Académique Documents
Professionnel Documents
Culture Documents
JUNE 2016
PREPARED BY:
JAYANTH.S [ ASST.PROF]
BANGALORE.
AL -AMEEN COLLEGE OF LAW
BANGALORE
Instructions to Candidates:
Marks:04X16=64
Introduction
1.The main object of the Government in any country is to establish peace and to
ensure social security. The state , through the instrumentality of law regulates the
conduct of man. Law may be classified into two heads 1) Private law 2) Public law
.
2.Administrative law is one of the most important and significant branches of the
public law. It determines the organization, powers, and duties of administrative
authorities, known as Executives or Government Officials. Administrative law is
law relating to Public administration.
3.Earlier it was regarded as the part and parcel of constitutional law . It witnessed
rapid growth and development in the 20 th century, with the expansion of
Governmental machinery and increase in the disputes between the Government
and the individuals, most of the cases of the Supreme court involve judicial review
of the administrative action. Therefore rapid growth and development of this
branch of law occurred in the 20th century.
Ivor Jennings: Administrative law is the law that determines the organization ,
powers, and duties of administrative authorities.
2. The main reason for the rapid growth and development of administrative law
is the radical change of Government’s philosophy from Laissez faire to welfare
state. This change resulted in the expansion of governments functions. The
expressions Laissez Faire means individualism, self help, minimum government
control maximum free enterprise.
3. Social welfare state means a state which aims to promote socio economic
welfare of the people .This idea of establishing a welfare state imposed an
obligation on the Government to take care of its citizens and actuated the growth
and development of administrative law .
Followings are the reasons for the growth and development of Administrative Law
in a fast pace;
Constitutional law is the body of rules, which determine the constitution of the
state. In simple words it is the law of the land. Prof A.C Diecy defines it as
Constitutional law includes all the rules which directly or indirectly affect the
distribution or the exercise of the Government power in state.
1. Constitutional deals with structure and rules that regulate the functions ,
while Administrative law deals with a detailed study of such functions.
3. Indian constitution lays down the general principles of the three organs of
the government viz. Executive, Legislature, Judiciary and their functions inter se
towards the citizens, while Administrative Law is concerned with that part of
Constitutional Law, which deals with the powers and functions of the
administrative authorities.
4. Constitutional law deals with Constitutional status of the ministers and civil
servants , while administrative law deals with the organization and working of
various departments of the Government.
In India , the activities and powers of the Government have been expanded and
increased and hence there is a greater need for the enforcement of rule of law and
judicial review . For this purpose several provisions are made in the statutes
providing for right of the Constitution provide for extraordinary remedies.
Conclusion
Administrative law was earlier part of Constitutional law , but due to the increase
in Governmental functions and increase of administrative authorities ,
administrative law was considered a separate study for the purposes of controlling
mal -administration and injustice . But administrative law has its beginnings in the
20th century and still it is in its development stage , it needs to codified and
development further more that is why it is said that it is not an end in itself but only
a means to an end.
2. But the doctrine of separation of powers was propounded for the first time
by the french jurist Montesquieu . He formulates this theory in his book the spirit
of laws published in 1748.
a) The legislature b) The Executive c) The Judiciary .So these three powers and
functions of the government in a democratic setting must be kept separate , so that
there is concentration of power in the hands of one organ of the government
because absolute power corrupts absolutely.
It is very difficult to define exactly to define what separation of powers means but
many have attempted ti define it .
Wade and Philips : According to him , this theory means ‘the same set of persons
should not compose more than one organ of Government.’
So this definition shows that one organ of the government should not exercise the
functions of the other organs . In other words :
1. The legislature cannot exercise the powers of the Executive or Judiciary ;
1. The doctrine of separation of power has been accepted and adopted by the
constitution of USA . In America , the legislative powers are vested in the congress
( Article 1) , the executive powers in the president ( Article 2) and the judicial
powers in the Supreme court and its subordinate courts ( Article 3).
2 .In America there is a system of checks and balances to see that one should not
encroach upon the other organs . However , in view of the development of
administrative law and expansion of administrative machinery , strict compliance
of the doctrine is not possible. Therefore the doctrine of separation of powers has
been relaxed in certain cases.
3. For instance, the president being the Executive head encroaches upon the
Legislative power , while giving assent to bills.
Similarly the congress being the Legislative organ , controls the executive by the
power of impeachment of the president .
Position in UK
The legislation of great Britain enjoys judicial powers as well . The house of
Lords , the upper house of the Legislature is the highest court of appeal in Great
Britannia . The cabinet through the King can dissolve the House of commons.
Cabinet through the king introduces the bill in the Parliament , certain bills can
only be introduced by cabinet through the King . It is the cabinet , which
formulates ordinances through the King . However these three powers are vested in
different organs. But, one organ controls the powers of the others. E.g: the house of
lords being a legislative body exercises Judicial functions also .
Position in India
5. in the above case Ray CJ has observed that our constitution recognizes
division between three main powers of the government. Judicial power in the sense
judicial power is vested in the Judiciary and similarly the executive and legislative
powers are vested in their respective spheres. However it is not the intention that
the powers of the powers of judiciary should be passed on to or shared by the
Executive or the Legislature or that the powers of the Legislature or the Executive
should pass to or shared by the Judiciary.
6. In the same case Beg J observed that Separation of powers is a feature of the
basic structure of the Constitution of India. This constitutional scheme cannot be
changed even by resorting to amending process under Article 368 of the
Constitution.
Conclusion
Introduction:
Definition:
“When the function of legislation is entrusted to organs other than the legislature
by the legislature itself, the legislation made by such organs is called delegated
legislation”.
Even though there is no specific bar in the Constitution of India against the
delegation of legislative power by the legislature to the executive, it is now well
settled that essential legislative functions cannot be delegated by the legislature to
the executive. Some of the functions which cannot be delegated are also called as
impermissible delegation. Some of them are as follows:
The controls which are exercised over delegated legislation may be divided
into three categories:
1. Judicial control
2. Legislative control
3. Procedural control
1. Judicial control or Doctrine of ultra vires:
2. In the control mechanism, judicial control has emerged as the most
outstanding controlling measure. Judicial control over delegated
legislation is exercised by applying two tests:
(a) Substantive ultra vires and
(b) Procedural ultra vires.
Ultra vires means beyond power or authority or lack of power. An act may
be said to be ultra vires when it has been done by a person or a body of
persons which is beyond his, its or their power, authority or jurisdiction.
When an act of Legislature enacts in an excess of power, conferred on the
Legislature by the Constitution, the legislation is said to be ultra vires the
Constitution. On the same principle, when a sub ordinate legislation goes
beyond what the delegate is authorised to enact he acts ultra vires. This is
known as substantive ultra vires.
Substantive ultra vires means that the delegated legislation goes beyond
the scope of the authority conferred on it by parent statute or by the
constitution. It is a fundamental principle of law that a public authority
cannot act outside the powers i.e, ultra vires.
In Dwarka Prasad Vs. State of U.P. the U.P. Coal Control Order, 1953 was
issued under the Essential Supplies. Even though the parent Act was
constitutional Clause 3(2)(b) of the order was held Ultra vires by the
Supreme court being violative of Article 19(1) not (i)(g) of the Constitution
of India.
In Air India Vs. Nergesh Meerza, a regulation framed by Air India provide
that services of an Air Hostess could be terminated if she because pregnant
was held arbitrary, unreasonable and violative of Articles 14 and 15 of the
Constitution.
Conclusion:
Introduction:
1. Prerogative remedies
2. Constitutional remedies
3. Statutory remedies
4. Equitable remedies
6. Parliamentary remedies
7. Cousel d’ etat
8. Ombudsman and
9. Self help.
In India, the founding fathers were aware of the part played by the prerogative
writs in England, therefore they made specific provisions in the Constitution
itself empowering the Supreme Court and High courts to issue writs.
In India, the courts exercise various kinds of writs for the enforcement of
Fundamental Rights they are as follows:
2.Writ of Mandamus
3. Writ of prohibition
5. Writ of Certiorari
The rule of Locus Standi is strictly followed except in public interest litigation. The
petitioner has to prove that he has a right to enforce public duty in his favor.
The Writ of Mandamus may be issued against Government, semi -Government and
all Public authorities (Judiciary, Tribunals, Universities, Colleges) IN short , it is
available against all administrative authorities.
Object:
Conditions:
Manjula Majari vs Director of Public Instructions 1952, in this case the petitioner
applied for the writ of Mandamus since the respondent , Director of Public
Instructions did not include his book in the list of prescribed books. The orissa
High court refused the petition on the ground that the respondent had a
discretionary power to select good books.
Conclusion
Introduction:
Audi Alteram Partem or the rule of fair hearing ( Hear the other side)
The audi alteram partem rule means that no should be condemned unheard.
This the second fundamental principle of natural justice and hence a basic
requirement of rule of law. According to de Smith” A party is not to suffer in
person or in purse without an opportunity of being heard”. It is the first principle of
civilized jurisprudence and is accepted by the laws of Men and God. In short the
principle is that before an order is passed against any person reasonable
opportunity of being heard must be afforded to him.
This rule insists that the affected person must be given an opportunity to produce
evidence in support of his case. He should be disclosed the evidence to be utilized
against him and should be given an opportunity to rebut the evidence produced by
the other party.
Generally, the maxim includes two ingredients (i) notice and (ii) hearing.
(i) Notice:
A basic principle of natural justice is that before any action is taken, the
affected person must be given notice to show cause against the proposed action
and seek his explanation. It is a sine qua non of fair hearing. Any order passed
without giving notice is against the principles of natural justice and is void ab
intio. It is not enough that notice in a given case be given. It must be adequate
also. The question of adequacy of notice depends upon the facts and
circumstances of each case. However, a notice in order to be adequate must
contain the following;
1. Time, place and nature of hearing.
ii) Hearing:
The second requirement of the audi alteram partem maxim is that the
party concerned must be given an opportunity of being heard before any
adverse action is taken against him.
Conclusion:
Q.6. Examine the contractual liability of the State with the help of
leading cases.
Introduction
Government Contract
A contract entered into by the Government must fulfil the essentials of a valid
contract under section sec 10 of the Indian contract Act 1872, and also the
conditions enshrined under Art 299 (1) of the Indian Constitution . There fore a
Government contract to be valid the following conditions are to be satisfied ;
Article 298 of the Indian Constitution empowers the Union of India and States to
carry on any trade or business by entering into contracts through its executive
power.
Historical background :
In England the crown enjoyed immunity from liability on the ground of a well
known maxim the king can do no wrong . However such immunity was never
enjoyed by the Crown in respect of Contractual Liability .
In Bank of Bengal vs. The United Company 1831- The Government( The East
India Company) was held liable for the contractual liability. But the Government
was held not liable for contractual liability on the ground of Sovereign power in
Nobin Chunder vs Secretary of State 1875- In England ,the Crown proceedings
Act 1947, abolished sovereign immunity and held the Government liable like an
employer or an ordinary individual .In India , according to Sec 79 of the Civil
Procedure Code, 1883, the Government is liable in a contract like a private
individual.
Constitutional Provisions:
Article 298 of the Constitution empowers the Government ( Union of India and the
States) to carry on any trade or business by entering into contracts through its
executive power.
Article 299(1) lays down the procedure for entering into contract with the
Government . Accordingly , the contract with the Government to be valid , the
following conditions are to be satisfied:
Earlier , the above rules were strictly followed to safeguard the interests of the
Government. In course of time , strict adherence to the above conditions became
impracticable. In the interests of the parties contracted with the Government ,
courts liberalized the strict compliance of the above rules. However , the
Government contract must be writing and the oral contract is not enforceable.
Union of India vs. A.L Rullia Ram AIR1963 - The defendant Government servant ,
the Chief Director of Purchase issued tenders for purchase of certain quantity of
cigarettes and the plaintiff’s tender was accepted and signed by the Chief Director .
But no formal agreement was entered into for the purchase. The plaintiff sued the
Government for specific performance of the contract . The defendant
(government ) contended that the contract was not enforceable since there is no
formal agreement. The Supreme Court denied this contention and held in favor of
the plaintiff that the contract was enforceable.
The government contract to be valid must be in the name of the Governor in case a
contract by State and the President in case a contract by the Union of India.
2. Person Authorized:
The Government contract to be valid , it must have been entered into by the person
so authorized by the President or Governor as the case may be . Such authority
may be expressed or implied. A contract under an implied authority is valid and
enforceable as in the case of :
Bhikraj Jaipuria vs. Union of India 1962 - A contract for the supply of large
quantities of food grains was entered into between the Plaintiff and the defendant
Government’s servant, the divisional superintendent , Eastern Railways. But, there
was no express authority to the Division superintendent to enter into such contract.
The plaintiff supplied the food grains and the same was distributed to the
employees, and part of the amount also was paid . In an action for payment of the
balance, the defendant Government was held liable , on the ground that the
Divisional Superintendent had an implied authority to enter into the contract.
Government contract to be valid , it must have been entered into by the person so
authorized on behalf of the President or Governor as the case may be and it must
be made in the name of the President or Governor as the case may be . Otherwise ,
it is not valid.
Karmashi vs Bombay 1964 - IN this case an agreement for the supply of canal
water for irrigation purposes was entered into between the plaintiff and the
P.W.D.Minister , through some letters. But , there was no formal agreement to that
effect i.e. In the name of the Governor . The supreme Court held the contract void
and not enforceable.
Conclusion
Under Article 299(1) the government can enter into a contract with a private
individual , and the government can be held liable for the breach of contract
provided all the three conditions are fulfilled properly . Any contract , violating the
three conditions is defective , and cannot be ratified by the Government. Further
more Article 299(2) protects the President and Governor from personal liability
arising out of such contracts.
Q.7. Discuss the various controls over the working of Public
Corporations in India.
Introduction
1. In the beginning of the late 19th century there has been a change of the role
of the state from police state to the Welfare state. In the Police state scenario the
state was concerned only with the maintenance of law and order , and making sure
that the people obeyed the laws made by the sovereign , it was not bothered about
the welfare of the people
2. But in the late 19th century after the end of the second world war , the role
of the state started to change from a police state to a welfare state. Welfare state
means a state which provides to its citizens a wide range of social services . It is
based on the cradle to grave policy and womb to tomb policy , where the state
actively takes part in welfare of its citizens.
3. Because the role of the state changed from that of a Police state to a welfare
state , the government involved in the trade , commerce and business for the
purpose of social welfare. Article 298 of the Indian Constitution empowers the
Union of India and states to carry on any trade or business by entering into contacts
through its executive power.
1. Departmental undertaking
Departmental Undertakings
Departmental undertakings are those that are run directly by the department
concerned . The object of these undertakings is for developmental purposes .
Railways , post office, Telegraph, Telephone, etc are run directly by the concerned
department or ministry.
Government Companies
For the purposes of this act a Government company means any company in which
not less than 51% of the paid up share capital is owned by the central government
or the state government or partly by the center and state and includes a subsidiary
company to a government company.
There are some similarities and differences between a governmental company and
a private company.
Differences include : 51% of the paid up share capital is held by the government
and the purchase of the government shares can be made only after the permission
of the government , and the managers of the government company can be
appointed by the concerned Government.
Government companies are not included in the meaning of the term State , and its
employees are not government servants . In the case of Rajasthan Electricity board
vs Mohan lal 1987 , the Supreme court explained the meaning of the term ‘other
authorities, as any authority established by the constitution of India or by the
Statute and its powers are given by the force of law comes within the meaning of
the term state and whether it performs Governmental functions or not.
Public Undertakings
Public undertakings are Non statutory undertakings , and they perform their
functions on behalf of the government as an agency of the government. They are a
Hybrid organism having the features of a Government department and of a
business company .
3. Limited by the statute : A Public corporation has those rights and exercises
those functions entrusted to it by its constituent statute by which it is created . Any
action of such corporation not expressed or impliedly authorized by the statute is
ultra vires and cannot bind the corporation . Such ultra vires has no legal effect
whatsoever.
6. Rule making power : The constituent statute may delegate rule making
power to a Public Corporation . Such rules , regulations and bylaws are binding
and enforceable unless they are ultra vires the enabling Act and the Constitution of
India.
A) Judicial Control
B) Parliamentary Control
D) Public control.
Judicial control
Parliamentary Control
1. Public Corporations are created and owned by the State. They are financed
from the funds supplied from the government that requires to exercise their powers
in public interest. It is therefore necessary for The Parliament to exercise control
over these Corporations.
However the recommendations of the committee are advisory and therefore not
binding on the government.
Government Control ( Ministerial control )
Since the government is the custodian of public interest , it also exercises control
and supervision over the affairs of public corporations. However government
control does not mean governmental interference in the day to day working of the
Corporation , which is highly destructive for the success of the corporation.
The public corporations are created for the benifit of public and to promote public
interest. The Consumer Protection Act 1986 makes provisions for the
establishment of Central consumer Protection council and the State Consumer
Protection Councils to promote and protect the rights of the consumers..These
Councils are expected to be useful in controlling the public enterprises including
public corporations in the interest of the consumers. They will be helpful in
curbing the growth of corrupt practices.
Conclusion
The main objective behind government venturing into trade and commerce is for
promoting the welfare of the people and for economic development. The
government enters in trade and commerce through the three forms and tries to
accomplish the task of social and economic equality , but when the Public
corporations are given the power there may be chances of misuse of power
therefore the mechanisms of control mentioned above will make sure that the
corporations performs its duties properly.
MARKS:2X08=16
Lok pal literally means caretaker of the people , it is established under The Lok Pal
and Lokayuktha Act 2013 , for the center and the states for the purpose of enqiring
and prosecute offenses relating to allegations of corruption under the Prevention of
Corruption Act.
Lokayuktha are established in the state level , even before the passing of the Lok
Pal and Lokayuktha Act , many states established the Lokayuktha , for eg, the state
of Karnataka established the Lokayuktha under the Karnataka Lokayuktha Act
1986.
The Institution of Lok pal has an enquiry wing and a prosecution wing , if the LoK
pal considers that a complaint given by a private individual has substance , it can
order preliminary enquiry to its Enquiry Wing or the CBI and based on their report
a charge sheet is filed by the Prosecution Wing before the Special courts
established Central Government.
B) DROIT ADMINISTRATIFF
Introduction:
Dorit Administratiff is a very old system. It was regularly put into practice
by Napoleon in the 18th century. Napoleon favoured freedom for the administration
and also favoured reforms. He wanted an institution to give relief to the people
against the excesses of administration. It was therefore, that in 1799 Conseil d’
Etat was established. The main aim of such institution was to resolve difficulties
which might arise in the cause of the administration. But with change in time it
started exercising judicial powers in matters involving administration. The position
involving administration the Conseil d’ Etat is final as it receives direct complaints
from the citizens.
Under the French legal system, known as droit administraiff, there are two
types of laws and two sets of Courts independent from each other. The
ordinary courts administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as between subject
and the state. An administrative authority or official is not subject to the
jurisdiction of ordinary civil courts exercising powers under the civil law in
disputes arising between the private individuals. All claims and disputes in
which administrative authorities between the private individuals. All claims
and disputes in which administrative authorities between the private
individuals. All claims and disputes in which administrative authorities or
officials are parties do not come within the scope of the jurisdiction of
ordinary courts and they are to be dealt with and decided by administrative
tribunals headed by Conseil d’ etat.
Conclusion: Conseil d’ etat consists of body of men who are on the one side
the confidential advisors of the government and on the other decide the cases
of the subjects against the administration. In the latter case, they act as
uncommitted judges and if necessary condemn the executive act. This has
made the institution efficious. However, the researchers state no single
institution had done so much for the protection of private citizens against the
excesses of administration as has been done by the : Conseil d’ etat.
C) ADMINISTRATIVE DIRECTIONS
Delegated legislation can be made only when the authority concerned has statutory
power to do so. Generally directions are issued under general administrative power
of the government, although, sometimes statutory power may also be given to issue
directions.
Kinds of directions:
1. Specific Directions
2. General Directions
Specific directions are one which is applicable to a particular purpose of a
particular case.
General direction lays down general principles, policies, practices or
procedures to be followed in similar cases.
Identification of directions:
In, Sukhdev Singh Vs. Bhagatram’s case the court held that whether a particular
piece of government legislation is delegated legislation or direction may be
determined on the basis of following factors-
1. If it discloses the statutory provision under which it has been made, then
should be regarded as a rule.
2. As to direction it is not essential to disclose the statutory provision under
which it has been made.
3. A piece of government legislation may be regarded as a rule if it is has been
made under a specific statutory provision which authorises to do so.
4. A piece of government legislation may be regarded as a direction if it has
been issued under a specific statutory provision which has authorised to do
so. Thus it is the source of power which is determining factor whether a
government order is a rule or a direction
MARKS :02X10=20
Ans: One of the main principles of Natural justice is the rule of Audi Alteram
Partem (hear the other side). Or the rule of fair hearing . It means no one shall be
condemned unheard i.e. There must be fairness on part of the deciding authority.
According to this principle , reasonable opportunity must be given to a person
before taking action against him.
1. Notice
2. Hearing
Ans: The term bias means anything which tends to or may be regarded as tending
to cause such a person to decide a case otherwise than on evidence must be held to
be biased. This principle is based on the following rules:
2. Justice should not only be done , but manifestly and undoubtedly be seen to
be done; and
The rule against bias may be classified under the following three heads;
Pecuniary bias , Personal bias, Bias as to subject matter.
Similarly in the case of A.K.Kripak vs. Union of India - The Supreme court
quashed the selections made by the Selection Board on the ground that one of the
candidates appeared before selection committee was also a member of the
Selection Board.
c) The cane commissioner who had the power to reserve sugarcane areas
for the respective sugar factories, at the dictation of the Chief Minister
excluded 99 villages from the area reserved by him. Is it valid?
In the above case , if the chief minister is authorized to give orders to the Cane
commissioner , then the order is valid, but if he not authorized by the statute which
delegated the powers to subordinate authority then he is not permitted to act on the
dictation of the chief minister.
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