Art. 310 itself
places restrictions and limitations on the exercise of the
pleasure and is further limited by Art. 311 (2).
Restrictions on the Doctrine of Pleasure-These are as under(i) The pleasure of the President or Governor must be
exercised in accordance with the procedural safeguards
provided by Art. 311.
(ii) The tenure of the Supreme Court Judges Art. 124, High
299
Court Judges Art. 218, Auditor-General of India Art. 148 (2). The
Chief Election Commissioner Art. 324, and the Chairman and
members of the Public-Service Commission Art. 317 are not
dependent on the pleasure of the President or the Governor.
(iii) The doctrine of pleasure is subject to the Fundamental
Rights.
Constitutional Safeguards Available to Civil Servants-Art. 311 of
Indian constitution provides the following two safeguards to
civil servants against any arbitrary dismissal from their posts1.
No
Removal
by
Subordinate
Authority-Art.311
(l)saysthatacivil servant cannot be dismissed or removed by any
authority subordinate to the authority by which he was
appointed. This does not mean that the removal or dismissal
must be by the same authority who made the appointment or
by his direct superior. It is enough if the removing authority is of
the same oi co-ordinate rank as the appointing authority, in
Mahesh (Vs. State of U.I'., A.I.R. 1995 S.C. 20, the person
appointed by the Divisional Personnel (Miner, E.I.R., was
dismissed by the Superintendent, Power, E.I.R fhe Court held
the dismissal valid as both the officers were of the same rank.
2. Reasonable Opportunity to Defend be Given-Art. 31112) lays
down that a civil servant cannot be dismissed or removed or
reduced In rank unless he has been given a reasonable
opportunity to show cause against the action proposed to be
taken against him.
Originally, this opportunity to defend was given to a civil servant
300
311
enjoined the State to direct its policy towards securing(a) that the ownership and control of material resources of
the Community are so distributed as best to subserve the
common good; and
(b) that the operation of the economic system does not result
in the concentration of wealth and means of production to the
common detriment. The Industrial Policy Resolution of 1948
clearly indicated that the management of State enterprises will
as a rule be through the medium of Public Corporation. All
these factors led the growth of Public Undertakings as an
instrument for the economic structurization of the Country
because in a public body accountability, freedom of action,
public purpose and conscience, corporate spirit and concern for
consumer could be legitimately expected.
(ii) Departmental Undertakings-There is no consistent pattern
visible in the choice of government for the various forms of
organisations. A large number of public enterprises are run by
the departments as well. Railways, Posts and Telegraphs,
Telephones and numerous defence industries are run
departmentally. There is a separate Ministry for Railways. Posts,
Telegraphs and Telephones are under another Ministry.
Defence industries fall under the Ministry of Defence.
(iii) Government
Companies;
Non-Statutory
Public
Undertakings-Apart from government departments and
statutory Public Corporations, another pattern utilized to run
Public Undertakings is that of a government Company. In some
323
4. Depending
on
the
provisions of the Statute by or
under
which
a
public
Corporation is "created such
Corporation is by and large an
Autonomous
body.
The
Corportion is its own master in
day-to-day management and
administration.
5. Functionally.
Public
Corporations may be classified
into four 'ill-assorted groups(i) Commercial Corporation;
(ii) Development Corporation;
(iii) Social Service Corporation
and
(iv) Financial Corporation.
325
Q. 30 (d) State the facts and principles of law laid down in any
ofthe following cases- (i) Hari Shankar Bagla and Others Vs.
State of M. P. A.I.R. 1954, S.C. 465. (ii) Superintendent and
Remembrancer of Legal Affairs Vs. Corporation of Calcutta
A.I.R. 1967 S.C. 997. (iii) Bharat Bank Ltd. Vs. Employees of
Bharat Bank A.I R. 1950, S.C. 188. (iv) A. K. Karipakand others
Vs. Union oflndia and others A.I.R. 1970, S.C. 150. (v) State of
Rajasthan Vs. Mst. Vidyavati A.I.R 1962, S.C. 933.
Ans. (i) Hari Shankar Bagla and Others Vs. State of M. P.
Subject-This case deals with the delegation of legistative powers
specially the permissible limits of such delegation and the
Constitutional validity of Delegated Legislation.
Facts of the Case1. Shri Harishankar Bagla together with his wife Smt. Gomti
Bagla, was arrested by Railway Police at ltarsi Railway Station on
29th Nov. 1948. They were arrested for the violation of certain
Central Acts and order.
2. In their possession was found 'new cotton cloth' weighing
over 6 maunds, which it was alleged, they were transporting
from Bombay to Kanpur without any permit. It was alleged, that
their acts violated the S. 7 of Essential Supplies (Temporary
326
jurisdiction".
But this power of superintendence has been excluded from the
tribunals constituted by or under any law relating to Armed
Forces. The term "Tribunal" in Art. 227 means a person or body
of persons, other than a court set up by the state for deciding
the rights between contending parties in accordance with the
rules having the force of law and doing so not by way of taking
executive action but on determining a question. In a Calcutta
case P.C. Guha Vs. B.A. Basil, it was pointed out that the word
"Tribunal"1 meant all agencies, whether courts or not
performing the duty of deciding disputed questions of right
between parties on behalf of and under the sanction of the
state and in accordance with state-made laws.
The supervisory powers of the High Court over tribunals are
very broad. It was not confined to administrative
superintendence
only
but
includes
even
judicial
superintendence. Vide: Hari Vishnu Vs. Ahmatl Ishaq, AIR 1955
S.C. 233. As a matter of fact, the powers conferred under this
Article are broader than the powers conferred U/Art. 226.
Through its powers to issue certiorari and prohibition U/S. 226,
a High Court can annul the decision of a Tribunal while U/Art.
227 it can do that and something more, it can issue further
directions in the matter
In Waryam Singh Vs. Amar Nath, AIR 1954 S.C. 215, it was held
that the power of superintendence is to be exercised most
sparingly and only to keep the courts and tribunals within the
bounds of their authority and jurisdiction and not for correcting
329
office; or
(b) He is carrying on any business, sever his connection with
the conduct and management of such business; or
(c) He is practicing any profession, cease to practice such
profession.
Appointment
of
Chairperson
and
Members
on
Recommendations of Selection CommitteeAccording to S.
4(1) of the Act, the Chairperson and Members shall be
appointed by the President after obtaining the
recommendations of a Selection Committee consisting of(a) The Prime Minister-Chairperson;
(b) The Speaker of the House of the People-Member;
(c) The Leader of opposition in the House of the PeopleMember;
(d) The Chief Justice of India or a Judge of the Supreme Court
nominated by him-Member;
(e) One eminent jurist, as recommended by the chairperson
and members referred to in clauses (a) to (d) above, to be
nominated by the President-Member.
(2) No appointment of a Chairperson or a Member shall be
invalid merely by reason of any vacancy in the Selection
Committee.
(3) The Selection Committee shall for the purposes of selecting
the Chairperson and Members of the Lokpal and for preparing a
panel of persons to be considered for appointment as such,
constitute a Search Committee consisting of at least seven
persons of standing and having special knowledge and expertise
335
Special Court.
(12) Save as otherwise provided, the manner and procedure oi
conducting a preliminary inquiry or investigation (including such
material and documents to be made available to the public
servant) under this Act, shall be such as may be specified by
regulations.
2. Persons Likely to be Prejudicially Affected to bo Heard
According to S. 21(1) of the Act, if, at any stage <>! the
proceeding, the Lokpal(a) Considers it necessary to inquire into the conduct of any
person on other than the accused; or
(b) Is of opinion that the reputation of any person other than
an accused is likely to be prejudicially affected by the
preliminary inquiry, the Lokpal shall give to that person a
reasonable opportunity of being heard in the preliminary
inquiry and to produce evidence in lie. defence, consistent with
the principles of natural justice.
3. Lokpal may Require any Public Servant or any < )ihn
IVrtous to Furnish Information, etcAccording to S. 22(1) of
the Act, subject to the provisions of this Act, for the purpose of
any preliminary inquiry or investigation, the Lokpal or the
investigating agency, as the case may be may require any public
servant or any other person who, In its opinion, is able to
furnish information or produce documents relevant to such
preliminary inquiry or investigation, to furnish any such
information or produce any such document.
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