Procedural ultra vires- Procedural ultra vires may happen when there is a failure

to comply with mandatory procedural requirements. All procedural requirements

as laid down by statute should be complied with.
The doctrine now refers to not only the lack of power to do any act but also to
any situation like improper or unauthorized procedure, purpose or violation of the
law of natural justice in exercising the power that is lawfully conferred on the
authority concerned.
Sukhalal Munda vs State Of Odisha And Others on 30 March, 2017

In Shri Sitaram Sugar Company Ltd. v.

Union of India, (1990) 3 SCC 223 : AIR 1990 SC 1277, the apex Court held:
"A repository of power acts ultra vires either when he acts in excess of his power
in the narrow sense or by acting in bad faith or for an inadmissible purpose or for
irrelevant grounds or without regard to relevant considerations or with gross
unreasonableness. Any act of the repository of power, whether legislative,
administrative or quasi-judicial, is open to challenge if it violates the provisions
of the Constitution or the governing Act or the general principles of the law of
the land or it is so arbitrary or unreasonable that no fair minded authority could
ever have made it."

The scope of the jurisdiction of this Court in dealing with writ petitions under Art.
32 was examined by a Special Bench of this Court in Sint. Ujjam Bai v. State of
Uttar Pradesh(1). This decision would show that it was common ground before
the Court that in three classes of cases aquestion of the enforcement of the
fundamental rights may arise; and if it does arise, an application under Art.
32 will lie. These cases are: (1) where action is taken under a statute which is ultra
vires the Constitution; (2) where the statute is intra vires but the action taken is
without jurisdiction; and (3) where the action taken is procedurally ultra vires as
where a quasijudicial authority under an obligation to act judicially passes an
order in violation of the principles of natural justice.

This again was a case in which the authority had no jurisdiction under the Act to
take proceedings for assessment of tax and it made no difference that such
assumption for jurisdiction was based on a misconstruction of statutory
provision.It is necessary perhaps to refer here to another class of cases which have
sometimes been characterised as cases of procedural ultra vires. When a statute
prescribes a manner or form in which a duty is to be performed or a power
exercised, it seldom lays down what will be the legal consequences of failure to
observe its prescription. The courts must, therefore, formulate their own criteria
for determining whether the procedural rules are to be regarded as mandatory in
which case disobedience will render void or voidable what has been done, or as
directory in which case disobedience will be treated as a mere irregularity not
affecting the validity of what has been done.Smt Ujjam Bai vs State Of U.P on
10 April, 1962

Literally, ultra vires means outside power or outside jurisdiction. The

determination of this gives rise to a critically examination of the relevant section
of the statute. The doctrine of ultra viresnormally occurs in a variety of ways.
These include the following.

Constitutional Ultra Vires

This shows the supremacy of the constitution in countries having written

constitution. It also shows the inconsistency rule. Under this aspect of the
doctrine, it may also be held that the power conferred on an authority is too much
or in excess of the constitutional pro visions. This was the case in Doherty v.
Balewa – where the court held that the power conferred on the Prime Minister by
Parliament through the Commission and Tribunals of Inquiry Act 1961 was in
excess of the constitution, since the law permitted the setting up of an inquiry
throughout the Federation when the contemplation of the constitution was the
Federal Capital Territory, Lagos.

Also, the court may hold that the power was unlawfully given or unlawfully
exercised. In Williams v.
Majekodunmi – the court agreed that under emergency
the administrator was lawfully empowered to act under the Emergency
Power Act 1961; the order to restrict the plaintiff’s movement was
declared ultra vires since there was no justification for it. This principle accords
with the hierarchy of laws. Thus, power to be exercised must be within the
contemplation of the constitution.

Substantive Ultra Vires

This occurs when an act performed or powers exercised by the administrative

agent are in excess of the powers conferred by statute or violates a constitutional
or statutory provision. It can also be expressed in terms of want or excess of
jurisdiction (No legal backing, action taken by the wrong person or body,
improper appointment or constitution of the body authorized to act, action taken
in respect of a wrong person or subject-matter and imposition of a wrong order
or penalty by the person or body authorized to act).

Take Notice that a municipal corporation possess and exercises the following
powers:

(a) Those granted in express words;

(b) those necessary or fairly implied or incidental to the
powers expressly granted; and
(c) those essential to the accomplishment of the declared objects and
purposes of the corporation not simply convenient but indispensable.

Inconsistency with Statute

An administrative act is ultra vires here to the extent that it conflicts with or
contradicts the parent statute or the constitution. In Powell v. Hay – it was held
that a byelaw cannot permit what the statute expressly forbids and vice versal,
though it can forbid what would otherwise be lawful at common law. Therefore,
where the enabling statute requires a power to be exercise in a certain form, the
neglect of that form renders that exercise of power ultra vires.
Thus, in Jackson Standfield & Sons v. Butterworth – the Court of Appeal held
that oral permission from a borough surveyor to build in the excess of the amount
specified in the license was invalid since a written license was contemplated by
the Act.

Procedural Ultra Vires

The court will quash the decision of tribunals for non-compliance with statutory
procedure that is mandatory. Failure to observe procedural requirements leads to
objections and criticisms. In Agricultural Horticultural and Forestry Industrial
Training Board v. Aylesbury Mushrooms Ltd., the Industrial Training Act, 1964,
at section 1(4) required the Minister before making an order to consult any
organization appearing to him to be a representative of the substantial number of
employees engaged in the activities concerned. Failure to consult the body
representing the mushroom growers association made the order invalid.

Again, in Chairman Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd. –
it was held that the assessment under which the claim is brought where not made
in accordance with the law, the claim therefore fails. In Rayner v. Stopney
Corporation, a local authority’s failure to comply with a regulation requiring the
service of notice before making an order in respect of an ‘unfit house’ was held a
render its proceedings void.

Error of Law on the Face of the Record

This could manifest where the authority has refused a make use of some relevant
material in reaching its decision or where the authority has taken cognizance of
some important matters which influenced its decisions or where there has been a
procedural error (such breach of natural justice & or unlawful delegation). Such
error must be clear and obvious from the record of proceedings of the inferior
agency. It must be readily ascertainable by the Superior Court exercising
supervisory powers. Unless the error is manifest on the face of the record or
award, the decision cannot be challenged on proceedings for an order of
certiorari. The record here includes the words used in giving oral decision and the
formal order as well as all those documents which appear therefrom to be the
basis of the decision. This review is for judicial acts and not administration or
legislative acts.

Lastly, failure to give reasons will not itself justify the quashing of a decision;
unless such failure can properly give rise to an inference that there has been an
error of law. Thus, in Pad Field v. Minister of Agriculture, Fisheries and Food, it
was held that the court was not prepared to infer that there were no reasons or bad
reasons, just because none were stated by the local authority.

Failure to Perform a duty

This is a ground on which a writ of mandamus can be granted to an aggrieve

party. In R. v. Greater London Council Ex parte Blackburn,the failure of the
Commissioner of Police or his representatives to stop illegal gamming was held
to be ultra vires. The agency cannot bind itself to exercise its discretion in a
particular manner. Discretion must be exercised freely with no prior restraints
imposed by the agency itself.

Abuse of Powers

The courts will intervene not only to prevent power being exceeded but to prevent
their being abused. This is control of improper exercise of power. Exercise of
power for an improper purpose is not allowed, even if the act is prima
facie lawful. Exercise of power must take into account all the relevant
considerations.

Improper Motive or Bad Faith

An exercise of power for an improper purpose is invalid. But, if the exercise
fulfills the purpose, then extraneous motive is immaterial. In Sydney Municipal
Council v. Campbell – Council was empowered by statute to acquire land by
compulsory purchase in order to make streets or to carry out improvement in or
to remodel the city. The council made a compulsory purchase order to acquire
land not for any of the above purpose; but for the realization of increased profit
in the land’s value. The Privy Council held that an injunction should be granted
against the council.

Lastly, if discretionary power is conferred without reference to purpose, it

must be exercised in good faith and in accordance with such implied purpose as
the court will attribute to the intendment of the legislature: R. v. Bansley Metro
Borough Council Ex Parte Hook. Estoppel.

This is technically a rule whereby a party is precluded from denying the existence
of some state of facts which he had previously asserted and on which the other
party has relied to his detriment. It may be words, conduct, writing and made
negligently, carelessly, fraudulently or innocently. If the statement is of an
existing fact, the principle may be applied so as to prevent a public authority from
exercising a discretion vested in them by statute or under the prerogative. The
case of Robertson v. Minister of Pension is illustrative of the point.

Finality Clause

Declaration by statute that the decision of a tribunal is final does exclude judicial
review by means of certiorari. The word final only means without appeal. It
makes the decision final on the facts not law: Re Gilmore’s Application per
Denning L.J.
The term 'ultra vires' signifies a concept distinct from "illegality" In the loose or
the widest sense every thing that is not warranted by law is illegal hut in its proper
or strict connotation "illegal" refers to that quality which makes the act itself
contrary to law. The term 'ultra vires' points to the capacity or power of the person
to do that act. It is not necessary that an act to be ultra vires must also be illegal.
It may be but it may as well, not be. An act may be illegal because it is prohibited
by law or for reasons like fraud, undue influence or because it may be opposed to
public policy. These reasons are not occasioned by the absence of any power in
the person to do the act. The essence of the doctrineof ultra vires is that the act is
done in excess of the powers possessed by the person in law.
This doctrine proceeds on the basis that the person has limited powers. In S. R.
Das's 'Law of Ultra Viresin British India' Tagore Law Lectures. 1903, the law is
stated thus at page 12 "In speaking of an ordinary citizen we do not speak of any
action being ultra vires To an ordinary citizen whatever is not expressly
forbidden by the law is permitted by the law. It is only when the law has called
into existence a person for a particular purpose or has recognised its existence --
such as the holder of an office, a body corporate etc -- that the power is limited
to the authority delegated expressly or by implication and to the object for which
it was created In the case of such a creation the ordinary law applicable to an
individual is somewhat reversed Whatever is not permitted, expressly or by
implication, by the constating instrument, is prohibited, not by any express
prohibition of the Legislature but by the doctrine of ultra vires "
Anand Prakash And Anr. vs Assistant Registrar, ... on 27 January, 1966

Lord Selborne in Attorney General v G. E. Rly. Co., (1880) 5 AC 473 (478) laid
down the canon of construction of the doctrine of ultra vires as follows:
"I agree with Lord Justice James that this doctrine ought to be reasonably, and
not unreasonably understood and applied, and that whatever may fairly be
regarded as incidental to. or consequential upon those things which the
Legislature has authorized, ought not (unless expressly prohibited) to be held by
judicial construction, to he ultra vires Referring to these observations of Lord
Selborne Jagannath Dass. J. observed: Bishnu Charan v Stale of Orissa, AIR 1952
Orissa 11 at p. 16:
"There can, therefore, be no doubt that where the intention of an Act in conferring
an express power is frustrated by not construing it as necessarily implying another
incidental power of however substantial in nature, the same must be implied in
order not to bring about frustration of the express intention."

There are two principal forms of judicial control over delegated legislation. The first
relates to the procedure which the Administration is required to follow in making
subordinate laws and includes the laying before Parliament of these laws. The second
relates to the Subordinate laws themselves. It is, in the absence of statutory words to the
contrary, always possible to challenge these laws on the ground that the Act under which
they are made does not in fact give the necessary authority. These two forms of control
are sometimes referred to as the doctrines of procedural and substantive ultra vires or as
defects of procedure and substance."

The doctrine of substantive ultra vires can be invoked whenever the subordinate law-
making authority has gone outside or beyond the powers conferred on them by the
enabling statute. In other words, all that the court can do is to see whether the exercise
or the purported exercise of the power by the delegate falls within the peripheral limits
of power conferred by the enabling Act. The Court has no power at all to enquire into 'the'
reasonableness or the policy, the sense or any other aspect of the transaction. The court
should construe delegated or subordinate legislation in the light of enabling statute
generally and in particular so as to be consistent with its substantive provisions and in
conformity with the terms of the enabling power.
S. Rama Rao And Ors. vs The Jawaharlal Nehru ... on 8 August, 1977

When delegated legislation goes beyond the scope of the authority conferred by, or it is
in conflict with, the parent statute it is invalid and this is known as substantive ultra vires.
When the regulation-making authority deviates from the procedure, if any, prescribed by
the parent statute for making regulations, it is known as procedural ultra vires.