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Lecture VI 

...[/]/ is beyond doubt that there are certain canons of judicial con- 
duct to which alt tribunals and persons who have to give judicial or quasi- 
judicial decisions ought to conform. The principles on which they rest 
are, we think, implicit in the rule of law. Their observance is demanded 
by our notional sense of justice. 

A monkey does not decide an affair of the forest. 


Doth our law judge any man before it hear him and know what he 


1 . General 

3. Historical background 

4. Principles of natural justice and statutory provision 

5. Principles of natural justice and administrative orders 
GXJPflnciples of natural justice 

(1) Bias or interest ^ 

Principle explained 
Types of bias ^ 

(A) Pecuniary bias 

(B) Personal bias 

(i) Personal friendship 
() Personal hostility 
(MI) Family relationship 
(IP) Professional relationship 
(v) Employer and employee 

(C) Bias as to subject-matter 

[ US] 


(i) Partiality 
() Departmental bias 

(in) Prior utterances and pre-judgmcnt of issues 
(iv) Acting under dictation 

Test : Real likelihood of bias 
(2) Audi alterant par tern 

Principle explained 

(A) Notice 

(B) Hearing 

7. Oral or personal hearing 

8. Right of counsel 

9. Speaking orders 


Natural justice is an important concept in administrative law. 
In the words of Megarry, J. 1 it is 'justice that is simple and ele- 
mentary, as distinct from justice that is complex, sophisticated and 
technical'. The principles of natural justice or fundamental 
rules of procedure for administrative action are neither fixed nor 
prescribed in any code. They are better known than described 
and easier proclaimed than defined. 2 'Natural justice' has meant 
many things to many writers, lawyers and systems of law. It has 
many colours and shades and many forms and shapes. According 
to de Smith, 8 the term 'natural justice' expresses the close relation- 
ship betwgen^the Common Law^n^T^rar^IncT]es and it hasj&n 

impressive ancestry^ ItT~is alscT knowrT as 'substaptial justice', 
' fundament aT^trstice', 'universal justice' or 'fair play in action'. 
It is a great Immunising prihclple intended to invest law with 
fojrness, toseotfejustice and to preyentjmiscarriage of justice. 

In Wiseman v. Borneman*, it is observed : 

. . . [T]he conception of natural justice should at all stages 
guide those who discharge judicial functions is not merely an 
acceptable but is an essential part of the philosophy of the law .... 
(emphasis supplied) 

1. John v. Rees> (1969) 2 All ER 274. 

2. Abbot v. Sulivan, (1952) 1 KB 189 (195). 

3. Judicial Review of Administrative Action, (1973), p. 135. 

4. 1971 AC 297 : (1969) 3 All ER 275. 



It is not possible to define precisely and scientifically the 
expression 'natural justice*. It is a vague and ambiguous_concepjt 
and, having been_criticjsed as 'sadjy^jackmg in precision* 6 , has 
been consigned more than once to the lumber room. 6 It is a 
confused and unwarranted concept and encroaches on the field of 
ethics. 7 'Though eminent judges have at times used the phrase 
'the principles of natural justice*, even now the concept differs 
widely in countries usually described as civilised. 8 

It is true that the concept of natural justice js_not very clear 
and, theTeTorl^ T^s_j^^ yet the principles of 

natural^fustice are accepted and enforced. In reply to the 
aforesaid criticisms against natural justice, Lord Reid in the 
historical decision of Ridge v. Baldwin 9 observed : 

In modern times opinions have sometimes been express- 
ed to the effect that natural justice is so vague as to be practi- 
cally meaningless. But I would regard these as tainted by 
the perennial fallacy that because something cannot be cut 
and dried or nicely weighed or measured therefore it does not 
exist .... 


According to de Smith, 10 the term 'natural justice* expresses 
the close relationship between the Common Law and the moral 
principles and it has an impressive history. It has been recognised 
from the earliest times : it is not judge-made law. In days bygone 
the Greeks had accepted the principle that 'no man should be 
condemned unheard*. The historical and philosophical founda- 
tions of the English concept of natural justice may be insecure, 
nevertheless they are worthy of preservation. Indeed, from the 

5. Hamilton, L. J. in R. v. Local Government Board, Ex Parte Alridge, (1914) 1 
KB 160(195). 

6. de Smith (supra) p. 134. 

7. Local Government Board v. Alridge, (1915) AC 120. 

8. Maugham, J. in Maclean v. The Workers' Union, (1929) 1 Ch D 602. 

9. (1964) AC 40 (64). 

10. Judicial Review of Administrative Action, (supra), p. 134. 


legendary days of Adam and of Kautilya's Arthashashtra > the rule 
of law has had this stamp of natural justice which makes it 
social justice. 11 


Generally, no provision is found in any statute for the obser- 
vance of the principles of natural justice by the adjudicating autho- 
rities. Then, the question then arises as to whether the adjudicat- 
ing authority is bound to follow the principles of natural justice. 
The law is well-settled after the powerful pronouncement of 
Byles, J. in Cooper v. Wandsworth Board of Works 12 , wherein His 
Lordship observed : 

A long course of decisions, beginning with Dr. Bentley's 
case and ending with some very recent cases, establish that, 
although there are no positive words in the statute requiring that the 
party shall be heard, yet the justice of the common law will supply 
the omission of the legislature, (emphasis supplied) 

de Smith 13 also says that where a statute authorising inter- 
ference with property or civil rights was silent on the question of 
notice and hearing, the courts would apply the rule as it is 'of 
universal application and founded on the plainest principles of 
natural justice'. Wade 14 states that the rules of natural justice 
operate as implied mandatory requirements, non-observance of 
which invalidates the exercise of the power. He adds, 'the pre- 
sumption is, it (natural justice) will always apply, however silent 
about it the statute may be'. 15 

The above principle is adopted in India also. In the famous 
case of A. K. Kraipak v. Union of India 16 , speaking for the Supreme 
Court, Hegde, J. propounded : 

11. Per Krishna Iyer, J. in Mohinder Singh Gillv. Chief Ele. Comsr., (1978) 1 
SCO 405 (432) : AIR 1978 SC 851 (870). 

12. (1863) 14CBNS 180 (194). 

13. Judicial Review (supra), p. 139. 

14. Administrative Law, (1977), p. 395. 

15. Ibid, at p. 429. 

16. H (1969) 2 SCO 262 : AIR 1970 SC 150. 


The aim of the rules of natural justice is to secure 
justice or to put it negatively to prevent miscarriage of justice. 
These rales can operate only in areas not covered by any law validly 
made. In other words they do not supplant the law of the land but 
supplement it. 11 (emphasis supplied) 

Very recently, in Maneka Gandhi v. Union of /rf/a l8 , % Beg, 
C. J. observed : 

It is well established that even where there is no 
specific provision in a statute or rules made thereunder for 
showing cause against action proposed to be taken against an 
individual, which affects the rights of that individual, the 
duty to give reasonable opportunity to be heard will be 
implied from the nature of the function to be performed by 
the authority which has the power to take punitive or damag- 
ing action. 


There is no dispute that the principles of natural justice are 
binding on all the courts, judicial bodies and quasi-judicial 
authorities. But the important questions are : Whether these 
principles are applicable to administrative authorities? Whether 
those bodies are also bound to observe them? Whether an 
administrative order passed in violation of these principles is 
ultra vires on that ground? Formerly, courts had taken the view 
that the principles of natural justice were inapplicable to adminis- 
trative, ^giders^ In Franklin v. Minister of Town and Country Planning ', 
Lord Thankerton observed that as the duty imposed on the 
Minister was merely administrative and not judicial or quasi- 
judicial, the only question was, whether the Minister has complied 
with the direction or not. In the words of Ghagla, G. J. 20 'it 
would be erroneous to import into the consideration of an ad- 
ministrative order the principles of natural justice'. In Kishan 
Chand v. Commissioner of Police 21 , speaking for the Supreme Court, 

17. (1969) 2 SCC 262 at. p. 272 : AIR 1970 SO 150, 156. 

18. (1978) 1 SCC 248 (402) : AIR 1978 SC597 (611). 

19. (1947) 2 All ER289. 

20. Bapurao v. State, AIR 1956 Bora. 300 (301) : BLR 418 (422), 

21. AIR 1961 SC 705 (710; : (1961) 3 SCR 135 (147-48). 


Wanchoo, J. (as he then was) observed : 

The compulsion of hearing before passing the order 
implied in the maxim 'audi alteram partem* applies only to 
judicial or quasi-judicial proceedings. 

But^observed by Lord^Denning 22 , at one time it was said 
that the ^in^jgT^ applied" on!^ to^Judidal 

JB^c^eding^^ ^uJ^St 

heresy was scotcEe^ij^gi^g v. Baldwin^ Wade 24 states that 
the principles of natural justice are applicable~to 'almost the 
whole range of administrative powers.'. In Breen v. Amalgamated 
Engineering Union 25 , Lord Denning observed: "It is now well 
settled that a statutory body, which is entrusted by statute with 
a discretion, must act fairly. It does not matter whether its 
functions are described as judicial or quasi-judicial on the one 
hand, or as administrative on the other hand/' Lord Morris 
declares : 

We can, I think, take pride in what has been done in 
recent periods and particularly in the field of administrative 
law by invoking and by applying these principles which we 
broadly classify under the designation of natural justice. 
Many testing problems as to their application yet remain to 
be solved. But I affirm that the area of administrative action is 
but one area in which the principles are to be deployed. 2 * (emphasis 

This principle is accepted in India also. In State of Orissa v. 
Dr. (Miss) Binapani^y speaking for the Supreme Court, Shah, J. 
(as he then was) observed : 

It is true that the order is administrative in character, 
but even an administrative order which involves civil cons- 
equences .... must be made consistently with the rules of 
natural justice. . . . 

./Again, in Kraipak's case (supra), the Court observed : 

Till very recently it was the opinion of the courts that 
unless the authority concerned was required by the law under 

22. R. v. Gaming Board, (1970) 2 All ER 528. 

23. (1964) AC 40. 

24. Administrative Law (1977), p. 429. 

25. (1971) 1 A11ER 1148. 

26. Quoted in Maneka Gandhi's case (supra) at p. 285. 
27." AIR 1967 SC 1269 (1272) : (1967) 2 SCR 625 (630). 


which it functioned to act judicially, there was no room for 
the application of the rules of natural justice. The validity 
of that limitation is now questioned. If the purpose of the 
rules of natural justice is to prevent miscarriage of justice one fails 
to see why those rules should be made inapplicable to administrative 
enquiries. (emphasis supplied) 

In Maneka Gandhis case (supra), Kailasam, J. pronounced : 
The frontier between judicial or ^wan-judicial determina- 
tion on the one hand and an executive on the other has be- 
come blurred. The rigid view that principles of natural justice 
applied only to judicial and quasi-judicial acts and not to 
administrative acts no longer holds the field. 29 


As stated above, 'natural justice' has meant many things to 
many writers, lawyers, jurists and systems of law. It has many co- 
lours, shades, shapes and forms. Rules of natural justicejire not 
embodied rules and tfo^caimoi^^ 

Jacket of a rigid formula. 30 In Rufselv. Duke of Norfolk* 1 , Tucker, 
ETJ. observed : 

There are, in my view, no words which are of universal 
application to every kind of inquiry and every kind of domes- 
tic tribunal. The requirements of natural justice must depend 
on the circumstances of the case, the nature of the inquiry, 
the rules under which the tribunal is acting, the subject- 
matter that is being dealt with, and so forth. 

In the oft-quoted passage from Byrne v. Kinematograph Renters 
Society Lfc/. 32 , Lord Harman enunciates : 

What, then, arc the requirements of natural justice 
in a case of this kind? First, I think that the person accused 
should know the nature of the accusation made ; secondly, 
that he should be given an opportunity to state his case ; and 
thirdly, of course, that the tribunal should act in good faith, 
1 do think that there really is anything more, (emphasis sup- 

28. KraipaVs case (supra) at p. 272 (SCO) ; p. 157 (AIR). 

29. (1978) 1 SCO 248 (385) : AIR 1978 SC 597 (690). 

30. P. K. Roy's case (infra). 

31. (1919) 1 Ail ER 109 (118), 

32. (1958) 2 All ER 579. 


The same view is taken in India. In Union of India v. P. K. 
Roy 3 *, speaking for the Supreme Court, Ramaswami, J. observed : 

[T]he extent and application of the doctrine of natural 
justice cannot be imprisoned within the strait jacket of a rigid 
formula. The application of the doctrine depends upon the 
nature of the jurisdiction conferred on the administrative 
authority, upon the character of the rights of the persons 
affected, the scheme and policy of the statute and other rele- 
vant circumstances disclosed in the particular case. 34 

English Law recognises two principles of natural justice : 

J<ft) Nemo debet esse judex in proptia causa : No man shall be a 
judge in his own cause, or the deciding authority must 
be impartial and without bias ; and 

J<p) Audi alter am par tern : Hear the other side, or both the 
sides must be heard, or no man should be condemned 
unheard, or that there must be fairness on the part of 
the deciding authority. 

(1) Bias of interest 


The first principle of natural justice consists of the rule against 
bias or interest and is based on three maxims : (i) No man shall 
be a judge in his own cause; (it) "Justice should not only be done, 
but manifestly and undoubtedly be seen to be done" ; 35 and (Hi) 
"Judges, like Caeser's wife should be above suspicion". 36 


According to the Dictionary meaning 'bias' means 'anything 
which tends or may be regarded as tending to cause such a person 
to decide a case otherwise than on evidence must be held to be 

33. AIR 1968 SC 850 (858) :(1968) 2 SCR 156 (202). 

34. See also Sun* Koshy v. University of Kerala ; AIR 1969 SC 198 ; ffiranath v. 
Rajendra Medical College (infra). 

35. Lord Hewart in R. v. Sussex Justices, (1924) 1 KB 256. 

36: Justice Bowen in Leeson v. General Council, (1889) 43 Ch D 366 (385). 


In Franklin v. Minister of Town Planning* 1 , Lord Thankerton 
defines bias as under : 

My Lords, I could wish that the use of the word "bias" 
should be confined to its pioper sphere. Its proper significance 
in my opinion, is to denote a departure from the standard of 
even -handed justice which the law requires from those who 
occu py judicial office, or those who are commonly regarded 
as holding a quasi-judicial office, such as an arbitrator. 

Principle explained 

Thejirst requirement of natural justice is that the judge 
sh JuidTbe imLarU^ be free from bias. He 

is supposed to be indifferent_tojhe^_parties to the controversy^ He 
cannot act as judge of a cause in which he himself has some 
interest either pecuniary or otherwise as it affords the strongest 
proof against neutrality. He must be in a position to act judicially 
and to decide the matter objectively^ If the judge is subject to bias 
in favour of or against either party to the dispute or is in a posi' 
tion that a bias can be assumed, he is disqualified to act as a 
judge, and the proceedings will be vitiated. This rule applies to 
judicial as wejl as administrative authorities jequired to act 
judicially or quasi-judicially . 

Types of bias 

Bias is of three J;ypes : 

(A) Pecuniary bias, ^ 

(B) Personal bias^and ^ 

(C) Bias as to subject-matter. v 

(A) Pecuniary bias 

1 1 is well settled that as regards pecuniary interest 'the least 
pecuniary interest in the subject-matte^ of_ the j,itigation will 
disqualify any person from acting as a judge'. 38 Griffith and 
Street 39 rightly state that *a pecuniary interest, however slight, 
j even though it ^not^fove^TKarThe'13ecision is in any way 

affected*, (emphasis supplied) 

37. (1947) 2 All ER 289 (296). 

38. Per Stephen, J. in R. v. Farrant, (1887) QBD 58(60). 

39. Principles of Administrative Law : (4th ed.), p. 156. 


Dr. Bonham's case 40 

In this case, Dr. Bonhara, a doctor of Cambridge University 
was fined by the College of Physicians for practising in the city 
of London without the licence of the College. The statute under 
which the College acted provided that the fines should go half to 
the King and half to the College. The claim was disallowed by 
Coke, C. J. as the College had a financial interest in its own 
judgment and was a judge in its own cause. 

Dimes v. Grant Junction Canal 41 

This is the^la^c^xagogle^f the application oiFjthejrule agai- 
nst pecuniaryjgUerest. In this case, the "sults^ were decreed by 
the Vice Chancellor and the appeals against those decrees were 
filed in the Court of Lord Chancellor Cottenham. The appeals 
were dismissed by him and decrees were confirmed in favour of a 
canal company in which he was a substantial shareholder. The 
House of Lords agreed with the Vice-Chanceilor and affirmed 
the decrees on merits. In fact, Lord Cottenham's decision was 
not in any way affected by his interest as a shareholder ; and yet 
the House of Lords quashed the decision of Lord Cottenham. 
Lord Campbell observed : 

No one can suppose that Lord Cottenham could be, in 
the remotest degree, influenced by the interest that he had in 
this concern ; but my Lords, it is of the last importance that 
the maxim, that no one is to be a judge in his own cause, 
should be held sacred .... And it will have a most salutory 
influence on (inferior) tribunals when it is known that this 
high Court of last resort, in a case in which the Lord Chan- 
cellor of England had an interest, considered that his decree 
was on that account a decree not according to law, and was 
set aside. This will be a lesson to all inferior tribunals to take 
care not only that in their decrees they are not influenced by their per- 
sonal interest , but to avoid the appearance of labouring under such an 
influence. 42 (emphasis supplied) 

40. (1610) 8 Co. Rep. 113 b. 

41. (1852) 3 HLC 579. 

42. Ibid, at p. 793. 


The samejdndple is^accepted in India. In Manak Lai v. Dr. 


speaking for the Supreme Court, Gajendragadkar, J, 
(as he then was) remarked : 

It is obvious that pecuniary interest, however small it may 
be in a subject-matter of the proceedings, would wholly dis' 
qualify a member from acting as a judge. 

In Jeejeebhoy v. Assistant Collector of TAana 44 , Chief Justice 
Gajendragadkar reconstituted the Bench on objection being taken 
on behalf of the interveners in Court on the ground that the Chief 
Justice, who was a member of_thg^Bench was also a member of the 
co-operafive^_society for which the disputed land had been 

In Visakapalanam Co-operative Motor Transport Ltd. v. G. Banga- 
ruraju* 5 , a cooperative society had asked for a permit* The 
Collector was the President of that society and he was also a 
Chairman of the Regional TranspDrt Authority who had granted 
the permit in favour of the society. The court set aside tho 
decision as being against the principles of natural justice. 

(B) Personal bias 

The secondj:yjpj;j}f^ 

of a party or he may 


bejgrsgnally hostile^is^ajMgsjjiltjaf evept? occurrjog either-, bofore 
or during the course of a trial j 18 

(i) Personal friendship 

Personal friendship may be regarded as a disqualification 
provided there is a real likelihood of bias. 


of the Bencjij^^a fn^ 
The wifehfemhe husEand that the Chairman would decide 

43. AIR 1957 SC 425 (429) : (1957) SCR 575 (581). 

44. AIR 1965 SC 1096 : (1965) 1 SCR 636. 

45. AIR 1953 Mad 709. Sec also Annarr^lai v. State, AIR 1957 AP 739. 

46. Griffith and Street (supra), p. 156 de Smith (supra) at p. 232. 

47. (1939)2 All ER 535. 


the case in her favour. The Divisional Court ordered rehearing. 
A. K. Kraipakjt. Unjon ojf^Indi^^ 

In this historical case, one JV was a candidate for selection 
to the Indian Forest Service and was also a member of the 
Selection Board. JVdid not sit on the Board when his own name 
was considered. N was recommended by the Board and was 
selected by the PSG. The candidates, who were not selected 
filed a writ petition for quashing the selection of N on the ground 
that the principles of natural justice were violated. The Supreme 
Court upheld the contention and set aside the selection of JV". 

(ii) Personal hostility 

Strong personaHic^ilityj pacty ..disqualifies _ a "Judge 

from adjudicating a dispute, if it gives rise to a real likelihood of 

R. v. Handle}** 9 

A magistrate was held to be disqualified from hearing a case 
filed against an accused, who had beate^Hup the magistrate 

Meenglass Tea Estate v. Workmen 

Ajtnanager himself conducted aj^jnjjiuiry againsja, workman 
for the allegation" tha?he had beaten up the manager. Held, that 
lie inquiry was vitiated. 

finer al Development Ltd. v. State of Bihar 61 

There existed political rivalry between M and the Revenue 
Minister, who had cancelled the licence of Af. A criminal case 
was also filed by the Minister against Af. It was held that there 
was personal bias against Af and thi MaUc3r vsris disqualified 
from taking any action against Af. 


Like persormLfrkndship, family relationship has 

48. (1969) 2 SCO 262 : AIR 1970 SC 150. 

49. (1921) 61 DLR 585. 

50. AIR 1963 SC 1719. 

51. AIR 1960 SC 468. See also Dr. G. Sarana v. University of Lucknow, 
(1976) 3 SCC 585 : AIR 1976 SC 2428. 


considered as a ground to disqualify a judge_ jn the province pj 

Ladies of the Sacred Heart of Jesus v. Armstrong** 

In this case, the Chairman was the husband of an executive 
officer of a body which was a party before the tribunal. The 
decision was set aside on that ground. 

D. J^Khannji^Mmm^ 

Injhis case ? jLhe^lej^qjClLa-andidate waj_^iashed as _Jt he 
candidate's son-in-law wajjQ>rie_of thg_ in^mbejrs__^f the_ JJelsciion 

lO^iy " 

(iv) Professional relationship 

Professional) business or other vocationaLrjelatmnship ^between 
a judge andTHe~par ties before him mayjtefear-him, 


A garage proprietor applied to the Council to exempt hirr 
from a by-law requiring to close his garage early. The applica- 
tion was rejected by the Council. Three councillors were 
competitors in the business. The decision of the Council was 

(v) Employer and employee 

If a judge is an employer or employee of one of the parties 
to the dispute, the possibility or likelihood of bias cannot be 
ruled out and he cannot adjudicate upon the matter. 

R. v. Hoseason^ 

A magistrate cannot convict his own employee for breach 
of contract on a complaint filed by his bailiff. 

(G) Bias as to subject-matter 


The ,_third type is bias as Jto__the subj art-mat tftr. Thai 
may arise *wheri the judge has a^ general interest in the subject- 

52. (1961) 29 DLR 373. 

53. AIR 1973 HP 30. 

54. (1958) 11 DLR 364. 

55. (1811) 14 East 605. 


matter. According to Griffith and Street 56 'only rarely wUl__jbis 

bias invalidate proceedings'. A inerg^ general interest in^the 

general object to be pursued wouHjnot disqualify, a judge from 
deciding the niajterTlIThelre musj be_ some direct connection 
with the litigation. Wade 57 remarks that ministerial or depart- 
mental policy cannot be regarded as a disqualifying bias. Suppose 
a Minister is empowered to frame a scheme after hearing the 
objections. The procedure for hearing the objections is subject 
to the principles of natural justice insofar as they require a 
fair hearing. But the Minister's decision cannot be impugned on 
the ground that he has advocated the scheme or he is known 
to support it as a matter of policy. In fact, the object of giving 
power to the Minister is to implement the policy of the govern- 
ment. In Ridge v. Baldwin* 3 , referring to the schemes, Lord 
Reid rightly observe3ntEit"~TKe Minister "cannot b? prevented 
from attaching more importance to the fulfilment of his policy 
than to the fate of individual objectors and it would be quite 
wrong for the courts to say that the Minister could or should 
act in the same kind of way as a board of works deciding whether 
a house should be pulled down". 

Jain and Jain 59 have classified this bias into four categories : 

(!) Partiality 

A Judge majMaedisqualified if there is direct connection 
between the ^djudicatmg authority and the issue^n "cori^wersy^. 

State of U. P. v. Mohammad JVboA 60 

A departmental inquiry was held against A by B. As one 
of the witnesses against A turned hostile B left the inquiry, gave 
evidence against A y resumed to complete enquiry and passed 
the order of dismissal. The Supreme Court held that 'the rules 
of natural justice were completely discarded and all canons of 
fair play were grievously violated by B\ 

56. Administrative Law, (supra), p. 156. 

57. Administrative Law, (1977) pp. 415-18. 

58. (1963) 2 All ER 66 (76) : (1964) AC 40 (72). 

59. Principles of Administrative Law, (1973), p. 178. 

60 AIR 1953 SC 85. See ahj Andhra Scientific Co. v. Sheshagiri Rao, AIR 1967 
SC408: (1961) 1 LLJ 117. 


R. v. Dedjjustices* 1 

rv magistrate wasjt subscriber ^ tojhe Royal Society _Jbr i the,, 

Pr e ve nHo^ Ag hf> badJKLJiantr^I Jpver 

any~~p ros 9utionJbyjhL~society, he^^as^joat_jdisj^alifiecL Jfrom 
trying a charge of cr^Uyjtp^^Jiorse brought by the society. 

(iff Departmental bias 

As discussed above, mere 'official' or 'policy' bias may not 
necessarily be held to disqualify an official from acting as an 
adjudicator unless there is total non-application of mind or has 
pre-judged the issue or has taken improper attitude to uphold the 
policy of the department, so as to constitute a legal bias. 

Gultapalli Nageshwara Rao v. A. P. S. R. T. Corp. 

(Gullapalli I) The petitioners were carrying on motor transport 
business The Andhra State Transport Undertaking published a 
scheme for nationalisation of motor transport in the State and 
invited objections. The objections filed by the petitioners were 
received and heard by the Secretary and thereafter the scheme 
was approved by the Chief Minister. The Supreme Court upheld 
the contention of the petitioners that the official who heard the 
objections was 'in substance' one of the parties to the dispute 
and hence the principles of natural justice were violated. 

But in Gullapalli // 63 , the Supreme Court qualified the 
application of the doctrine of official bias. Here the hearing was 
given by the Minister and not by the Secretary. The Court 
held that the proceedings were not vitiated as 'the Secretary was 
a part of the department but the Minister was only primarily 
responsible for the disposal of the business pertaining to that 

(iii) Prior utterances and pre-judgment of issues 

Sometimes, the Minister or the official concerned announces 
beforehand the general policy he intends to follow. In this regard, 
the correct legal p3sition is that if the prior policy statement is 

61. (1861) 45LT439. 

62. AIR 1959 SO 308 : (1939) Supp (1) SCR 319. 

63. Gullapalli Nageshwara Rao v. APSRT Corpn., AIR 1959 SC 1376. 


a 'final and irrevocable* decision, the same would operate as a 
disqualification, otherwise not. 

K. S. Rao v. State of Hyderabad 

In this case, the inquiry officer was held to be disqualified 
to conduct enquiry against the delinquent for his removal from 
service on the ground that before the commencement of enquiry 
he had expressed a strong view that the delinquent should be 
dismissed from service. 

Kondala Rao v. A. P. Transport Corporation** 

A scheme of nationalisation of bus services was prepared by 
the Transport Corporation. The objections were invited and they 
were heard by the Minister of Transport, who had presided over 
a meeting of an official committee a few days earlier in which 
nationalisation was favoured. It was contended that the Minister 
had prejudiced the issue and therefore, he was disqualified to 
decide the objections filed against the proposed scheme. The 
court rejected the contention on the ground that the decision of 
the committee was not 'final and irrevocable", but merely a 
policy decision and therefore, there was no bias. 

(iv) Acting under dictation 

If any official, judge or minister is empowered to decide any 
matter, Ke must exercise his owrr"judgmenl~decide it himsell 
independent ly^ _a fldjie cajmoTI^avelt to alnryT other authority, and 
if he decides the matter under^dictation from a superior autho- 
rity, the decision is not valid. " 

Mahadayal v. C. T. O, 68 

According to the Commercial Tax Officer, the petitioner 
was not liable to pay tax f and yet JhgjrefJOTed" the matter tcThis 

SJUperior^pffirer and nn inctnirfirmj frnni^Jhrni imposed tax. The 

Supreme Court set aiida the decision. "~~ 

Test : Real likelihood of bias 

As discussed above, a pecuniary interest, however small it 

64. AIR 1957 AP 614. 

65. AIR 1961 SC 82 : (1961) 1 SCR 642. 

66. A R 1958 SC 667 : See also Lecture VIII (infra). 


may be, disqualifies a person from acting as a judge. 67 But that 
is not the position in case of personal bias or bias as to subject 
matter. Here the test is whether there is a real likelihood of bias 
in the judge. 68 

de Smith 69 says, a ' real likelihood ' of bias means at least 
substantial possibility o4>iayr V^mgKa~m Williams, LTJT^^^Tightly 
says that the court will have to judge the matter 'as a reasonable 
man would jujdj*e_ of jmy^ jn^ 

business'. In the words of Lord Hewart^^jG J^Jljhe^answer to 
the "question" whether ^j^ere_wjas^a-real--liklihood of biafr-~^bpends 
not upon what actually was done but upon what might appear 
to be done. Nothing is to be done which creates even a suspicion thai 
there has been an improper interference with the course of justice 9 . 
(emphasis supplied) As Lord Denning 72 says ''the reason is plain 
enough. Justice must be rooted in confidence : and confidence 
is destroyed when right minded people go away thinking : 'the judge wai 
biased 3 ', (emphasis supplied) 

Thesame principle is adopted in India. \n_Mawk Lai v. 

Dr. Prem Chand, a complaint was filed by A against B, an 
advocate" Tor an~aTIeged act of misconduct. A disciplinary com- 
mittee was appointed to make_jmj^ 

ma3e against B. The Chairman had earlier represented A in a 

case. The Supreme Court held that the enquiry was vitiated 
even if it were assumed that the Chairman had no personal contact 
with his client and did not remember that he had appeared on his 
behalf at any time in the past. The Court laid down the test 
in the following words : 

In such cases the test is not whether in fact a bias has 
affected the judgment; the test always is and must be whether 
a litigant could reasonably apprehend that a bias attributable 
to a member of the tribunal might have operated against him 
in the final decision of the tribunal. 74 

67. Griffith and Street (supra), p. 156. 

68. R. v. Camborne Justices, (1955) 1 Q,B 41. 

69. Judicial Review of Administrative Action, (1973), p. 230, 

70. R. v. Sunderland, (1901) 2 K B 357 (373), 

71. R. v. Sussex Justices, (1924) 1 K B 256 (259). 

72. Metropolitan Properties Ltd. v. Lannon (1969) 1 Q.B 577. 

73. AIR 1957 SC 425. 

74. Ibid, at p. 429. 


The same principle is followed by the court in a number of 
decisions. 76 

But at the same time, it should not be forgotten that the test 
of a real likelihood of bias must be based on the reasonable 
apprehensions of a reasonable man fully apprised of the facts. 
It is no doubt desirable that all judges, like Caesar's wife must be 
above suspicion, but it would be hopeless for the courts to insist 
that only 'people who cannot be suspected of improper motives' 
were qualified at common law to discharge judicial functions, or 
to quash decisions on the strength of the suspicions of fools or 
other capricious and unreasonable people. 78 The following obser- 
vations of Frank, J. in Re Linahari 11 are worth quoting : 

If, however, 'bias' and 'partiality' be defined to mean 
the total absence of preconceptions in the mind of the judge, 
then no one has ever had a fair trial, and no one ever will. 
The human mind, even at infancy, is no blank piece of paper. 
We are born with predispositions and the processes of educa- 
tion, formal and informal, create attitudes which precede 
reasoning in particular instances and which, therefore, by 
definition are prejudices. 

As Slade, J. 78 states, it is necessary to remember Lord 
Hewart's principle that it is of fundamental importance that 
justice should not only be done, but should manifestly and 

75. GullapaM /, AIR 1959 SO 308 : 1959 Supp i SCR 319. 
Gullapallill, AIR 1959 SO 1376: (1960) 1 SCR 580. 
Kraipak's case, (supra). 

Dr. (7. Sarana's case, (supra). 

76. de Smith (supra) p. 230. 

77. (1943) 138 F 2nd 650 (652). 

See also the following observations : 

"I have never known any judges, no difference how austere of 
manner, who discharged their judicial duties in an atmosphere of pure, 
unadulterated reason. Alas ! we are 'all the common growth of Mother 
Earth* even those of us who wear the long robe.'* 


"Judges have preferences for social policies as you and I. They 
form their judgments after the varying fashions in which you and I form 
ours. They have hands, organs, dimensions, senses, affections, passions. 
They are warmed by the same winter and summer and by the same ideas 
as a layman is." 

78t, R. v, Camborne Justices (supra) at p. 52. 


undoubtedly be seen to be done without giving currency to 'the erro- 
neous impression that it is more important that justice should appear to 
be done than that it should in fact be done', (emphasis supplied) 

(2) Audi alterant part em 

Principle explained 

The second fundamen tal principle of natural justice is audi 
alter am par tern, i.e. no man should be condemned unhea0i > _iiiiJbQlIx 
the sides must be_heard before passing any order, dejimith 79 
says^Noproposition can be mnri^rWrly flafahliihnd thrm thnf n 
man cannot incur the loss of Ubert^O_property for an offence by 
arjudi'cial proceeding until he has had a fair opportunity of answer- 
ing the case against him'. *A party is not to suffer in person or 
in purse without an opportunity of being heard/ 80 This is the 
first principle of civilised jurisprudence and is accepted by laws of 
Men and God. In short, before an order is passed against any 
per son, reasonable opportunity of being heard must be given to 
him. Generally, this maxim includes two elements : (A) Notice ; 
and (B) Hearing. 

(A) Notice 

Before any action is taken, the affected party must bejgiven a 
no lice to j^j^5LJ^u&a-_agaii^^ 

explanation. 1 1 , is a sine quo non of the ngh^of^fair hearing;. Any 

order passed without giying_japtice is against the principles of 
naturaljiisticg ^ a_nc[ jg yoid ahJjiitio* 1 

Bagg's case* 2 

In this case, James Bagg, a Chief Burgess of Plymouth had 
been disfranchised for unbecoming conduct inasmuch as it was alleg- 
ed that he had told the Mayor, * You are cozening knave. I will make 
thy neck crack 3 and by 'turning the hinder part of his body in an 
inhuman and uncivil mariner* towards the Mayor, said, 'Come and 
kiss*. He was reinstated by mandamus as no notice or hearing 
was given to him before passing the impugned order. 

79. Judicial Review (supra), p. 136. 

80. Painter v. Liverpool Oil Gas Light Co., (1836) 3 A & E 433 (448-49). 

81. Municipal Board v. State Transport Authority, AIR 1966 SC 459; Prem Bus 
Service v. R.T.A., AIR 1968 Punj. 344. 

82. (1615) 11 Co. Rep. 93 b. 


Dr.lBentley's case 63 

Dr. Bentley was deprived of his degrees by the Cambridge 
University on account of his alleged misconduct without giving 
any notice or opportunity of hearing. The Court of King's Bench 
declared the decision as null and void. According to Fortescue, J. 
the first hearing in human history was given in the Garden of 

Eden. His Lordship observed : 

[E]ven God himself did not pass sentence upon Adam, 
before he was called upon to make his defence. "Adanr", 
says God, "Where art thou? Hast thou not eaten of the tree, 
x whereof I commanded thee that thou shouldst not eat?" 

Even if there is no provision in the statute about giving of 
notice, if the order in question adversely affects the rights of an 
individual, the notice must be given. 84 The notice must be clear, 
specific and unambiguous and the charges should not be vague and 
uncertain. 85 The object of notice is to give an opportunity to the 
individual concerned to present his case and therefore, if the party 
is aware of the charges or allegations, a formal defect would not 
invalidate the notice, unless the prejudice is caused to the indivi- 
dual. 88 Whether a prejudice is caused or not is a question of 
fact and it depends upon the facts and circumstances of the case. 
Moreover, the notice must give a reasonable opportunity to com- 
ply with the requirements mentioned therein. Thus, to give 24 hours 
time to dismantle structure alleged to be in a dilapidated con- 
dition is not proper and the notice is not valid. 87 If the inquiry is 
under Article 311 of the Constitution of India, two notices (first for 
charges or allegations and second for proposed punishment) should 
be given. 88 Where a notice regarding one charge has been given, 

83. R. v. University of Cambridge, (1723) 1 Str. 757. 

84. Copper's caie (infra) ; East Indian Commercial Co. v. Collector of Customs, AIR 
1962 SC 1893 : (1962) 3 SCR 338. 

85. tf. R. Co-operative Society v. Industrial Tribunal, AIR 1967 SC 1182; B. D. 
Gupta v. State of Havana, (1973) 3 SCC 149: AIR 1972 SC 2472. 

86. Bhagwan Datta v. Ram Ratanji, AIR 1960 SC 200; Fatal Bhai v. Custodian 
General, AIR 1961 SC 1397. 

87. State of J. K. v. Haji Vali Mohammed, (1972) 2 SCC 402: AIR 1972 SC 

88. It may be noted here that by the Constitution (42nd Amendment) Act, 
1976, the provision regarding second notice has been deleted. 


the person cannot be punished for a different charge for which no 
notice or opportunity of being heard was given to him. 89 

(B) Hearing 

maxim is that 

the person^concerned must be given an opportunity oT beTng heard 
beTorejmy adverse action js taken Against him. 

The defendant board had 


without giving any opportunity^QfJieaiing _if Jt \#ajL.reclEd~ 
out prior permission. The board demolished the house of the plain- 
tiFFunder this pnwsion. The action of the board was not in 
violation of the statutory provision. The court held that the 
Board's power was subject to the qualification that no man can 
be deprived of his property without having an opportunity of being 

Ridge v, Baldwin* 1 " 

In this historic case, the glainti.ff^ a. cMef constable, haji 
been prosecuted buTacquTtted on certain charges of conspiracy,, 
e jof the j udgment certain observations .w^re^made J?y 

the presiding j adge against the plaintiff's character as a_ sempr 
police officer! Taking into account these obsej: vat ions 4 the 

iiff froin_s.eryice . 

f Appea^held thaj^jJiJS-JAUtch^ Committee _ 
acting^ j^_^3_j*cl ministrative authority ^.nd was jipt exercising 
judicial or quasi- judicial power, and thLerefore^jlig, _,pjriaciples _of 
ajituraj^ j ustice did not apply to their proceedings for dismissal, 
Reversing the decision of the (T5ulT~~oF~ TtppeaT^ House" "of Lor 3s 
by majority of four to one held that the power of dismissal could 
not be exercised without giving a reasonable opportunity of being 
heard and without observing the principles of natural justice, The 
order of dismissal was, therefore, held to be illegal. 

89. Annamuthadov. Oilfields Workers, (1961)3 All ER 621; Govindsinh v. G. 
Subbarao, (1970) 11 GLR 897 (918-19). 

90. (1863) 14 C B (N S) 180. 

91. (1964) AC 40: (1963) 2 All ER 66. 


State ofOrissa v. Dr. (Miss) BinapaniDei? 2 

The petitioner was compulsorily retired from_jgrvice on the 
ground^ that she had compIeTej^tjie^age of 55 years.^ No 

givenjojier before L the L impugned order was 
he SupremejCQijil j^pt asidp th^ -o*de-as~-it- ^w^&^vl^la' 

Maneka Gandhi v. Union oflndiaP* 

In a recent case, the passport of the petitioner-journalist was 
impounded by the Government of India 'in public interest'. No 
opportunity was given to the petitioner before taking the impugned 
action. The Supreme Court held that the order was violative of 
the principles of natural justice. 

The following propositions can be said to have _be_eiL_e&tab- 
Iished5 - - _ - - - - 

(1) The abdicating authority must be impartial and with- 
ouTany interesrtTc^^ 

(2) Where the adjudicating authority is exercising judicial 
or ^Matt-judicial power, the order must be made by that 
authority and that power cannot be delegated or sub- 
delegated to any other officer. 95 

(3) The adjudicating authority must give full opportunity to 
the affected person to produce all the relevant evidence 
in support of his case. In Malikram v. State ofRajasthan, 
the scope of hearing was confined by the enquiry officer 
only to the hearing of arguments and rejected the appli- 
cation of the appellant to lead oral or documentary 
evidence. The Supreme Court set aside the decision. 

(4) The adjudicating authority must disclose all material 
placed before it in the course of the proceedings and 
cannot utilise any material unless the opportunity is given 
to the party against whom it is sought to be utilised. 

92. AIR 1967 SO 1269 : (1967) 2 SCR 625. 

93. (1978) 1 SCC 248 : AIR 1978 SC 597. 

94. Supra pp. 122-133. 

95. Set Lecture V (supra). 

96. AIR 1961 SC 1575: (1962) 1 SCR 978. 


Thus, in Dhakeshwari Cotton Mills v. C. L T. 97 , the 
Supreme Court set aside the order passed by the Income 
Tax Appellate Tribunal on the ground that it did not 
disclose some evidence to the assessee produced by the 

(5) The adjudicating authority must give an opportunity to 
the party concerned to rebut the evidence and material 
placed by the other side. In Bishambhar Nath v. State oj 
U. P. 98 , in revision proceedings, the Custodian General 
accepted new evidence produced by one party, but no 
opportunity was given to the other side to meet with the 
same. The Supreme Court held that the principles of 
natural justice were violated. 

(6) As stated above, the adjudicating authority must disclose 
the evidence which it wants to utilise against the person 
concerned and also give him an opportunity to rebut the 
same ; but it does not necessarily mean that the right of 
cross-examination of witnesses should be given to him. It 
depends upon the facts and_ Circumstances of each case 
and the jtatutory pr o visions . 99 

Generally, in disciplinary proceedings under Article 311 of 
the Constitution of India against the civil servants 1 and in cases of 
domestic inquiries by employer* against their employees under 
the factory laws, 2 it is held that the right of cross-examination 
of witnesses is necessary. 

In State of Kerala v. K. T, ShaduW, the returns filed t>y the 
respondent-assessee on the basis of his books of account appeared to 
the Sales Tax Officer to be incomplete and incorrect, since certain 
sales appearing in the books of accounts of a wholesale dealer were 
not mentioned in the account books of the respondent. The 

97. AIR 1955 SC 65. See also Shivabasappa? s case (infra). 

98. AIR 1966 SC 573; But see Fedco v. Bilgrami, AIR 1960 SC 415. 

99. See also de Smith (supra), p. 188. 

1. Khemchand v. Union of India, AIR 1958 SC 300; Union of India v. T. R. 
Verma, AIR J957 SC 882. 

2. Central Bank of India v. Karunamoy, AIR 1968 SC 266 ; Meenglass Tea 
Estate (supra). 

3. (1977) 2 SCC 777 : AIR 1977 SC 1627. 


respondent applied to the S. T. O. for opportunity to cross- 
examine the wholesale dealer which was rejected by him. 
Holding the decision of the S. T. O. to be illegal, the Supreme 
Court held that the respondent could prove the correctness and 
completeness of his returns only by showing that the entries in 
the books of accounts of the wholesale dealer were false and 
bogus and this obviously respondent could not do unless he was 
given an opportunity to cross-examine the wholesale dealer. 

On the other hand in externment proceedings, 4 and in 
proceedings before the customs authorities to determine whether 
the goods were smuggled or not, 5 the right of cross-examination 
is not necessary. 

In Hir^ih^MM^l^^ Princifal^Rajendra Medical College^ihe 

students, entered quite~nake 
of the girls' hostel late at night. Thirty-six girl students filed acqnfi- 

anEnquiry Committee. The Committee recorded the^tatements 
bT^irlstudents bul noTT^m presence of the appellants. The 
photographs of the appellants were mixed up with 20 photo- 
graphs of other students ^n3~"Ifie "gTrls "* by and large' identified 


Committee and they were explained about the charges against 

themi 3Hl^ iy^^%H^^enied the charges and stated they had 
n^vjuMef^^ appejlants 

guilty and finally they were expelled from the college. 

The said oi^r^jv^^liajlengec^ by the appellants as violative 
of the principles of natural justice inasmuch as the sJajtementjLaf 
students wer^re^ 

opportunity was given to them to cross-examine thosejgirl L studenis. 
iTieTSupreme Court rjjj^te^t]^^^ 

Court 'the girls would not have ventured to make their jrtatements 
in tK^'eseric^x)JLmI^eant&J^caj^e if they did, they would have 
most certainly exposed themselves to retaliation and harassment 
thereafter. The college authorities are in no position to protect 
the girl students outside the college precincts 3 . 

4. Gurbachanv. State of Bombay, AIR 1952 SC 221. 

5. Kanungo & Co. v. Collector of Customs: (1973) 2 SCO 438 : AIR 1972 SC 2136. 

6. ^(1973) 1 SCC 805 : AIR 1973 SC 1260. 


(7) Oral or personal hearing is not a part of natural 
justice and cannot be claimed as of right. 7 

(8) Representation through counsel or an advocate also 
cannot be claimed as a part of natural justice. 8 

(9) The adjudicating authority is not always bound to give 
reasons in support of its order, but the recent trend is 
that it is considered to be a part of natural justice. 9 

(10) If hearing is not given by the adjudicating autho- 
rity to the person concerned and the principles of 
natural justice are violated the order is void and it 
cannot be justified on the ground that hearing 'would 
make no difference 9 10 or 'no useful purpose would have been 
served, 11 In General Medical Council v. Spackman 1 *, Lord 
Wright observed: "If the principles of natural justice 
are violated in respect of any decision, it is, indeed, 
immaterial whether the same decision would have been 
arrived at in the absence of the departure from the 
essential principles of natural justice. Tin decision must 
be declared to be no decision/' ((emphasis supplied) 

Thus, in Board of High School v. KumariChitra 13 , the Board 
cancelled the examination of the petitioner who had actually 
appeared at the examination on the ground that there was short- 
age in attendance at lectures. But no notice was given to her 
before taking the action. The said order was challenged as 
violative of the principles of natural justice. On behalf of the 
Board it was contended that the facts were not in dispute and 
therefore, 'no useful purpose would have been served' by giving a show 
cause notice to the petitioner. The Supreme Court set aside 
the decision of the Board, holding that the Board was acting in 
a ^watt-judicial capacity and therefore, it must observe the 
principles of natural justice. 

7. See 'Oral hearing* (infra). 

8. See 'Right of Counsel* (infra). 

9. See 'Speaking orders' (infra). 

10. Wade : Administrative Law, (1977), pp. 461-62. 

1 1 . Kumari Chitra's case (infra) . 

12. (1943) AC 62 7 (644-45). 

13. (1970) 1 SCC 121 : AIR 1970 SC 1039. 


(11) A hearing given on appeal is not an acceptable sub- 
stitute for a hearing not given before the initial decision 14 . 


As discussed above, an adjudicating authority must observe 
the principles of natural justice and must give a reasonable oppor- 
tunity of being heard to the person against whom the action 
is sought to be taken. But in England 15 and in America 18 it is well 
settled law that in absence of statutory provision, an adminis- 
trative authority is not bound to give the person concerned an 
oral hearing. In India also, the same principle is accepted and 
oral hearing is not regarded as a sine qua non of natural justice. 
A person is not entitled to an oral hearing 17 , unless such a right 
is conferred by the statute. 18 In M. P. Industries v. Union of 
India 19 , Subba Rao, J. (as he then was) observed : 

It is no doubt a principle of natural justice that a 
quasi-judicial tribunal cannot make any decision adverse to 
a party without giving him an effective opportunity of meet- 
ing any relevant allegations against him (but) [ t]he said 
opportunity need not necessarily be by personal hearing. It can be by 
written representation. Whether the said opportunity should be by 
written representation or by personal hearing depends upon the facts 
of each case and ordinarily it is in the discretion of the tribunal. 20 
(emphasis supplied) 

Thus, it is well established that principles of natural justice do 
not require personal hearing and if all the relevant circumstances 
have been taken into account before taking the impugned action, 
the said action cannot be set aside only on the ground that 
personal hearing was not given. 21 

14. Wade (supra) p, 465. 

15. Local Govt. Board v. Alridge, (1915) AC 120 :&* also Wade (supra) 
pp. 461-62 : de Smith (supra), pp. 177-78; 186-89. 

16. F. C. C. v. W. J. /?., (1949) 337 U S 265. 

17. A. K. Gopalan v. State of Madras, AIR 1950 SC 27 (43) ; F. M. Roy v. 
Collector of Customs, AIR 1957 SC 648; Union of India v. J. P. Mitter, 
(1971) 1 SCC 396: AIR 1971 SC 1093; State of A ssam v. Gauhati Munici- 
pality AIR 1967 SC 1398. 

18. Farid Ahmed v. Ahmedabad Municipality, (1976) 3 SCC 719: AIR 1976 SC 

19. AIR 1966 SC 671. 

20. Ibid, at p. 675. 

2K State of Maharashtra v. Lok Sikshan Sansthan> (1971)2 SCC 410 (425) ; Union 
of India v. Prabhavalkar, (1973) 4 SCC 183 (193). 


As already discussed, the principles of natural justice are 
flexible and whether they were observed in a given case or not 
depends upon the facts and circumstances of each case. The 
test is that the adjudicating authority must be impartial, 'fair 
hearing* must be given to the person concerned, and that he 
should not be 'hit below the belt 1 . 22 

But at the same time, it must be remembered that a 'hearing* 
will normally be an oral hearing. 28 As a general rule, 'an 
opportunity to present contentions orally, with whatever advant- 
ages the method of presentation has, is one of the rudiments of 
the fair play required when the property is being taken or 
destroyed. 24 de Smith 25 also says that 'in the absence of clear 
statutory guidance on the matter, one who is entitled to the pro- 
tection of the audi alteram partem rule is now prima facie entitled 
to put his case orally'. Again, if there are contending, parties 
before the adjudicating authority and one of them is permitted 
to give oral hearing the same facility must be afforded to the 
other 28 , or where complex legal and technical questions are 
involved it is necessary to give oral hearing. 27 Thus, in absence 
of statutory requirement about oral hearing courts will have to 
decide the matter taking into consideration the facts and circumst- 
ances of the case. 


The right of representation by a lawyer is not considered to 
be a part oJhojutuTal^JsTIce^jrid it cannot be claimeH^tToT Height , 28 
unless the said right is conlerFecny^the statute.^ In Pett v. 

22. Per Krishna Iyer, J. Shr>krishnadas v . State of M. P., (1977)2 SCC 741 
(745) : AIR 1977 SO 1691 (1694). 

23. Wade: Administrative Law, (1977) 461. 

24. Standard Airlines v. Civil Aeronautics Board, (1949) F. 2nd 18 (21). 

25. Judicial Review of Administrative Action, p. 177. 

26. R. v. Kingston-upon-Hull Rent Tribunal, (1949) 65 T L R 209. 

27. Travancore Rayons v. Union of India, (1969) 3 SCC 868 (871) : AIR 197 ISC 
862 (864). 

28. fCalindiv. Tata Locomotive, AIR 1960 SC 914; Mohinder Singh Gill's case. 
(1978) 1 SCC 405 (439). 

29. H. C. Sarin v. Union of India, (1976) 4SCC 765 : AIR 1976 SC 1686. 


Greyhound Racing Association (//) 80 , Lyell, J. observed : 

I find it difficult to say that legal representation before 
a tribunal is an elementary feature of the fair dispensation of 
justice. It seems to me that it arises only in a society which 
has reached some degree of sophistication in its affairs, (emphasis 

But speaking generally, the right to appear through a counsel 
has been recognised in administrative law. G. K. Allen 31 rightly 
says, . . . . [Experience has taught me that to deny persons who 
are unable to express themselves the services of a competent 
spokesman is a very mistaken kindness." In Pett v. Greyhound 
Racing Association (/) 82 , Lord Denning observed : 

f W]hen a Man's reputation or livelihood is at 

stake, he not only has a right to speak by his own mouth. 
He has also a right to speak by counsel or solicitor. . . .Even a 
prisoner can have his friend, (emphasis supplied) 
de Smith 83 is also ot opinion that in general, 'legal representa- 
tion of the right quality before statutory tribunals is desirable, 
and that a person threatened with social or financial ruin by disciplinary 
proceedings in a purely domestic forum may be gravely prejudiced if he 
is denied legal representation 3 , (emphasis supplied) 

Some statutes do noj^eji^jippearance^f legal practitioners ; 
e.g. f ac to r y laws ; some s t atutei_pfinni_t ajjrjgarance of advocates 
29lY-W*lhj^ concerned, e. .__ Indus- 

trial Disputes Act, 1947^ while in som^tatut^J^^ight tc^be 
represented through an advocate is recognised, e. g. Income 
Tax Act, 196 ll! - 

If the matter is very simple, e.g. whether the amount in 
question is paid or not, 34 or whether the assessment orders were 
correct 35 , the request for legal representation can be rejected. 
On the other hand, if the oral evidence produced at the enquiry 
requires services of a lawyer for cross-examination of witnesses, 35 
or legal complexity is involved therein 35 or where complicated 

30. (1969) 2 All ER 221 : (1970) 1 QB 46. 

31. Administrative Jurisdiction, (1956), p. 79. 

32. (1968) 2 All ER 545 : (1969) 1 QB 125. 

33. Judicial Review of Administrative Action, p. 188. 

34. //. C. Sarin's case (supra) . 

35. Krishna Chandra v. Union of India, (1974) 4 SCO 374: AIR 1974 SC 1589. 


questions of fact and law arise, where the evidence is voluminous 
and the party concerned may not be in a position to meet with 
the situation effectively or where he is pitted against a trained 
prosecutor, 36 he should be allowed to engage a legal practitioner 
to defend him 'lest the scales should be weighed against him'. 86 
These are all relevant grounds and in these circumstances, refusal 
to permit legal assistance may cause serious prejudice to the 
person concerned and may amount to a denial of reasonable 
opportunity of being heard, 


A speaking order means an order speaking for itself and 
giving reasons, de Smith 37 says there is no general rule of 
English law that reasons must be given for administrative or 
even judicial decisions. In India also, till very recently it was 
not accepted that the requirement to pass speaking orders is one of 
the principles of natural justice. But as Lord Denning 38 says, 
'the giving of reasons is one of the fundamentals of good adminis- 
tration'. The condition to record reasons introduces clarity and 
excludes arbitrariness and satisfies the party concerned against 
whom the order is passed. Today, the old 'police state^ has 
become 'welfare state'. The governmental functions have increas- 
ed, administrative tribunals and other executive authorities have 
come to stay and they are armed with wide discretionary powers 
and there are all possibilities of abuse of power by them. To 
provide a safeguard against the arbitrary exercise of powers by 
these authorities, the condition of recording reasons is imposed on 
them. It is true that even the ordinary law courts do not always 
give reasons in support of the orders passed by them when they 
dismiss appeals and revisions summarily. But regular courts of 
law and administrative tribunals cannot be put at par with. 1 
must quote here the following powerful observations of Subba 
Rao, J. (as he then was) in Af. P. Industries v. Union oflndia 39 : 

There is an essential distinction between a Court and 
an administrative tribunal. A Judge is trained to look at 

36. C. L. Subramaniam v. Collector of Customs^ (1972) 3 SCO 542: AIR 1972 
SC 2178. 

37. Judicial Review of Administrative Action, p. 128. 

38. Breen v. Amalgamated Engg. Union, (1971) 1 All ER 1154. 

39. AIR 1966 SC 671. 


things objectively, but, an executive officer generally looks 
at things from the stand-point of policy and expediency. 
The habit of mind of an executive officer so formed cannot 
be expected to change from function to function or from act 
to act. So it is essential that some restrictions shall be 
imposed on tribunals in the matter of passing orders affecting 
the rights of parties : and the least they should do is to give 
reasons for their orders.*** (emphasis supplied) 

IfjkjL JjgjyJ^Jt^ thfrn Jfrjs the 

statutory requirement and therefore, there is no scope for further 

^9 uir _y/ %L. even \ w ^ en tfi"slatute^does jiot impost such an 
obligation it is necessary" ^t^-^wJn judicial authority to record 

L?E? oas > as *!_ 1S _ tne <on !y_ v L s ikJ e _l a f e u^ 
*JM!i s ll c _e arl( * arbitrariness^ 1 and affords protectionjo the person 
adversely affected^ Reasons are the links between the materials 
on which certain conclusions are based and the actual conclusions. 
They disclose hovv th*- mm I is applied to the subject matter 
for a decision, whether it is purely administrative or <7>/<m-judicial. 
They should reveal a rational nexus between the facts considered 
and the conclusions reached. Only in this way can opinions 
or decisions recorded be shown to be manifestly just and 
reasonable. 41 The^courts insist upon disclosure of reasons in 
sujggort^of Jhe orderon three grounds": ( 1 ) thejgarty aggrieved 
has the opportunity to demonstrate before the appellate or 
revisional court that the reasons which persuaded the Authority 
to reject his case were erroneous ; (2) th^ obligation _to^ recor3 
reasons operates as a ^deterrent against possible Arbitrary action 
by^ executive authority invested with judicial power ; and (3) it 
gives sati^fedion to _the party^ against wliom the order is made. 
The power to refuse to disclose reasons in support of the oroTer 
is of 'an exceptional in nature and it ought to be exercised fairly, 
sparingly and only when fully justified by the exigencies of an uncommon 
situation.** (emphasis supplied) 

If the order passed by the adjudicating authority is subject 
to appeal or revision, the appellate or revisional court will not 
be in a position to understand what weighed with the authority 
and whether the grounds on which the order was passed were 

40. AIR 1966 SC 671 at p. 675. 

41. Union of India v. M. L. Capoor, (1973) 2 SCO 836 : AIR 1974 SC 87. 

42. Per Chandrachud, J. in Maneka Gandhi's case (supra), at p. 323. 


relevant, existent and correct ; and the exercise of the right of 
appeal would be futile. It may be stated here that by a recent 
pronouncement of the Supreme C3Ui*t in Siemens Engineering v. 
Union of India* 3 , it is held that the rule requiring reasons to be 
recorded by quasi- judicial authorities in support of the orders 
passed by them is a basic priniciple of natural justice. In the 
aforesaid case, speaking for the Court, Bhagwati, J. observed : 

If courts of law are to be replaced by administrative 
authorities and tribunals, as indeed, in some kinds of cases, 
with the proliferation of Administrative Law, they may have 
to be replaced, it is essential that administrative autho- 
rities and tribunals should accord fair and proper hearing 
to the persons sought to be affected by their orders and give 
sufficiently clear and explicit reasons in support of the orders 
made by them. Then alone administrative authorities and 
tribunals exercising quasi- judicial function will be able to 
justify their existence and carry credibility with the people 
by inspiring confidence in the adjudicatory process. The 
rule requiring reasons to be given in support of an order is, like the 
principle of audi alteram par tern, a basic principle of natural justice 
which must inform every quasi-judicial process and this rule 
must be observed in its proper spirit and mere pretence of 
compliance with it would not satisfy the requirement of law. 44 
(emphasis supplied) 

Very recently, the same view is reiterated by the Supreme 
Court in Maneka Gandhi's c as e__{su p ra) , wherein Bhagwati, J. 
observed : ~ 

. . . .[T]he Central Government was wholly unjustified 
in withholding the reasons for impounding the passport from 
the petitioner and this way not only in the breach of statutory 
provision, but it also amounted to denial of opportunity of hearing 
to the petitioner. The order impounding the passport of the petitioner 
was, therefore, clearly in violation of the rule of natural justice 
embodied in the maxim audi alteram partem . . . . 44a (emphasis 

In Commissioner of Income Tax v. Walchand**, Shah, J. (as he 
then was) rightly observed : "The practice of recording a decision 
without reasons in support cannot but be deprecated". 

43. (1976) 2 SCO 981: AIR 1976 SO 1785, see also Testeels Ltd. v. JV. M. 

Desai, (1969) 10 GLR 622 : AIR 1970 Guj 1 (FB). 
4*. Ibid, at pp. 986-87 (SCO) ; p. 1789 (AIR). 
44a. (1978) 1 SCO 248 (292) : AIR 1978 SC 597 (630). 
45. AIR 1967 SC 1435 (1437) : (1967) 3 SCR 214 (217). 


The law relating to 'speaking orders 3 may be summed up 

(1) Where a statute requires recording of reasons in support 
of the order, it imposes an obligation on the adjudica- 
ting authority and the reasons must be recorded by the 
authority. 46 

(2) Even when the statute does not lay down expressly 
the requirement of recording reasons, the same can 
be inferred from the facts and circumstances of the 
case. 47 

(3) Mere fact that the proceedings were treated as confi- 
dential does not dispense with the requirment of record- 
ing reasons, 48 

(4) If the order is subject to appeal or revision (including 
special leave under Article 136 of the Constitution), 
the necessity of recording reasons is greater as without 
reasons the appellate or revisional authority cannot 
exercise its power effectively inasmuch as it has no 
material on which it may determine whether the facts 
were correctly ascertained, law was properly applied 
and the decision was just and based on legal, relevant 
and existent grounds. Failure to disclose reasons 
amounts to depriving the party of the right of appeal 
or revision. 49 

(5) There is no prescribed form and the reasons recorded 
by the adjudicating authority need not be detailed or 

46. Collector of Monghyr v. Keshau Prasad, AIR 1962 SC 1694 (1700) ; Union of 
India v. M. L. Capoor (supra) ; Ajantha Ind v. Central Board, AIR 1976 SC 

47. Bhagat Raja v. Union of India, AIR 1967 SC 1606 (1610) ; State of Gujarat v. 
Krishna Cinema, (1970) 2 SCC 744: AIR 1971 SC 1650; Bhagat Ram v. 
State of Punjab, (1972) 2 SCC 170 (178-79) : AIR 1972 SC 1571 (1577-78). 

48. Harinagar Sugar Milts v. Shyam Sunder, AIR 1961 SC 1669 (1678, 1683). 

49. M. P. Industries* case (supra) Bhagat Raja's case (supra) Mahavir Prasad v. 
State of U. P. t (1970) 1 SCC 764 : AIR 1970 SC 1302; Travancore Rayons 
v. Union of India, (1969) 3 SCC 863: AIR 1971 SC 862; Harinagar Sugar 

'Mills' case (supra) ; Sardar Govindrao v. Statt; AIR 1965 SC 1222. 


elaborate and the requirement of recording reasons will 
be satisfied if only relevant reasons are recorded. 50 

(6) If the reasons recorded are totally irrelevant, the exer- 
cise of power would be bad and the order is liable to 
be set aside. 51 

(7) It is not necessary to record reasons by the appellate 
authority when it affirms the order passed by the lower 
authority. 52 

(8) Where the lower authority does not record reasons for 
making an order and the appellate authority merely 
affirms the order without recording reasons, the order 
passed by the appellate authority is bad. 53 

(9) Where the appellate authority reversed the order passed 
by the lower authority reasons must be recorded, as 
there is a vital difference between an order of reversal 
and an order of affirmation. 54 

(10) The validity of the order passed by the statutory 
authority must be judged by the reasons recorded therein 
and cannot be construed in the light of subsequent 
explanations given by the authority concerned 55 or 
filing affidavit. * Orders are not like old wine becoming better 
as they grow older' < (emphasis supplied) 

(11) If the reasons are not recorded in support of the order, 
it does not always vitiate the action. 57 

50. M. P. Industries' case (supra) ; Bhagat Raja's case (supra) ; Shri Ram Vilas v. 

Chandra Shekharan, AIR 1965 SC 107 ; Mohd. Tasin All v. Akbar Khan, AIR 

1976 SC 1866 (1882) : (1977) 2 SCO 23 (41-42). 
5!. Collector of Monghyr (supra); Mis. Hochtief Gammon v. State of Orissa; 

(1975) 2 SCO 649 : AIR 1975 SC 2226. 

52. Bhagat Raja's case (supra) ; M. P. Industries' case (supra) \Travancoie Rayons' 
case (supra) ; Tarachand Khatriv. Municipal Corporation of Delhi, (1977) I 
SCC 472 ; AIR 1977 SC 567 

53. Bhagat Raja's case (supra) at p. 1612-13 

54. M. P. Industries' case (supra) : Bhagat Raja's case (supra), at p. 1613 ; Staff 
of Madras v. Shri Mvasan; AIR 1966 SC 1827. 

55. Commissioner of Police, Bombay v. Gordhandas, AIR 1952 SC 16. 

56. Per Krishna Iyer, J. : Mohinder Singh Gill v. Chief Election Commissioner, 
(1978) 1 SCC 405 (417) : AIR 1978 SC 851 (858) 

57. Mahavir Jute Mills v. Shibban Lai Saxena, (1975)2 SCC 818 (822): AIR 
1975 SC 2057 (2060) ; Rangnath v. Daulatrao, (1975) 1 SCC 686 : AIR 1975 
SC 2146 : Nandram v. Union of India, AIR 1966 SC 1922 


(12) The duty to record reasons is a responsibility and cannot 
be discharged by the use of vague general words. 67 * 

(13) The reasons recorded by the statutory authority are 
always subject to judicial scrutiny. 58 

This is the most valuable safeguard against any arbitrary 
exercise of power by the adjudicating authority. The reasons 
recorded by such authority will be judicially scrutinised, and if 
the court finds that the reasons recorded by such authority were 
irrelevant or extraneous, incorrect or non-existent, the order 
passed by the authority may be set aside. In Padfield v. Minister 
of Agriculture ', the Minister gave reasons for refusing to refer 
the complaint to the Committee and gave detailed reasons for 
his refusal. It was admitted that the question of referring the 
complaint to a committee was within his discretion. When his order 
was challenged, it was argued that he was not bound to give 
reasons and if he had not done so, his decision could not have 
been questioned and his giving of reasons could not put him in a 
worse position. The House of Lords rejected this argument and 
held that his decision could have been questioned even if he had 
not given reasons. Lord Upjohn observed : 

[I]f he does not give any reason for his decision, it may 
be, if circumstances warrant it, that a court may be at 
liberty to come to the conclusion that he had no good reason 
for reaching that conclusion and order a prerogative writ to 
issue accordingly. 

It is submitted that the aforesaid view is quite correct and as 
Lord Pearce 60 says, c a Minister's failure or refusal to record 
reasons cannot be regarded as exclusion of judicial review. By 
merely keeping silence the Executive cannot prevent the Judiciary 
from considering the whole question 9 . The same principle is accepted 
in India. In Hochtief Gammon v. State of Orissa (supra), the Supreme 
Court held that it is the duty of the court to see that the Executive 
acts lawfully and it cannot avoid scrutiny by courts by failing to 
give reasons. " Even if the Executive considers it inexpedient to exercise 

57a. Elliot v. Southwark London Borough Council, (1976) 1 WLR 499. 

58. Hocktitf's case (supra) . 

59. (1968) AC 997. 

60. Ibid. 


their powers they should state their reasons and there must be material to 
show that they have considered all the relevant facts.* 1 (emphasis sup- 

I must conclude the matter by quoting the following powerful 
observations of Ghandrachud, J. (as he was then) in Maneka 
Gandhi v. Union of India** : 

The reasons, if disclosed, being open to judicial scrutiny 
for ascertaining their nexus with the order impounding the 
passport, the refusal to disclose the reasons would equally 
be open to the scrutiny of the Court ; or else, the wholesome 
power of a dispassionate judicial examination of executive 
orders could with impunity be set at naught by an obdurate 
determination to suppress the reasons. Law cannot permit the 
exercise of a power to keep the reasons undisclosed if the sole reason 
for doing so is to keep the reasons away from judicial scrutiny. 
(emphasis supplied) 

61. Per Alagiriswami, J. in Hochtief's case (supra). 

62. (1978) 1 SCO 248 : AIR 1978 SO 597. 
63. Ibid, at p. 323 (SCO) ; p. 613 (AIR). 

Lecture VII 

Nothing is more remarkable in our present social and administrative 
arrangements than the proliferation of tribunals of many different 
kinds. There is scarcely a new statute of social or economic complexion 
which does not add to the number. SIR C. K. ALLEN 

The proper tribunals for the determination of legal disputes in this country 
are the courts, and they art the only tribunals which, by training and 
experience and assisted by properly qualified advocates are fitted for the 

.. [Tribunals have certain characteristics which often give them advan- 
tages over the courts. These are cheapness, accessibility, freedom 
from technicality, expedition and expert knowledge of their particular 

1 . General 

2. Definition 

3. Reasons for the growth of administrative tribunals 

4. Administrative tribunal distinguished from a court 

5. Administrative tribunal distinguished from an executive authority 

6. Characteristics 

7. Working of tribunals 

(i) Industrial Tribunal 
(ii) Income Tax Appellate Tribunal 
(n't) Railway Rates Tribunal 

8. Administrative tribunals and principles of natural justice 

9. Administrative tribunals and the rules of procedure and evidence 

10. Reasons for decisions 

1 1 . Finality of decisions 

12. Decisions of tribunals and judicial review 

13. Review of decisions 

14. The doctrine of res judicata 

15. Limitations 

16. The Franks Committee 

[ 150 1 



As discussed in Lecture III (supra), today the executive per- 
forms many legislative, quasi- legislative, judicial and quasi-judicial 
functions. Governmental functions have increased and even 
though according to the traditional theory, the function of adjudi- 
cation of disputes is the exclusive jurisdiction of the ordinary 
courts of Jaw, in reality, many judicial functions have come to be 
performed by the executive, t.g. imposition^ fine, p^naltyjeyi^ 
able by Income Tax Officer for concealment of income, confis- 
cation of smuggled goods, etc. The traditional theory of 'laissez 
faire* has been given up and the old 'police state 3 has now become 
a 'welfare state', and because of this radical change in the philo- 
sophy as to the role to be played by the state, its functions have 
increased. Today it exercises not only sovereign functions, but, as 
a progressive democratic state, it also seeks to ensure social security 
and social welfare for the common mass. It regulates the indus- 
trial relations, exercises control over production, starts many 
enterprises. The^issues arising therefrom are^ not purely_Jegai 
issues. It is not possible Tor the ordinary courts of Igjvjojdgji 
with all these socio-economic problems. For example, industrial^ 
disputes between the workers and the management must be 
settled as early as possible. It is not only in the interest ofjthe 
parties to the disputes, but of the society at large. Yet it is not 
possible"" for "an "ordmaTy court of law to decide these disputes 
expeditiously, as it has to function, restrained by certain innate 
limitations. All the same, it is necessary that such disputes should 
not be determined in an arbitrary or autocratic manner. Ad- 
ministrative tribunals are, therefore, established to decide various 
quasi-judicial issues in place of ordinary courts of law. ./These 


It is not possible to define the word 'tribunal' precisely and 
scientifically. According to the dictionary meaning, 2 'tribunal* 

c\ _________ *~~~ ~~~" 

1. ) Arts. 32, 136, 226 and 227 [prior to the Constitution (42nd Amendement) 
-^ Act, 1976]. 

Arts. 323A and 323B [after the Constitution (42nd Amendement) Act r 

2. Webster's New World Dictionary, (1972), p. 1517. 


means c a^eat^pr_a bench upon which a jjudj^^rjudges sit in a 
court*, 'a court M ^_JIi?tice J . But this meaning is very wide as it 
includes'even the ordinary courts of law, whereas, in administra- 
tive law this expression is limited to adjudicating authorities other 
than ordinary courts of law\ ~~" ~^> == ^ - 

In Durga Shanker Mehta v. Raghuraj Singh*, the Supreme Court 
defined * trTBiinaF ihlBeTbllowing woFdsl " 

...[TJhe expression "Tribunal" as used in Article Ijfi. 
does not mean the same thing as "Court" but includes, 
within its ambit, all adjudicating bodies T provided they are 
constituted by_the_State^ and are invested^ with J udicial as 
dfelinguTsTfe3ffom administrative or executiveTunctions. 

In Bharat Bank v. Employees*, the Supreme Court observed that 
though tribunals are clad in many of the trappings of a court and 
though they exercise quasi-judicial functions, they are not full- 
fledged courts. Thus, a~tHEunal"ls^rr 

decI3es controversies between the parties and exercises judicial 
powers as distinguished from purely administrative functions and 
thus possesses $om of the trappings of a court, but not all. 5 



According to Dicey^s_theory of rule of law the ordinary law oi 
the land must be administered by the ordinary law courts. _He 
the establishment of administrative tribunals. 

According to the classicaljheQry and the doctrine^of separation of 
powers, the functionToFdeciding disputes between the parties 
belonged to the ordinary courts of law. But, as discussed above, 
the governmental functions have increased and ordinary courts of 
law are not in a position to meet the situation and solve the 
complex problenis_ arising in^the changed _sgjgio.-econgmjc context. 
Tn these circumstances, administrative tribunals are established for 
the following reasons : 

(1) The traditionaj^judicia^ proved inadequate to 

decide and settle all the disputes requiring resolution. 

3. AIR 1954 SC 520 (522). 

4. AIR 1950 SC 188. 

5. Ibid. All Party Hill Leader? Conference v. Sangma, (1977) 4 SCO 161 : AIR 
1977 SC 2155. 

, A.C.C. v. Sharma, (infra). 


It was slow, costly, in-expert, complex andjgjgunalistic. 
It was already overburdened, and it was not possible 
to expect speedy disposal of even very important 
matters : e.g. disputes between employers and em- 
ployees, lock-out, strikes, etc. These burning problems 
cannot be solved merely by literally interpretingjthe 
prov|sions^f^mj^tatute, but require the consideration^ 
oTvarious other factors and this cannot be accomplished 
by the courts of law. Therefore^ Jndustrial Jrihunals 
and labour courts wejre^gj^blisb^d^ which possessed the 
technique and expertise to handle these complex pro- 

(2) The administrative authorities can avoid technicalities. 
They take a functional rather_ than a theoretical and 
legalistic approach. The traditional judiciary JS^CQIL- 
servative, rigid and technical. It is not possible for the 
courts of law to decide the cases without formality 
and technicality. On the other hand, administrative 
tribunals are not _ bound by the rules of evidence and 
procedure and they can take practical view of the 
matter to decide the complex problems. 

(3) Administrative authorities can take preventive meas- 
ures ; e.g., licensing, rate fixlng^e^ 

courts of law, they have not to wait for parties to come 
before them with disputes. In many cases, these 
preventive actions may prove to be more effective and 
useful than punishing a person after he has committed 
a breach of any legal provision. 

(4) Administrative authorities can take erYejCtivg steps for 
enforcement of the aforesaid preventive measures ej^ 
suspensTon7 "revocation ~ "of ""cancellation of licences, 
destruction of comninated articles, etc. which are not 
generally available through the ordinary courts of law* 

(5) In ordinary courts of law, the decisions are given 
after hearing the parties and on the basis of_the evi- 
clench on record. THIsT^procedure is not appropriate 
in~decidin^maUers by the administrative authorities 
where wide discretion is conferred on them and the 


decisions may be given on the basis of the depart- 
mental policy and other relevant factors. r~ 

(6) Sometimes, the disputed questions are technical in 
nature and the traditional judiciary cannot be expected 
to appreciate and decide them. On the other hand, 
administrative authorities are usually manned by 

Pexperts] who can deal with and solve these problems, 
e. g. problems relating to atomic energy, gas, elec- 
ricity, etc 

(7) In short, as Robson says, administrative tribunals do 
their work 'more rapidly, more cheaply, more efficiently 
than ordinary courts. . .possess greater technical know- 
ledge and fewer prejudices against government... give greater 
heed to the social interests involvedTT. decide disputes 
with conscious effort at furthering social policy em- 
bodied in the legislation '. 6 (emphasis supplied) 


An administrative tribunal is similar to a court in certain 
aspects.* Both of them are constituted by the State, invested 
with judicial^ powers and have a permanent existence. Thus, 
they are adjudicating bodies. They deal with and finally 
decide disputes between parties which are entrusted to them. As 
observed by the Supreme Court in Associated _ Cement Co. v_ 
P. JV. Sharma 1 ) 'the basic and the fundamental feature which is 
common to both the courts and the tribunals is that theyjdis^ 
charge judicial functions and exercise judicial powers __ which 
inherently vest in aTsovereign 

But at the same time, it must not be forgotten that an ad- 
ministrative tribunal is not^ a court. A tribunal possesses some 
oFlhe trappings of'ia' courTTHSutnot all, 8 and therefore, both 
must be distinguished : 

(1) A court of law is a part of the traditional judicial 
system. Where judicial powers are derived from the 
state and the body deals with King's justice it js^called 

6. Quoted by Kagzi : The Indian Administrative Law : (1973), p. 284. 

7. AIR 1965 SO 1595 (1599). 

8. Ibid. 


a 'court*. On the other hand, an administrative tribunal 
1S an agency Created by^ a statute and invested with 
judicial powers. Primarily and essentially, it is a part 
and parcel of the Executive Branch of the state, exer- 
cising excutive as well as judicial functions. As Lord 
Greene 9 states, administrative tribunals perform 'hybrid 

judges of ordinary courts of law are independent of 
the executive in respect of their tenure, terms and 
conditions of service, etc. On the other hand, mem- 
bers of administrative tribunals are entirely in the 
hands ofthe government in respect of the same. 

(3) A court of law is generally presided over by an officer 
trained in law^ but the president or a member of a 
tribunal may not be trained as well in law. 

(4) In a court of law, a judge must be an^mpartiai 
arbiter and he cannot decide a matter in which he is 

InteresFed. On the other hand, an administrative 

tribunal .^jnavbe-j:*^ 
j>y it. 

(5) A court of law j^J^undJ^y aU^hejrules of evidence 
an^^grocedure but an administrative tribunaTls^hot 
bound by those rules unless the relevant statute imposes 
such an obligation. 10 

(6) A court must decide all the questions objectively on the 
basis of the evidence and materials produced before 
it, but an administrative tribunal may decide the 
questions taking into account the departmental policy^ 
orjjxpediency and in that sense, tHe Decision may be 
subjective rather \^^ 

(7) While a court of law is bound by 

estoppel*_an administrative tribunal 

is not strictly bound by them. 11 

9. B. Johnson v. Minister of Health, (1947) 2 All ER 395 (400). 
See also Bharat Bank** case (supra). 

10. For detailed discussion see pp. 164-166 (infra). 

11. For detailed discussion ste pp. 173-74 (infra). 


(8) A court of law can decide the 'vires' ofjUegislation, 
while an administrative tribunal cannot do so. 12 


At the same time, an administrative tribunal is not an execu- 
tive body or administrative department of the government. The 
functions entrusted to and the powers conferred on an administra- 
tive tribunal are not purely administrative in nature. It cannot 
^Jegate_ij;^_ii^t : j^icial fiinctions to an^y^^^_ajUhority^or 
official. It cannot give decisions without giving an opportunity 
of^being heardjo the parties or without observing the principles 
of I uraus An administrative tribunal is bound to act 

judicially. It must record findings ,of facts, apply legal rules to 
them correctly and give its decisions. Even when the discretion 
is conferred on it the same must be exercised judicially and 
in accordance with well established principles of law. The pjre- 

and j>rohibition_are available against 

_^ _ 

the decisions of administrative tribunals. "They__are 
trative* only because they are part of an administrative scheme 
for which a minister is responsible to Parliament, and because 
the reasons for preferring them to the ordinary courts are admi- 
nistrative reasons/' 13 


The following are the characteristics of an administrative 
tribunal : 

(1) An administrative tribunal is the creation of a statute 
and thus, it has a statutory origin. 

(2) It has ^omejof the trappings of a court_but not all. 

(3) An administrative tribunal is entrusted with the judicial 
powers of the state and thus, performs judicial and 

s, as distinguished from pure 

administrative oF~executive functions and is bound to 
act judicially. 

12. Bharat Bank's case (supra) at p. 206. 

Dhulabhai v. State, AIR 1969 SO 78. 
13* Wade : Administrative Law, (1977), p. 744. 


(4) Even with regard to procedural matters, an adminis- 
trative tribunal possesses pow^s oj^i^court,; e. g. to 
summon witnesses, to administer oath to compel pro- 
duction of documents, etc. 

(5) An administrative tribunal is not bound by the strict 
rules of evidence and procedure. _ 

(6) The decisions of the most of the tribunals are in fact 
judicial rather than administrative inasmuch as they 
have to record findings of facts objectively and then to 
apply the law to them without regard to executive 
policy. Though the discretion is conferred on them, 
it is to be exercised objectively andju^ially. 14 f 

(7) Most of the administrative tribunals are not concerned 
exclusively with the cases in which government is a 
party ; they atlso decid^^disputes^between two 


parties e. g. Election Tribunal,^ Rent Tribunal^ 
J e tc - On the other hand, the 

Income Tax Appellate "Tribunal always decides disputes 
between the government and the assessees. 

(8) Administrative tribunals are independent^ and they are 
not subject to any administrative interference in the 
discharge of their judicial or quasi-judicial functions. 

(9) The prerogative writs of certiorari and prohibition are 
available against the decisions of administrative 

Thus, taking into account the functions being performed and 
the powers being exercised by administrative tribunals we may 
say that they are neither exclusively judicial nor exclusively 
administrative bodies, but are partly administrative and partly 
judicial authorities. 


There are a number of administrative tribunals in India. For 
example, Industrial Tribunals, Labour Courts, Workmen's Compen- 
sation Co l mmSSners^established und^r^FeTndusTnaTTiaws^ Rail- 

way Hates Tribunal established under the Indian Railways Act, 

14. Wade : Administrative Law, (1977) at pp. 743-44. 


Election Tribunals established under the Representation of People 
Act, Mines Tribunals^established under the Indian Mines Act, 
Rent Controller appointed under the Rent Acts etc. 

Let us study the actual working of some of the tribunals to 
understand the constitution of the tribunals, the procedure adopt- 
ed by them and their powers and duties. 

(i) Industrial Tribunal 

The Industrial Tribunal is set up under the Industrial Disputes 
Act, 1947, It can be constituted by the Central Government if 
an industrial dispute relates or in any way concerns the Central 
Government, but where the Government of India has no such 
direct interest, the tribunal may be constituted by the 'appropriate 
government \ 

The Industrial Tribunal may consist of one or more members, 
and they can be appointed by the Central Government or by the 
'appropriate ^pvernment^ as the case may be. Where such 
tribunal consists of two or more members one of them will be 
appointed as the Chairman of the tribunal. There may be a 
one-man tribunal also. The Chairman of the tri5uiial~sliould 
possess~judicial qualifications i v e. he (a) is of has been a Judge of 
the High Court ; or (b) is or has been a District Judge ; or (c) 
is qualified for appointment as a Judge of the High Court. With 
regard to members other than the Chairman, they should possess 
such qualifications as may be prescribed. Where an industrial 
dispute affecting any banking or insurance company is referred 
to the tribunal, one of the numbers in the opinion of the Central 
G,v/eram?nt or 'appropriate government' should possess special 
knowledge of banking or insurance as the case may be. 

The jurisdiction of the tribunal extends to any industrial 
dispute, such as dispute between employers and_theirjvorkmen or 
between woijcmenjmd workmeiL/connected with the employment 
or non-employment or the terms of employment or with the condi- 
tions of labour of any person*. 

The procedure to be followed by the Industrial Tribunal is 
prescribed by the Act and the rules made thereunder. The 
tribunal has to act judicially as it is a #Mjihjudia^ 
It has some of the trappings of a court. ^It has to apply the law 


and also thej^inciples of justice^ equity and good conscience J 15 
The tribunal is vested with powers of cIviTlxmrt, and it can 
enforce attendance of any person and examine him on oath, 
compel the production of documents, issue commission for exa- 
mination of witnesses and such inquiry and investigation shall be 
deemed to be a judicial proceeding within the meaning of Sections 
193 and 228 of the Indian Penal Code, 1860. Every member 
of the tribunal shall be deemed to be a 'public servant' within 
the meaning of Section 2 1 of the Penal Code. 

At the same time the tribunal has to keep in view that it 
deals with special types of disputes and it should not merely 
enforce contractual obligations. It should prevent unfair labour 
practices and victimisation and restore industrial peace by ensuring 
the salutory principle of collective bargaining. 16 

Though the function of the tribunal is to adjudicate on indus- 
trial disputes, it has only some of the trappings of the court, but 
not all. It is not bound by the strict rules of procedure and can 
take decisions by exercising discretion also. Since its object is to 
do social justice, 'to a large extent* it is free from the restrictions 
9f technical considerations imposed on ordinary law courts. 17 
All the same, the tribunal is a quasi -judicial authority discharging 
^Ji^jj^dicial functions and is not purely an administrative body. 
Therefore, its adjudication must be on the basis of 'fairness and 
justness'. It has to act within the limits of the Industrial Disputes 
\ct. Social justice divorced from the legal principles applicable 
to the case on hand is not permissible. 18 It has power to adjudicate 
and not to arbitrate. It can decide the dispute on the basis of the 

pleadings and h^snopower to reach a conclusion without any 

evidence on record. TGough discretion is conferred on it, the same 
must be exercised judiciously. It has to hold the proceed- 
ings in public. It should follow fair procedure such as notice, 
hearing, etc. and must decide disputes fairly, independently and 

The tribunal's awards are published in the Government 
Gazette. On due publication, thg^wad_jbecprnes final. It is 

15. NTF Mills v. 2nd Punjab Tribunal, AIR 1957 SC 329. 

16. Llyod's Bank Ltd. v. Staff Association, AIR 1956 SC 746. 

17. Bengal Chemical Works v. Employees, AIR 1959 SC 733. 

18. JK Iron and Steel Co. Ltd. v. Mazdoor Union, AIR 1956 SC 231. 


required to be signed by all the members of the tribunal. If it is 
not signed by all the members, the same is illegal and inopera- 
tive. 19 

Thus, the proceedings conducted by the Industrial Tribunal 
are judicial proceedings and the decisions and awards are subject 
to the writ jurisdiction of the High Court under Article 226 
of the Constitution. 20 The tribunal is also subject to the super- 
visory jurisdiction of the High Court under Article 227 of the 
Constitution. 21 Article 136 of the Constitution vests the Supreme 
Court with discretion to entertain appeals against the orders 
of tribunals by granting special leave. But having regard to 
the nature of powers of the Supreme Court under Article 136, 
the Supreme Court is slow in exercising such discretion and it 
interferes only in exceptional cases. 22 

(ii) Income Tax Appellate Tribunal 

The Income Tax Appellate Tribunal is constituted under the 
Income Tax Act, 1961. It consists of as many judicial and account- 
ant members as the Central Government thinks fit. A judicial 
member must have held at least for ten years a judicial post or 
must have been a member of the Central Legal Service (not 
below Grade III) for at least three years or must have been in 
practice as an advocate for at least ten years. An accountant 
member must be a Chartered Accountant under the Chartered 
Accountants Act, 1949 and must have practised as such for ten 
years or must have served as Assistant Commissioner for at 
least three years. The appointments are made by the Central 
Government. The Chairman of the Tribunal shall be appointed 
from amongst the judicial members. The conditions of service of 
the members are regulated by the President of India in exercise 
of powers conferred by the proviso to Article 309 of the 
Constitution. The tribunal sits in benches in various cities, such 
as Ahmedabad, Allahabad, Bombay, Calcutta, Delhi, Madras, 
etc. The tribunal functions under the control of the Ministry 

19. Llyod's Bank's case (supra) ; United Commercial Bank v. Workmen, AIR 1951 
SC230: (1951) SCR 380. 

20. Express Newspapers v. Workers, AIR 1963 SO 569 : (1963) 3 SCR 540. 

21. Prior to the Constitution (42nd Amendment) Act, 1976. 

22. Bharat Bank's case (supra). 


of Law and not under the Ministry of Finance. This ensures 
independence of judgment by its members and inspires confidence 
in the assessees. 

Appeals can be filed before the tribunal by an aggrieved party 
against the order passed by the Appellate Assistant Commissioner, 
Inspecting Assistant Commissioner or Commissioner within a 
period of 60 days. 23 The tribunal shall decide the matter only 
after giving both the parties to the appeal an opportunity of being 
heard. If the parties do not appear at the time of hearing, the appeal 
may be adjourned or heard ex parte. The assessee is entitled to 
appear before the tribunal personally or through an authorised 
agent including a lawyer. The tribunal is not governed by the 
rules of evidence applicable to the courts of law and is empowered 
to regulate its own procedure. It gives oral hearing to the parties 
and passes appropriate orders. The decisions may be unanimous 
or by a majority opinion. If there is equal division, the members 
state the points of difference and the President will refer the matter 
for hearing to one or more other members. The matter will then 
be decided by majority of all the members who have heard it. 
The order passed by the tribunal must be in writing and signed 
by the members of the bench. It will be communicated to thc> 
assessee as well as to the Commissioner of Income Tax. 

The proceedings before the tribunal are deemed to be judicial 
proceedings. It has the power of summoning witnesses, enforcement 
of attendance, discovery and inspection, production of documents 
and issue of commissions, as it has been given powers of a civil 
court under the Code of Civil Procedure, 1908. It can order 
prosecution of persons who produce false evidence or fabricate 
such evidence and they may be punished under the Indian 
Penal Code, 1860. It may also take appropriate actions for its 
contempt. It may impound and retain books of account. The 
proceedings of the tribunal are not open to the public and there 
is no provision for publication of its decisions. Of course, there 
are various private tax journals reporting such decisions; e, g.. 
Taxation, Current Tax Reports, etc. 

23. S. 253. 


The decisions of the tribunal on questions of fact are final. 24 
No regular appeal is provided by the Act against the decision 
of the tribunal even on questions of law but a reference can be 
made at the request of either party to the High Court on any 
question of law or directly to the Supreme Court if the tribunal is 
of the opinion that there is conflict of opinions amongst the 
High Courts. From the judgment of the High Court on a 
reference from the tribunal, an appeal lies to the Supreme Court 
in a case in which the High Court certifies it to be a fit case for 
appeal to the Supreme Court. 

fiii) Railway Rates Tribunal 

The Railway Rates Tribunal was established under the 
Indian Railways Act, 1890. It consists of a Chairman who 'is 
or has been a judge of the Supreme Court or of a High Court' 
and two members, who have, in the opinon of the Central 
Government have 'special knowledge of commercial, industrial 
or economic conditions of the country or of the commercial 
working of the railways'. They shall be appointed by the 
Central Government and the terms and conditions of their 
appointment may be such as the Central Government may 
prescribe. The members so appointed are to hold office for such 
period as may be specified in the order of appointment, not 
exceeding five years. No member can be reappointed. The tribunal 
may, with the sanction of the Central Government, appoint such 
staff and on such terms and conditions as the Central Government 
may determine. 

The tribunal is a quasi-judicial body, having all the attributes 
of a civil court under the Code of Civil Procedure, 1908. It has 
power to summon witnesses, take evidence, order discovery and 
inspection of documents, issue commissions, etc. The proceedings 
of the tribunal are deemed to be judicial proceedings within the 
meaning of Section 195, Chapter XXVI of the Code of Criminal 
Procedure, 1973. The tribunal is not bound by strict rules of 
evidence and procedure and is empowered to frame its own rules 

24. C. /. T. v. Indian Woollen Mills, AIR 1964 SO 735 ; Indian Cements v. C.I.T., 
AIR 1966 SO 1053; C. /. T. v. Meenakshi Mills, AIR 1967 SC 819; K.C. 
Thapar v. C. I. T*., AIR 1971 SC 1590 : (1972) 4 SCC 124; Anil Kumar v. 
C. /. T., (1976) 4 SCC 716: AIR 1976 SC 772. 


for the purpose of 'practice and procedure ', subject to approval 
of the Central Government. 

The tribunal has the power to hear complaints against the 
railway administration relating to discriminatory or unreasonable 
rates levied by it, classification of goods or in giving undue 
preference to a particular person. 25 The tribunal acts with the 
aid of assessors who are selected from a panel prepared by the 
Central Government. This panel includes representatives of 
trade, industry, agriculture and persons who have a working 
knowledge of the railways. They are selected after consultation 
with the interests likely to be affected by the decisions of the tribunal. 

A party before the tribunal is entitled to be heard in person 
or through an authorised agent including a lawyer. The 
decision of the tribunal is to be made by a majority of members, 
Its decision is final and can be executed by a civil court 'as if it 
were a decree'. The tribunal can revise its order on an appli- 
cation being made by the railway administration if the tribunal 
is satisfied that 'since the order was made, there has been a 
material change in the circumstances'. 

Since the tribunal is presided over by a judge of the Supreme 
Court or a High Court, independence and impartiality is 
assured. 26 This is the most valuable safeguard as the tribunal has 
to decide the disputes between an individual and the administra- 



As discussed above, administrative tribunals exercise JudjcjaL 
functions as distingujshed^from 

^ ^^ 

tive functions. An essential feature of these tribunals is that they 
decide the disputes independently, judicially, objectively and without 
any bias for or prejudice against any of the parties to the dispute, 
The Franks Committee, in its Report (1957) has proclaimed 
three fundamental objectives ; (i) openness, ^u}_Jair ness > . and (Hi) 
impartiality. The Committee observed : 

^!n the field of tribunals openness appears to us to 

25. Union of India v. W. C. Paper Mills, (1970) 3 SCO 606 : AIR 1971 SC 349. 
26. Ibid. Union of India v. Indian Sugar Mills, AIR 1968 SC 22. 


require the /publicity) of proceedings and( knowledge/ of jLbe 
essential ^reasoning Jj^P^^lyin? Uie__deisiQJis^ fairness to 
require^ the ^^dptiorToT a clear procedure which enables 
parties to know their rights, to present their case fully jind 
to know the~^ase^ which they have to meet ; and impartiality 
to^qulrTrtieTreedom of tribunals from the influence, real 
or apparent of Departments concerngr^With trTe~l;u15ject- 
matter of their decisions. """ ~"~~ 

The said principle is accepted in India also. The Law 
Commission injts Fourtfifigth Report (1958) has observed that 
aTIrnlmsTr aj^e_trjb^^ udiciaj^un^pjis_and_th.ey 

must_aLCt_judicially and in accordance wjth the principles of 
naturaLjustice.JJ Administrative tribunals must act openly, 
fairly and impartially. They must afford a reasonable opportunity 
to the parties* to ^represent their case and to adduce the relevant 
evidence. Theiir^^decisions must be objective and not subjective. 
Thus, in State of ^_P*_v^jV00ft 28 j where the prosecutor was also 
an adjudicating officer, or in Dhiketawari Cotton Mill's _cas_eSL 
where the tribunal did not disclose some evidence to the assessee 
relied upon by it, or in Bishambharnath' s case 30 , where the adjudicat- 
ing authority accepted new evidence at the revisional stage and 
relied upon the same without giving the other side an oppor- 
tunity to rebut the same, the decisions were set aside. In 
British Medical Stores v. Bhagirath 31 , <on an application being made 
^5y~the tenants, a Kelir^ColTffolteT-' made private inquiry, visited 
the premises in the absence of the landlord and without giving 
him the opportunity of being heard held that the contractual rent 
was excessive and fixed the standard rent. The High Court set 
aside the order as violative of the principles of natural justice. 



Administrative tribunals have (inherent ) powers_to jegulate 
their own procedure subject to m~e~ "statutory requirements. 

27. Report on Reform of Judicial Administration, Vol. II (1958), pp. 671-95; 
Union of India v. T.R. Verma, AIR 1957 SC 882 : (1958) SCR 499. 

28. Supra, p. 128. 

29. Supra, p. 137. 

30. Supra, p. 137. 

31. AIR 1955 Punj. 5.Sce also State of Haryana v. Rattan Singh, (infra). 


Generally, these tribunals are i nv f?^whpowers conferred on 
civil courts by Code of Civil 

moning of witnesses and enforcement of attendance, discovery 
and inspection, production of documents, etc. The proceedings 
of administrative tribunal* are deemed to be judicial proceedings 
for the purposes oF Sections 193, 195 and 228 _"of _the 
PenalGode, 186Q_jnd Section^ J^lmd '"346 o ^ 
Criminal Prooedure^ _1973. But^ tKese tribunals are not bound by 
strict rules of procedure and evidence, provided that they observe 
princigles of natural justice ^ 1[ ^_^^J^^' Thus, technical 
rules of evidence" do noT~apply to their proceedings, and__they can 
rely on hearsay^vidence or decide the questions of onus of prool 
oF~a'3missibility of docunients^ etc. by exercising discretionary 
poweis. 32 In State of Mysore v. Shivabasappa?*^the Supreme "Courl 
observed : ^~ ~~~~ ~~ 

. . .[TJribunals exercising quasi-judicial functions are 
not courts and that therefore they are not bound to follow 
the procedure prescribed for trial of actions in Courts nor 
are they bound by strict rules of evidence. They can, unlike 
Courts, obtain all information material for the points under 
enquiry ^from^IT^ources, anli~ThTollgh~~atI icMnneTsT" without 
belrfg~Tetfered by rules alid procedure which govern proceed- 
ings in Court. The only obligation which the law casts on 
them is that they ^ouW~ndr~acr~dn any information which they 
may receive unless they put it to the party against whom it w to be 
used and ^ 7w?f^^ WKaTiif a 

fair opportunity must depend on the facts and circumstances 
of each case but where such an opportunity had been 
given, the proceedings are not open to attack on the ground 
that the enquiry was not conducted in accordance with the 
procedure followed in Courts, (emphasis supplied) 

In State of Haryana v. Rattan Singh, speaking for the Court, 
Krishna Iyer, J. observed: 

It is well settled that in a domestic enquiry the strict 
and sophisticated rules of evidence under the Indian Evidence 
Act may not apply. All materials which are logically proba- 
tive for a prudent mind are permissible. There is no allergy 
to hearsay evidence provided it has reasonable nexus and 

32. State of Orissa v. Murlidhar, AIR 1963 SC 404. 

33. AIR 1963 SC 375 (377). See also K.L. Shinde v. State of Mysore, (1976) 3 
SCC 76 : AIR 1976 SC 1080. 

34. (1977) 2 SCC 491 (493) : AIR 1977 SC 1512 (1513). 


credibility. It is true that departmental authorities and 
administrative tribunals must be careful in evaluating such 
material and should not glibly swallow what is strictly 
speaking not relevant under the Indian Evidence Act. . . The 
essence of a judicial approach is objectivity, exclusion of extraneous 
materials or considerations and observance of rules of natural justice. 
(emphasis supplied) 

It is submitted that the correct legal position" has been 

enunciated by Diplock, J. in R. v. Deputy Industrial Injuries Com- 

missioner, ex parte Moore 35 /- ~~~~ ~~ ~~~ 

" . . . T [E]vidence' is not restricted to evidence which 

would be admissible in" a" court ot^Javv^ For historical 

reasonsTBased ^^ onHSF~ISFtliat juries^who might be illiterate 

would be incapable of differentiating between the probative 

values of different methods of proof, the practice of the 

common law courts has been to admit only what the judges 

then regarded as the best evidence of any disputed fact, and 

thereby to exclude much material^ which, as a matter of 

common sense, would ^a^sisij^Jacl-fi^cjmg tribunano reach 

a correct conclusion. . . 

These technical rules ofevjj^njcej^Jig^vever, form na 
^ the rules cT^ialuTalTSsticj^ The requirement that 
a person exercising quasi-judicial functions must base his 
decision on evidence means no more than it must be based 
which tends logically to show the existence or 

be jetermined^ 

or tG^shovvTHelikeliriood or unlikelihood^of the 
somejfujture event the occurrence of which woulO^relev ant. 
It means tKdt he musTnot spirTa coin or consult an astrologer, but 
that he must take into account any material which, as a matter of 
reason, hasjtome (probative valu^ . . . // it is capable of having any 
probative value, the weight w be attached to it is a matter for the 
person to whom Parliament has entrusted the responsibility of deciding 
the issue: The su^ervisory^jurisdictio^ does not 

entitle it to usurp tms responsibiTlly~~an^^ J^!LJ^ W 

for his. (emphasis supplied) 

Yet as held by the Supreme Court in the case of Bareilly 
Electricity v. Workmen**, this does not meanthat administrative 
tribunals can decide a matter without any evidence on rgcord or 
can act upon what is not evidence in the eye oi law or on a 
document not proved to be a genuine one. 

3.5. (1965) 1 QB 456 (488). 

36. (1971) 2 SCO 617 : AIR 1972 SC 330. 



Recording of reasons in support of the order is considered to 
be a part of natural justice, and every quasi -judic&l authority 
including an administrative tribunal hk bound to record reasons 
in support of the orders passed by it(fv 


In many statutes, provisions are made for filing appeals or 
revisions against the orders passed by administrative tribunals 
and statutory authorities. For example, under the Bombay 
Industrial Relations Act, 1946, an appeal can be filed before the 
Industrial Tribunal against the order passed by the Labour Court ; 
or to the Rent Control Tribunal against the order passed by the 
Rent Controller under the Delhi Rent Control Act, 1958 or to the 
Income Tax Appellate Tribunal against the order passed b) 
the Appellate Assistant Commissioner, inspecting Assistant 
Commissioner or Commissioner under the Income Tax Act, 1961. 

However, sometimes, the provisions are made in a statute b> 
which the orders passed by administrative tribunals and other 
authorities are made 'final* '. This is known as 'statutory finality" 
and it may be of two types : " ~ 

(i) Sometimes no provision, is made for filing any appeal, 
revision or reference to any higher authority against 
the order passed by the administrative tribunal or 
authority; or 

(it) sometimes an order passed by the administrative autho- 
rities or tribunals are ^^^^M^^-^^A anc * J ur ^ s ^ c " 
tion of civil courts is also ousted. 

With regard to the first type of 'finality', there cannot be any 
objection, as no_nne. has an inherent right of apgeal. It is merely 
a statutory right and if the statute does not confer that right on 
any party and treats the decision of the lower authority as 
final, no appeal can be filed against that decision. Thus, 
under the Income Tax Act, l_96jj/the decision given by the 
Income Tax Appellate Tribunal on a question of fact is made 
final and no appeal lies against that finding to any authority. In 

377 Supra, pp. 143-149. 


the same manner, under the Administration of Evacuee Property 
Act, 1951, the order passed by the Custodian of Evacuee Property 
is made final and no appeal or revision lies to any authority 
against the said decision. 

With regard to the second type of finality, provisions are 
made in some statutes by which the decisions recorded by adminis- 
trative tribunals are expressly made final and jurisdiction of civil 
courts is also ousted. ^And^^ven^though the subject-matter of 
the dispute may be ora^i^^iature jtnd therefore, covered by 
Section 9 of the Code of Civil IProcedure, 1908, a civil suit is 
barred by the statutory provision. For example, Section 170 of 
the Representation of the People Act, 1951 provides : 

No civil court shall have jurisdiction to question the 
legality of any action taken or any decision given by the 
returning officer or by any other person appointed under this 
Act in connection with an election. 38 ^ 

In these cases, the correct legal position is that the jurisdiction 
of civil courts must be ousted either^expressly or by__ngggjsary 
implication. Even^lTTHe~j urisdiction of civil courts is ousted, they 
have jurisdiction to examine the cases where the provisions of 
the Act and the Rules made thereunder havelntor^ee^complied 
witE^rid~ffrel^eFpa^ or 

'purported order', 89 or the statutory authority has not acted in 
conformity with the fundamental principles of natural justice, 40 
or the decision is based ^^^"^lio^evidei^ie^^ etc. as in these cases, 
the order cannot be said to be~ 7 S3?nSr2tet' 41 and the jurisdiction 
of the civil court is not ousted, 

In Radha Kishan v. Ludhiana Municipality, the Supreme 
Court observed : 

Under Section 9 of the Code of Civil Procedure the 

Court shall have jurisdiction to try all suits of civil nature 

38. See also S. 27 of the Displaced Persons (Compensation and Rehabilita- 
tion) Act, 1954, S. 78 of the Estate Duty Act, 1953; S. 293 of the Income 
Tax Act, 1961, Shyam Lai v. Smt. Kmum Dhavan, AIR 1979 SC 1247. 

39. Union of India v. Tarachand Gupta, (1971) 1 SCC 486 : AIR 1971 SC 1558. 

40. Srinivasa v. State of A.P., (1969) 3 SCC 7i 1 : AIR 1971 SC 71 ; Dhulabhai's 
case (infra) ; Dhrangadhra Chemicals (infra). 

41. DhulabhaVs case (infra) ; Tarachand Gupta's case (supra) ; Premier Automobiles 
v. Kamalikar, (1976) 1 SCC 496; Srinivasa 9 s case (supra). 

i2. AIR 1963 SC 1547 : (1964) 2 SCR 273. 


excepting suits of which cognizance is either expressly 
or impliedly barred. A statute, therefore, expressly or by 
necessary implication can bar the jurisdiction of civil courts 
in respect of a particular matter. The mere conferment of 
special jurisdiction on a tribunal in respect of the said matter 
does not in itself exclude the jurisdiction of civil courts. The 
statute may specifically provide for ousting the jurisdiction 
of civil courts ; even if there was no such specific exclusion, 
if it creates a liability not existing before and gives a special 
and particular remedy for the aggrieved party, the remedy 
provided by it must be followed. The same principle would 
apply if the statute had provided for the particular forum in 
which the remedy could be had. Even in such cases, the civil 
court's jurisdiction is not completely ousted. A suit in a civil 
court will always lie to question the order of a tribunal created by 
statute, even if its order is, expressly or by necessary implication, 
made final, if the said tribunal abuses its power or does not act under 
the Act but in violation of its provisions.** (emphasis supplied) 

Suffice it to say that in the classic decision of Dhulabhai v. 
after discussing the case law exhaustively, Hidayatullah, 

G. J. summarised the following principles in this regard : 

(1) Where the statute gives a finality to the orders of the 
special tribunals the civil court's jurisdiction must be 
held to be excluded if there is adequate remedy to do 
what the civil courtsjw^^ Such 
provision, however, does not exclude those cases where 
the provisions of the particular Act have not been com- 
plied with or the statutory tribunal has not acted in 
conformity with the fundamental principles of judicial 
procedure. __ 

(2) Where there is an express bar of jurisdiction of the 
court, an examination of ' tffe"scheme~bf tKe^particular 

Act to find the ad^quacj^^ reme- 

dies provided may be ^elevant) but is /fetdecisiveXto sus- 

Where there is no express exclusion the examination of the 
remedies and the scheme of the particular Act to find 
out the intendment becomesnecessary and the result of 
the inquiry m^Jbe^ecisiye^Tln the latterTase~itls 

43. AIR 1963 SC 1547 at p, 1551. 

44. AIR 1969 SC 78 (89-90) : (1968) 3 SCR 662 (682-84). 


necessary to see if the statute creates a special rightor 
a liabilitj^jtnd provides for the determination of the 
right or liability^and further lays down that all questions 
about the said right and liability shall be determined by 
the tribunals so constituted, and whether remediesnor- 
mally associated with actions in civil courts are prescrib- 
ed by the said statute or not. 

(3) Challenge to the provisions of the particular Act as 
ultra vires cannot be brought before tribunals constitu- 
ted under that Act, Even the High Court cannot go 
into that question on a revision or reference from the 
decision of the tribunals. 

(4) When a provision is already declare^ unconstitutional 
or the constitutionality of any provision is to be chal- 
Jenged, a suit is openr A writ of certiorari may include 
aTdirection for refund if the claim is clearly within the 
time prescribed by the Limitation Act, but it is not j 
compulsory remedy^ toj* epface _ 

(5) Where the particular Act contains no machinery for 
refund of tax collected in excess of constitutional limits 
or is illegally collected a suit lies. 

(6) Questions of the correctness of the assessmem_apari 
from its constitutionality are for the decision of the 
authorities and a civil suit does not lie if the orders of 

the authorities jure declared to be final or there is an ex- 
press prohibition in^the particular Act. In either case 
the scheme of the particular Act must be examined be- 
cause it is a relevant enquiry. 

(7) An exclusion of the jurisdiction of the civil court is not 
readily to be inferred unless the conditions above set 
down apply. 45 


As discussed above, no appeal, revision or reference against 
the decision of an administrative tribunal is maintainable if the 
said right is not conferred by the relevant statute. Provisions can 

45. See also Premier Automobiles (supra). 


also be made for ouster of jurisdiction of civil courts ; and in all 
these cases the decisions rendered by the tribunal will be treated 
as 'final 9 . But this statutory finality will not affect the jurisdiction 
of the High Courts under Articles 226 and 227 46 and of the Supreme 
Court under Articles 32 and 136 of the Constitution of India. The 
power of judicial review of High Courts and the Supreme Court 
is recognised by the Constitution and the same cannot be taken 
away by any statute ; and if the tribunal has acted without juris- 
diction, 47 or has failed to exercise jurisdiction vested in it, 48 or if 
the order passed by the tribunal is arbitrary, perverse 49 or mala 
fide, 50 or it has not observed the principles of natural justice, 51 or 
there is an error apparent on the face of the record, 52 or the order 
is ultra vires the Act, 53 or there is no evidence in support of the 
order, 54 or the order is based on irrelevant considerations, 55 or 
where the findings recorded are conflicting and inconsistent, 56 or 
grave injustice is perpetuated by the order passed by the tribunal 57 
or the order is such that no reasonable man would have made it, 58 
the same can be set aside by the High Court or by the Supreme 
Court. It is appropriate at this stage to quote the following ob* 
servations of Lord Denning, J. 59 : 

If tribunals were to be at liberty to exceed their jurisdiction 

46. Prior to the Constitution (42nd Amendment) Act, 1976. 

47. Express Newspapers v. Workers, AIR 1963 SC 569; J. K. Chaudhary v. Dutta 
Gupta, AIR 1958 SC 722 ; Venkataraman v. State of Madras, AIR 1966 SC 
1089 ; /. S. Chettu v. State of A. P., AIR 1964 SC 322. 

48. Maha Dayal v. /.T.O. (supra) ; Police Commissioner v. Gordhandas (supra). 

49. Dhiraj Lai v. I.T.C. AIR 1955 SC 271 ; D. Macropollo & Co. v. Employee^ 
AIR 1958 SC 1012 ; Dhrangadhra Chemicals v. State, AIR 1957 SC 264; 
C.f.T. v. Radha Kishan, (1975) 1 SCC 693, (95-96): AIR 1975 SC 893 

50. Ritz Theatre v. Workmen, AIR 1963 SC295; P. T. Services v. Stat* 
Industrial Court, AIR 1963 SC 114: (1963) 3 SCR 650. 

51. Sangram Singh v. Ele. Trib., AIR 1955 SC 425, Andhra Scientific Co. v. 
Shesagiri, AIR 1967 SC 408: (1961) 2 LLJ 117. 

52. Union of India v. H. C. Goel, AIR 1964 SC 364 : (1964) 4 SCR 718. 

53. P. T. Services (supra). 

54. Ibid. Dhrangadhra Chemicals (supra). 

55. Dhiraj Lai's case (supra). 

56. P. S. Mills v. Mazdoor Union, AIR 1957 SC 95 : (1956) SCR 872. 

57. D. C. Mills v. C.I.T., AIR 1955 SC 65; Statesman Ltd. v. Workmen, 
(1976) 2 SCC 223 : AIR 1976 SC 758. 

58. C.I.T. v. Radha Kishan, (supra). 

59. R. v. Medical Appeal Tribunal, ex parte Gilmore, (1957) 1 QB 574 (586). 


without any check by the courts the rule of law would be an 

At the same time, it mutt be borne in mind that the powers 
of the High Courts and the Supreme Court under the Constitution 
of India are extremely limited and they will be reluctant to inter- 
fere with or disturb the decisions of specially constituted authori- 
ties and tribunals under a statute on the ground that the evidence 
was inadequate or insufficient, 60 or that detailed reasons were not 
given. 61 The Supreme Court and High Courts are not courts of 
appeal and revision over the decisions of administrative tribu- 
nals. 62 


There is no inherent power of reviewjwith_any authority and 
the said power can be exercised only if it is conferred by the rele- 
vant statute. As a general rule, an administrative tribunaT~lcMEF- 

qfficio (ceases to have control over the matter) as 
soon as it makes an order and thereafter cannot review its decision 
unless the said power is conferred on it by a statute, 63 and the 
decision must stand unless and until it is jset aside by the appel- 
late or re visional authority or by the competent court. 84 ^- 

This, however, does not rnpari^jliat^ ijT_aJkaencp of.any-sia- 
tutory provision, the adniinistrative tribunal is powerless. In fact 
the admrnTsTraTive tribunal possesses those powers which are in- 
herent in every judicial tribunal. Thus, it can reopen ex parte 
proc^e3Kiigs7^f~ttie13ecIsi6n is arrived at without issuing notice to 
the party affected or on the ground that it had committed a mis- 
take in overlooking the change in the law which had taken place 
before passing the order or to prevent miscarriage of justice or to 
correct grave and palpable errors committed by it or what the 
principles of natural justice required it to do. 65 

60. State of A. P. v. Rao (supra). 

61. Sri Ram Vilas Service v. Chandrasekaran, AIR 1965 SC 107: (1964) 5 SCR 

62. Bombay Union v. State, AIR 1964 SC 1617 ; Hindustan Tin Works v. Em- 
ployees, AIR 1979 SC 75; Prcm Kakar v. State, (1976) 3 SCC 433 : AIR 

1976 SC 1474. See also Lcct. IX (infra). 

63. Paul Narshi v. Pradumansinhji, AIR 1970 SC 1273 ; Mehar Singh v. JV. T. 
Das, ^1973) 3 SCC 731 : AIR 1972 SC 2533. 

64. Pradumansinhji 1 s case (supra). 

65. 'Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 (1911). 



The doctrine of res judicata is embodied in Section 1 1 of the 
Code of Civil Procedure, 1908. It means that if an issue had 
been made the subject-matter of the previous suit and had been 
raised, tried and decided by a competent court having jurisdiction 
to try the suit the same issue cannot thereafter be raised, tried or 
decided by any court between the same parties in a subsequent 

Though Section 11 of the Code speaks about civil suits only, 
thejjeneral principle underlying the dpctrine_pf us judicata^aQjAies 
eveji to administraUy^^^M^icaiiQ^' Thus, an award pronounced 

by the IndustriaJ^nbujiaLoperates i as resj^dicatalaeiween the same 
parties and the Payment of Wages Authority has no jurisdiction to 
entertain the said question again, 66 or if in an earlier case, the 
Labour Court had decided that A was not a 'workman 3 within the 
meaning of the Industrial Disputes Act, 1947, it operates as res 
judicata in subsequent proceedings. 67 In Pandurang's case (supra), 
the Supreme Court observed : 

The doctrine of res judicata is a wholesome one which is 
applicable not merely to matters governed by the provisions 
of the Code of Civil Procedure but to all litigations. It pro- 
ceeds on the principle that there should be no unnecessary 
litigation and whatever claims and defences are open to parties 
should all be put forward at the same time provided no con- 
fusion is likely to arise by so putting forward all such 
claims. 68 

About a year later, 69 the Supreme Court entertained 'doubt' 
about the extension of the sophisticated doctrine of constructive 
res judicata to industrial law. In /. G. N. Rly. v. Workmen ', the 
Supreme Court held that the principle of res judicata should be ap- 
plied with caution in industrial adjudication. 

66. Bombay Gas Co. v. Shridhar, AIR 1961 SC 1196 : (1961) 2 LLJ 629. 

67. Bombay Gas Co. v. Jagannath Pandurang, (1975) 4 SCC 690. 

68. Ibid, at pp. 695-96 (SCC). See also Devilalv.S. T. 0., AIR 1965 SC 
1 150 ; Daryao v. State of U. P., AIR 1961 SC 1457 : (1962) 1 SCR 574. 

69. Mumbai Kamgar Sabha v. Abdulbhai, (1976)3 SCC 832 : AIR 1976 SC 

70. AIR 1960 SC 1286: (1960) 1 LLJ 561. 


It is submitted that the view taken by Gajendragadkar, J. 
(as he then was) in case of Trichinopoly Mills v. Workers' Union 11 
is correct. In that case, His Lordship observed : 

It is not denied that the principles of res judicata 
cannot be strictly involved in the decisions of such points 
though it is equally true that industrial tribunals would not 
be justified in changing the amounts of rehabilitation from 
year to year without sufficient cause. 72 


Many complaints had been made by people against the 
working of administrative tribunals to the Franks Committee : 73 

(1) Sometimes, there is no appeal against the tribunal's 
decision, e. g. Rent Tribunal. Tremendous power, 
which can ruin a person's life, has been put into the 
hands of three men. Yet there is no higher court in 
which their decisions can be rested. 

(2) The three on the bench of the tribunal need have no 
proper legal qualifications. A court of no appeal has 
been put into the hands of men who are generally 
neither qualified lawyers, magistrates nor judges. 

(3) There is no evidence on oath, and therefore there can 
be no proper cross-examination as in a court of law. 
Statements are made on both sides, but the time-honour- 
ed method of getting to the truth cannot be used. 

(4) Procedure is as the tribunal shall determine. No rules 
have been laid down as to the procedure at a tribunal 
hearing. Witnesses may be heard or not heard at 
their pleasure. 

Though, the aforesaid complaints are against the Rent 
Tribunals, they were present in all tribunals. 


In 1955, a committee was appointed by the Lord Chancellor 

71. AIR 1960 SC 1003 : (1960) 2 LIJ 46. 

72. Ibid, at p. 1004 (AIR) : For Income Tax matters see Maharana Mill v. 
/.T.O., AIR 1959 SC 881; Visheshwara ~ Singh v. /.T.C., AIR 1961 SC 
1062 ; Udayan Chinubhai v. CIT, AIR 1967 SC 762 : (1967) 1 SCR 913. 

73. Wade : Administrative Law, (1977), pp. 754-55. 


onder the Chairmanship of Sir Oliver Frank to consider and make 
< eex>mniendadQna ::::= Qn the constit^Jeft^ndworking of administra- 
tive tribunals in England. The Gommlttee'submitted its 
inH)57aiid macte the ~~ 

Chairmen of tribunals should be appointed and remov- 
ed by the Lord Chancellor ; _ members should be 
appointed by the Council and^ removed by the Lorcl 
\ Chancellor^ ~~~ ~~ " """ 

(2i Chairmen should ordinarily have legal qualifications 
and always in the case of appellate tribunals. 

{S) Remuneration for service on tribunals should be review- 
* \ ed by the Council on Tribunals. 

'[^jr Procedure for each tribunal^ based on common prin- 
\iples but suited to its needs, should be formulated by 
/"the Council. 

\5) The citizen should be helped to know in good time 
the case he will have to meet. 

((^Hearings should be in public, except only in cases 
involving (i) public security, () intimate personal 
or financial circumstances, or (m) professional reputa- 
tion, where there is a preliminary investigation. 

) Legal representation should always be allowed, save 
only in most exceptional circumstances. In the case 
of national insurance tribunals the Committee were 
content to make legal representation subject to the 
chairman's consent. 

^S) Tribunals should have power to take evidence on oath, 
to subpoena witnesses, and to award costs. Parties 
should be free to question witnesses directly. 

sions should be reasoned, as full as possible, and 
made available to the parties in writing. Final appel- 
late tribunals should publish arid circulate selected 


74. Wade: Administrative Law, (1977), pp. 757-58. 


There should be a right of appeal on fact, law and 
merits to an appellate tribunal, except where the lower 
tribunal is exceptionally strong. 

(Jlf There should also be an appeal on a point of law to 
the courts; and judicial control by the remedies of 
certiorari, prohibition and mandamus should nqyer he 
^"barred by statute. 

(12) The Council should advise, and report quickly^on the 
application of all these principles to the various tri- 
bunals, and should advise on any proposal to establish 
a new tribunal. 

Griffith and Street 75 have included : 

(13) Adjudications of law and fact in which no policy 
question is involved should not be carried out by 
Ministers themselves or by Civil Servants in the Minis- 
ter's name, 

(14) The personnel of tribunals deciding issues of law or 
fact or applying standards should be independent of 
the departments with which their functions are 

(15) The personnel should enjoy security of tenure and 
adequacy of remuneration essential to the proper 
discharge of their duties. 

(16) At least one member of the tribunal should be a lawyer 
if the questions of fact and law arise ; one member may 
have expert knowledge where such knowledge would be 
helpful to guide discretion and apply standards. 

(17) An appellate system should be provided so that those 
aggrieved by an adjudication may go to higher tri- 
bunal and ultimately matters of law should reach the 

75. Principles of Administrate* Law : (1963), p. 193. See also Jain and Jain : 
Principles of Administrative Law, (1973), p. 171. 

Lecture VIII 


We wilt not make justices, constables, sheriffs or bailiffs who 
do not know the law of the land and mean to observe it well. 


Law has reached its finest moments when it has freed man from 
the unlimited discretion of some ruler . . . . Where discretion is absolute 
man has always suffered. 


Discretion is a science or understanding to discern between 
falsity and truth, between right and wrong, between shadows and 
substance, between equity and colourable glosses and pretences, and not 
to do according to their wills and private affections. 


1. Introduction 

2. Administrative discretion : Definition 

3. Discretionary power and judicial review 

(A) Failure to exercise discretion 

(i) Sub-delegation 
() Imposing fetters on discretion by self-imposed rules of 


(in} Acting under dictation 
(tz>) Non-application of mind 

(B) Excess or abuse of discretion 

(t) Exceeding jurisdiction 

() Irrelevant considerations 
(Hi) Leaving out relevant considerations 
(iv) Mixed considerations 

(a) Conclusions based on subjective satisfaction 

(b) Conclusions based on objective facts 
(v) Mala fide 

(vi) Improper purpose : Collateral purpose 
(vii) Colourable exercise of power 
(viii) Disregard of the principles of natural justice 

(*) Unreasonableness 

(C) Infringement of fundamental rights 

r 177 ] 



As discussed in the previous lectures, the traditional theory of 
' laissez faire* has been given up by the state and the old 'police 
state' has now become a 'welfare state'. Because of this philo- 
sophy governmental functions have increased. The administrative 
authorities have acquired vast discretionary powers and generally, 
exercise of thosepowers jire left to the subjective satisfaction of 
the administration _without laving down the statutory guidelines or 
imposing conditions onjt.. The admin is tjrcyioji_jidimmsters law 
enacted by the legislature and thus performs executive functions ; 
it also enacts legislation when the legislative powers are delegated 
to it by the legislature and it also interprets law through adminis- 
trative tribunals. Thus, practicallyj^erj Js_c^nc^njration of all 
powers in the hands of the administration legislative, executive 
and judicial. 


The best definition of 'administrative discretion' is given by 
Professor Freund 1 in the following words : 

"" When weT speak of administrative discretion, we mean 

that a determination may be reached, in part at least, upon 
the basis of consideration not ^ntirely __ susceptible, of proof or 
disproof. . . It may be practically convenient 10 say that discre- 
tTorTTnciudes the case in which the ascertainmentjrfjacJLis. 
legitimately left to administrative determination. 

Thus, in short, here the decision is taken by the authority 
not only on the basis of the evidence but in accordance with jjolicy or 
exediency and in exercise of discretionary powers conferred on 
that authority. * ~ 


Discretionary powers co n f egd_og _t he adni inist ration a re of 
different types. It may perform simple ministerial functions like 
maintenance of births and deaths register. It may exercise powers 
which seriously affect the rights of an individual ; e.g. acquisition 
of property, regulation of" trade, industry or business, investigation, 
seizure, confiscation and destruction of property, detention of a 

1. Administrative Power* over Persons and Property, (1928), p. 71. 


person on subjective satisfication of an executive authority and the 

As a general rule, it is accepted that courts have no power to 
interfere jvith the actions^ taken by administrative authorities in 
exercise of discretionary p3wjr_s. "^fT^Smafl'v. Moss, the Supreme 
tlourt ofthe United States observed : " ~ ............ -~ 

Into that field (of administrative discretion) the courts 
may not enter. 

Lord Halsbury 2 also expressed the same view and observed : 

Where the Legislature has confided the power to a 
particular body, with a discretion how it is to be used, it is 
beyond the power of any court to contest that discretion. 

In India also, the same principle is accepted and in a number 
of cases our Supreme Court has held that courts have no power 
to interfere with the orders passed by the administrative autho- 
rities'in exercise of discretionary powers(;jjV 

This doej^not^Jffiwaxcjy- mean thjLLJitej^4%~-4^Oft^^ 
the discretion of the administration. As discussed above, the 
adrmnSiration possesses vast discretionary powers and incomplete, 
and absolute freedom is given to it, it Jgpl Ij&d ^.rbitrar^ 
exercise of powpr^ The wider the discretion the greater is the 
possibility of its abuse. As it is rightly said, 'cver 

to rorriipt anjfl absolute power tends to_JlQjTugt 

lutely'. There must be control over discretionary powers of 

jr*""" * ' i fc n ' " "" - ' ** ....... - -* .......... 

the administration so that there will be_a_ ^go^rnment of 
laws and not of men/. It is not only the power but the~^9Tuty 
of the courts to ee frlat discretionary powers conferred on the 
administration may not be abused and the administration should^ 
exercise them properly, responsibly and with a view to doing 
what is best in the public interest. 'It is from t h is p r osu mption 
that trie courts take their warranj: to impose jeg^l founds on even 
the most extensive ^discretion/ 4 { VVide discretion must be in 
all administrative activity but it should be discretion defined in 

Westminster Corp. v. London & North Western Rly. Co., (1905) AC 426 (427) 
3j Gopalan v. State of Madras, AIR 1950 SO 27; Bhimsen v. State of Punjab, 
AIR 19M S(J 481 ; Lakhanpal v. Union of India, AIR 1967 SC908; Lohia 
v. State of Bihar, AIR 1966 SC 740: (1956) 1 SCR 709. 
4. Wade : Administrative Law, (1977), p. 337. 


terms which canjbe^ measured by^ l^gaj_st^ndards jest^cases of 
'manifest injustice go unheeded and unpunished/ 5 As early~as~ 
in 1647,* it was laid down by the King's Bench that 'where- 
soever a commissioner or other person hath power given to do a 
thing at his discretion, it is to be understood of sound discre- 
tion, and according to law, and that this Court hath power to re- 
dres s things otherwise done by them'. In Sharp v. Wakefald 1 ', Lord 
Halsbury rightly observed : ' 

. .. '[Discretion' means when it is said that something 
is to be jone ' within ^jhe discretioi^ of the authorities that 
something ^^^"""^"^ argflyffinfljtn^^fi^^ and 

ju^tige, not acc^rcllrig to private ogijuon. . accorHm^"TC lajv 
and nc^ humour, it is to be, not Arbitrary, vague, and 
fancTfo 17^ uF legal and regular. And it must be exercised 
wiTHm the limit^ to which an h5hest mar! competent to the 
discharge of his office ought to confine himself . ... r 

Thus, in almost all the democratic countries Jt is accepted 
that discretion conferred on the administration is not unfetter- 
ed, uncontrolled or non-reviewable by the courts. To keep 
the administration within its bounds, the courts have evolved 
certain principles and imposed some conditions and formulated 
certain tests and taking recourse to these principles, they effec- 
tively control the abuse or arbitrary exercise of discretionary 
power by the administration. In_jndia, the courts will interfere 
with the discretionary powers exercised by the administration in 
the following circumstances : 

(A) Failure to exerci^discretion ; 

(B) Excess or abuse oj discretion ; and 

(C) Infringement ofjundamental rights. 

Let us consider each ground in extenso : 

(A) Failure to exercise discretion 

The main object of conferring discretionary power 011 an 
administrative authority is that the authority itself must exercise 
the said power. If therejs _ failure to_. exercise discretion on the 
part of that authority the action will be bad. Such type of 

5. Wade : Courts and Administrative Process, (1949) 63 LQ.R 173. 

6. Estwick v. City of London, (1647) Style 42. 

7. (1891) AC 173 (179). 


flaw may arise in the following circumstances : 

Imposing fetters on discretion_by sejf^rnposejd rules of 
policy ; *~ 

Acting under dictation ; and 
S (iv) Non-application of mind. 

(i) Sub-delegation 

de Smith 8 says, *a discretionary power must, in general, be 
exercised only by the authority to which it has been committed. 
It is a well-known principle of law that when a power has been 
confided to a person in circumstances indicating that trust 
is being placed in his individual judgment arid.., discretion, he 
must exercise that power (peraonally^unless he has been expressly 
empowered to <JeIegate_It_j:o^ As stated above the 

very object of conferring a power on a particular administrative 
authority is that the power must be exercised by that authority 
and cannot be sub-delegated to any other authority or official. 
'Delegation may be the result of honest^misapprehension by the 
authority concerned of the legal position. It sometimes arises 
ouj^of a desire to_expedite official business^ But still it will ba 
invalid if it is not legally permitted/ 9 ^ ^ 

Thus, in Allingham v^Mg^ and Ganpati 

Sinhji v. State ofAjmer 11 , the sub-delegation of power was held 

to be bad. 


But in Pradyat Kumar v. Chief Justice of^Calcutt^., the enquiry 
against the Registrar of the High Court was made by a puisne 
Tudge of the Court. After considering^ the report and giving 
show-cause notice, he was dismissed by the Chief Justice,. The 
Supreme Court held that it was not a case of delegation of 
power by the Chief Justice but merelj^ofjejryjlo^^ 
officer to Bassist the Chief Justice. More recently, the same 

8. Judicial Review of Administrative Action, (1973), p. 263. 

9. Markose : Judicial Control of Administrative Action in India, (1956), p. 395. 

10. (1948) 1 AH ER 780: See p. 79 (supra). See also Barnard v. N. D. L. 
Board, (1953) 2 QB 81 ; Vini v. JV. D. L. Board, (1957) AC 418. 

11. AIR 1955 SC 188: (1955) 1 SCR 1065. See p. 80 (supra). 

12. AIR 1956 SC 285 : (1955) 2 SCR 1331. 


view has been taken by the Supreme Court in State of U. P. v. 
B. D. P. Tripatki. * 

() Imposing fetters on discretion by self-imposed rules of policy 

An authority_entrusted with discretionary power must exercise 
the same after considering; individual cases. Instead of doing? 
that if the authority imposes fetters on its discretion by adopting^ 
fixed rules of policyjo bejapplied in all cases coming before it, 
there is faiiug_tQ_jxer cise discretion on the par t^of that authority.' 
What is expected of the authority is that it must consider the 
facts of each case, applyjts^iinji and decide the_same_._ If any 
generaT>rule is pronounced, which will be applied to all cases, 
thenTis no question of considering the facts of an individual 
case at all and exercising discretion by the authority. 

Gellv. TejaNoora u r 

Under the Bombay Police Act, 1863, the Commissioner of 
Police had discretion to refuse to grant a licence for any land 
conveyance 'which he may consider to be insufficiently found or 
otherwise unfit for the conveyance of the public', Instead of 
applying this discretionary power to individual cases, he issued a 
general order that any victoria presented for licence must be of 
a particular pattern. The High Court of Bombay held the 
order bad as the Commissioner had imposed fetters on his 
discretion by self-imposcdjrul^ 

in respect oreach individual carriage whether it was fit for convey- 
ance of tEeTpublic or not, f 

Keshavan Bhaskaran v. State of Kerala 

The relevant rule provided that no school leaving certificate 
would be granted to any person unless he had completed fifteen 
years of age. The Director was, however, empowered to grant 
exemption from this rule in deserving cases under certain 
circumstances. But in fact, the Director had made an invariable 

13. (1978) 2 SCC 102, Sec also State of Bombay v. Shivbdak, AIR 1965 
SC661: (1965) 1 SCR 211. 

14. (1907) 27ILRBom. 307. 

15. AIR 1961 Kcr. 23. See also Registrar, T. M. v. Ashokchandra, AIR 1955 SC 
558: (1955) 2 SCR 252. 


rule of not granting exemption unless the deficiency in age was 
less than two years. The Court held that the rule of policy 
was contrary to law. 

In Tinker v. Wandsworth Board of W0rA;s 16 , a sanitary authority 
laid down a general ruleThat all cesspits and privies in its area 
should be replaced by water-closets and did not consider each 
case on merits. The Court of Appeal held the action bad. In 
R. v. Metropolitan Police Commissioner 11 ) a chief constable adopted 
a rigid rule not to institute any prosecution at all for an 
anti-social class of criminal offence. The action was held to be 

This does not, however, mean that no principle_an be laid 
down or policy ador>tt. The bni'^requiremeiiL^^ 
when^ a _8^ n j^rj^* c y adq^tgjj^^bu. case^must bejwns'ffiS 
ed on its own ^merits. As Lord Reid 18 rightly states, a minister 
having a discretion, may formulate a policy or make a limiting 
rule as to the future exercise of his discretion, if he thinks 
that good administration requires it, 'provided the authority is always 
willing to listen to any one with something new to say', (emphasis supplied) 
The administrative authority exercising discretion must not 'shut its 
ears to an application'. It is submitted that the test is correctly 
laid down in Stringer v. Minister of Housing) wherein Lord 
Cooke, J observed : 

. , . [A] Minister charged with the duty of making indi- 
vidual administrative decisions in a fair and impartial manner 
may nevertheless have a general policy in regard to matters 
which are relevant to those decisions, provided that the 
existence of that general policy does not preclude him from fairly judging 
all the issues which are relevant to each individual case as it comes up for 
decision, (emphasis supplied) 

(Hi) Acting under dictation 

Sometimes, an authority entrusted with a power does 
not exercise that power but acts under the dictation of a 
superior authority. Here, the authority invested with the power 

16. (1858) 27 LJ Ch 342. 

17. (1968) 2 QB 118. 

18. British Oxygen Co. Ltd. v. Minister of Technology, (1970) 3 WLR 488 (495). 

19. (1970) 1 WLR 1281 (1298). 


purports to act on its own but 'in substance' the power is exercised 
by another. The authority concerned does not apply its mind 
and take action on its own judgment, even though it was not 
so intended by the statute. In law, this amounts to non-exercise 
of power by the authority and the action is bad, 

Commissioner o 

Under the Bombay Police Act, 1902, the Commissioner of 
Police granted licence for the construction of a cinema theatre. 
But later on, he cancelled it at the direction of the State Govern- 
ment. The Supreme Court set aside the order of cancellation of 
licence as the Commissioner had acted merely as the agent of the 

Orient Paper Mills v. Union of India 21 

Under the relevant statute, the Deputy Superintendent was 
empowered to levy excise. Instead of deciding it independently, 
the Deputy Superintendent ordered levy of excise in accordance 
with the directions issued by the Collector. The Supreme Court 
set aside the order passed by the Deputy Superintendent. 

Rambharosa \ Singh v. State of Bihar** r 

The relevant rules empowered the ^District Magistrate to 
give public ferries on lease subject to the direction of the Com- 
missioner. Instead of the Commissioner, the Government gave 
certain directions, The District Magistrate acted in accordance with 
those directions. The High Court set aside the order passed by the 
District Magistrate. 

There Js however a distinction^ between seeking an advice or 
assistance on the one hand andjict ing underdJctatlon on the other 
hancT XdviceT~or assistance may be aken and Fhen discre^ 
tion may be exercised by the authority concerned ^genuiaely 

'mechanically acting__Qnthe advice. For 

~~~~ ' * 

20. AIR 1952 SO 16. See also State of Punjab v. Sharma, AIR 1966 SC 1081 ; 
Ellis v. Dubowski, (1921) 3 KB 621 ; Simms Motor Units v. Minister of Labour, 
(1946) 2 All ER 201. 

21. (1970) 3 SCC 76: AIR 1970 SC 1498. 

22. AIR 1953 Pat 370. Sec also Orient Paper Mills v. Union of India, AIR 1969 
'SC 48; Purtabpore Co. Ltd. v. Cane Commr. of Bihar, (1969) 1 SCC 508. 


instance, a licensing authority may take into account the general 
policy of the government in granting licences, provide it decides each 
case on its own merits. In the GorrfAanrfgLCMgJsujiral, the Supreme 
Court observed that the Commissioner was 'entitled to take into 
consideration the advice tendered to him by a public body set 
up for this express purpose, and he was entitled in the bona fide 
exercise of his discretion to accept that advice and act upon it 
even though, he would have acted differently if this important 
factor had not been present in his mind when he reached a 
decision \ 23 

(iv) Non-application of mind 

When a discretionary power is conferred on an authority, 
the said authority must exercise that power after^pplyingjts 
mind to the facts and jcircumstances of thft cfrseJn~band. If this 
condition is rioTsaUsfied, there is clear non-application of mind 
on the part of the authority concerned. The authority might be 
acting mechanically, without due care and caution or wTtHouTg 
sense ol^resonsibnit^MFlIije^ Here also, 

there is failure to exercise discretion and the action is bad. 

Emptrorv. Sibnath Bw&ii* 4 

In this case, the order of preventive detention was quashed 
as it had been issued in a routine manner on the recommendation 
of police authorities and the Home Secretary himself had not applied 
his mind and satisfied himself that the impugned order was called 

Ja&annath v. State of Qyj&g 25 

In the order of detention six grounds were verbatim repro- 
duced from the relevant section of the statute. The Home 
Minister filed the affidavit in support of the order. In that 
affidavit, he has stated that his personal satisfaction to detain the 
petitioner was based on two grounds. The Supreme Court held 
that the detaining authority must be satisfied about each of the 

23. Supra, at p. 18. Sec also Union of India v. Roy, AIR 1968 SC 850. 

24. AIR 1945 PC 156. 


grounds mentioned in the order. Since it was not done, as in the 
affidavit it was mentioned that the order was based only on two 
grounds and also from the fact that in the impugned order in 
which various grounds were mentioned, instead of using the 
conjunctive "and" the disjunctive "or" had been used, there was 
clear non-application of mind by the Home Minister and the 
order was liable to be quashed. 

Barium Chemicals Ltd. v. Company Law^Board^ 

In this well-known case, an order of investigation against the 
petitioner company was passed by the Central Government. 
Under the Companies Act, 1956, the Government was empower- 
ed to issue such order if, * there are circumstances suggesting fraud 
on the part of the management'. It was held by the Supreme 
Court that it was necessary for the Central Government to sfate 
the circumstances which TecT to the impugned action so that the 
same could Be^exammeJTjy the Court. Shelat, J. observed : 

""Ft Js~hard '''t6'''^ntempiate"~that the legislature could 
nave left to the suljjecdve^rocess_both the formation pf 
opinion and also tHe_existence orcn^iimstances^on which i^ is 
"to iSeTounded . It is "also not reasonaEIelo say that the clause 
permittedTTie Authority to say that it has formed the opinion 
on circumstances which in its opinion exist and which in 
its opinion suggest aTrintent to defraud or a fraudulent or 
unlawful purpose. 27 ~ ~~ 

Hidayatullah, J. (as he then was) also took the same view and 
observed : 

No doubt the formation of opinion is subjective but the 
existence of ciixumstam^s~j^ the InTerence^as the 

sine qualJ^nToT^ctlo^must bT~HemQnstrable v If the action 
is^uestioned on the ground that no circumstances leading 
to an inference of the kind contemplated by the section 
exists, the action might be exposed to inference unless the 
existence of the circumstances is made out. 28 

Ananta Mukhi v. State of W. B. 

In this case, the order of detention was passed against the 

26. AIR 1967 SC 295 : 1966 Supp SCR 311. 

27. Ibid, at p. 325 (AIR). 

28. Ibid, at p. 309. See also Rohtas Industries (infra) Barium Chemicals v. Rana, 
, (1972) 1 SCO 240 : AIR 1972 SC 591 ; Ashadeii v. K. Shivraj (infra). 

29. (1972) 1 SCC 580: AIR 1972 SC 1256. 


petitioner 'to prevent him from acting in any manner prejudicial 
to the security of State or the maintenance of public order*. 
In spite of the use of the disjunctive 'or 3 in between the two 
grounds, the Supreme Court held the order valid. 

/. r. C. Ltd, v. Labour Court, Patna 

Very recently, the Supreme Court held the order of reference 
passed under the Industrial Disputes Act, 1947 valid even though 
the reference contained both the clauses, viz. the industrial 
dispute 'exists or is apprehended'. The Supreme Court held that 
there was non-application of mind by the government, but the 
reference was not bad on that ground on 'the facts of the case*. 
However, the Court observed that 'care should always be taken to 
avoid a mere copying of the words from the statute 5 . 

(B) Excess or abuse of discretion 

When discretionary power is conferred on an administrative 
authority, it must be exercised according to law. But as Markose 31 
says, 'when the mode of exercising a valid power is improper or 
unreasonable, there is an abuse of the power*. Thus, 'if a new 
and sharp axe presented by Father Washington (the Legislature) 
to young George (the statutory authority) to cut timber from the 
father's compound is tried on the father's favourite apple tree an 
abuse of power is clearly committed*. 

There are several forms of abuse of discretion, e.g. the author- 
ity may exercise its power for a purpose different from the one 
for which the power was conferred or for an improper purpose or 
acts in bad faith, takes into account irrelevant considerations 
and so on. These various forms of abuse of discretion may even 
overlap. Take the classic example of the red-haired teacher, dismiss- 
ed because she had red hair. In one sense, it is unreasonable. In 
another sense, it is taking into account irrelevant or extraneous 
considerations. It is improper exercise of power and might be 
described as being done in bad faith or colourable exercise of 
power. In fact, all these things 'overlap to a very great extent 1 
and 'run into one another'. 32 

30. (1978) 3 SCC 504 : AIR 1978 SC 1428. 

3 1 . Judicial Control . . . (supra) , p. 417. 

32. Per Loid Greene, M. R. in Associated Provincial Picture Houses Ltd. v, 
Wednesbury Corp., (19-18) 1 KB 223 (229). 


Excess or abuse of discretion may be inferred from the 
following circumstances : 

(t) Exceeding jurisdiction ; 
'() Irrelevant considerations ; 
(Hi) Leaving out relevant considerations ; 
(iv) Mixed considerations 

(a) Conclusions based on subjective satisfaction , 

(b) Conclusions based on objective facts ; 
(v) Mala fide ; 

(vi) Improper purpose : Collateral purpose ; 
(vii) Colourable exercise of power ; 
(viii) Disregard of the principles ofjiatural j ustice ; 
(ix) Unreasonableness. 

Let us consider each ground in detail. 

(i) Exceeding jurisdiction 

An administrative authority must exercise the power within 
the limits of the statute and if it exceeds those limits the action 
will be held to be ultra vires. 

For example, if an officer is empowered to grant loan of 
Rs. 10,000 in his discretion for a particular purpose and ii he 
grants a loan of Rs. 20,000 he exceeds the power (jurisdiction) 
and the entire order is ultra vires and void on that ground. 

London County Council v. Attorney General 

In this case, the local authority was empowered to operate 
tramways. The local authority also carried a bus service. An 
injunction against the operation of buses by the Council was duly 

C. E. S. Corporation v. Workers 3 Union . 

If the authority is empowered to award a claim for the 
medical aid of the employees, it cannot grant the said benefit to 
the family members of the employees. 

33. (1902) AC 165, 

34/ AIR 1959 SC 1191 : (1959-60) 16 FJR 182. 


T. K. Chaudhary v. Datta 3 * 

If the relevant regulation empowers the management to 
dismiss a teacher, the power cannot be exercised to dismiss the 

(ii) Irrelevant considerations 

A power conferred on an administrative authority by a 
statute must be exercised on the considerations relevant to the 
purpose for which it is conferred. instead, it the auThortry 
takes"uf!o account wholly irrelevant or extraneous considerations 
the exercise of power by thelmthority wilPbe" ultrTvir^""aTid"tiTB~ 
action bad. 

This may, however, be distinguished from mala fide or 
improper motive inasmuch as, here 'the irrelevant considerations 
dominate not because of any deliberate choice of the authority 
but as a result of the honest rrmtaTceT it 

or scope of its powers'. 38 

Thus, the red-haired teacher was dismissed because she 
had red hair, 37 or because the teacher took an afternoon off in 
poignant circumstances 38 or that the teacher refused to collect 
money for pupils^ meals 39 the action is bad in law. 

Ram Manohar Lohia v . State of Bihar*** __ r 

Under the relevant rules, the authority was empowered to 
detain a person _to prevent subversion of 'public order*. The 
petitioner was detained to prevent him from acting in a manner 
prejudical to the majntenance of 'law and_ordcr j . The Supreme 
Court set aside the order of detention. According to the Court, 
the term 'law and order' was wider than the term 'public order*. 

R^L^Arnrn \r flfofr nf TJ P ^ r 

Under the provisions of the Land Acquisition Act, 1JJ94 the 

35. AIR 1958 SC 722 : (1959) SCR 455. 

36. Markose (supra). 

37. Wednesbury Corp. (supra). 

38. Martin v. Eccles Corp., (1919) 1 Ch. 387. 

39. Price v. Sunder land Corp., (1956) 1 WLR J253. See also Roberts v. Hoophood 

40. AIR 1966 SC 740: (1966) 1 SCR 709. 

41. AIR 1962 SC 764: 1962 Supp 2 SCR 149. 


State Government was authorised to acquire land for a company 
if the Government was satisfied that 'such acquisition is n^HpH 
for the construction of a work and that such work is likely to 
prove ^efu^to^^^^SI^. In this case, the land was acquired 
for a private company for the construction of a factory for 
manufacturing of textile machinery. The Supreme Court, by 
majority, held that even though it was a matter of. subjective 
satisfactioix,of_the GoYernmenV^ince the sanction was given by the 
Government on irrelevant and extraneous^considerations, it was 
invalid. Wanchoo, J. (as he then was) observed: ~ 

The Government cannot both give meaning to the words and 
also say that they are satisfied on theineaning given by them. The 
meaning ha?' to be given by iKe^Court and it is only there- 
after that the Government's satisfaction may not be open 
to challenge if they have carried out the meaning given to the 
relevant words by the Court. 42 (emphasis supplied) 

Hukam Chand v. Union of India** 

Under the relevant rule, the Divisional Engineer was empower- 
ed to disconnect any telephone on tRe occurrence of a ^public 
emergency '. When the petitioner's telephone was disconnected 
on the allegation that it was used for illegal forward trading (satta) 
the Supreme Court held that it was an extraneous consideration 
and arbitrary exercise of power by. the authority. 

(iii) Leaving out relevant considerations 

As discussed above, the administrative authority cannot take 
into account irrelevant or extraneous considerations. Similarly, 
if the authority fails to take into account relevant considerations, 
then also, the exercise of power would be bad. But it is very 
difficult^ to prove that certain relevant factors have not beer? 
taken into consideration by the authority, unless detailed reasons 
irejgiven^in the impugned order itself from which it can be 
nferred. Still, "However, sometimes the relevant considerations 
are prescribed by the statute itself, e. g. "regard shall be had 

*2. AIR 1962 SO 764 at p. 772. Sec also Sta e of Bombay v. Krishnan, AIR 1960 

SC 1223; Binny Lid. v. Workmen, (1972) 3 SCO 806: AIR 1972 SC 1975. 
*3. (1976) 2 SCO "128: AIR 1976 SC 789. See also R. v. Marsham, (1892) 1 
QB 37! ; L. D. Sugar Mills v. Ram Samp : AIR 1957 SC 82 : (1956) SCR 
9l6;Sanmugam v. V. S. K. V. ...ttc. t AIR 1963 SC 1626: (1964) 1 SCR 


to", " must have regard to", etc. Here, the matter so specified 
must be taken into account. 

Rampur Distillery Co. v. Company Law Board** 

The Company Law Board refused to give its approval for 
renewing the managing agency of the company. The reason 
given by the Board for not giving its approval was that the 
Vivian Bose Commission had severely criticized the deal- 
ings of the Managing Director Mr. Dalmia. The Court conceded 
that the past conduct of the directors was a relevant consideration, 
but before taking a final decision, it should take into account 
their present activities also. 

Ashadevi v. K. Shivraj* 5 

An order of detention was passed against the detenu under 
the Conservation of Foreign Exchange and Prevention of 
Smuggling Activities Act, 1974 (Cofeposa Act). The order was 
based on the detenu's confessional statements made before the 
Customs Authorities. But the said confessional statements were 
subsequently retracted by the detenu before the order of deten- 
tion. The Supreme Court held that the question whether the 
earlier statements recorded were voluntary or not was a 'vital 4 
fact which ought to have been " considered b)T the detaining 
authority before passing the order of detention. A?Trwas~1fibt 
done, the order was invalid and illegal. 

(iv) Mixed consideration 

Sometimes, a peculiar situation arises. Here the order is 
not wholly based on extraneous or irrelevant considerations. It is 
based partly on relevant and existent considerations and partlyjzn 
irrelevaHt or non-existent consideration^ There is no uniformity 
in judicial^ pronouncements on this point. It is submitted that 
the proper approach is to consider it in two different situations : 

(a) Conclusions based on subjective satisfaction ; and 

44. (1969) 2 SCO 744, AIR 1970 SC 1789. 

45. (1979) I SCC 222 : AIR 1979 SC 447. See also Sk. Wzamuddin v. State of 
W. B. t (1975) 3 SCC 395 : AIR 1974 SC 2353; Sure*h Mahato v. Dutrici 
Magistrate, (1975) 3 SCC 554: AIR 1975 SC 728. 


(b) Conclusion based on objective facts. 
(a) Conclusion based on subjective satisfaction 

If the matter requires purely subjective satisfaction ; 
e. g. detention matters, a strict view is called for, and if the 
order of detention is based on relevant and Irrelevant considera- 
tions, it has to be quashed. The reason is very simple and obvious. 
IT is ^ery difficult for the court to say as to what extent the 
irrelevant (or non-existent) grounds have operated on the mind 
of the detaining authority and whether it would have passed the 
same order even without tho^__irrelevant or noiT-exTsTelirfflOinnfe> 
In DwarKa^aiVr^State of J. A*. 46 , setting aside the order of the 
detention which was based on relevant and 

th ; Supreme Court observed : 

Where power is vested in a statutory authority to de- 
prive the liberty of a subject on its subjective satisfaction 
with reference to specified matters, if that satisfaction is 
stated to be based on a number of grounds or for a variety 
of reasons, all taken together and if some out of them 
are found to be non-existent or irrelevant, the very 
exercise of that power is bad. That Js^__so_ __because the 
matter being one for subjective sat is tacITon, it mus^be^pro- 
perly based^qn all_ .jhe_reasons L orTjw]^^ 
based. ~~Tf7ome out of them are found to be non-existent or irrelevant , 
the Court cannot predicate what the subjective satisfaction of the 
said authority would have been on the exclusion of those grounds or 
reasons^ (emphasis supplied) " ~~~ 

The same principle is applied by the Supreme Court in a 
number of cases. 48 

But in the Dwarkadas case (supra), the Court further observ- 
ed : 

In applying these principles, however, the Court must 
be satisfied that the vague or irrelevant grounds are such 
as, if excluded, mi&ht reasonably have affecte<[ _ the subjective 
satisfaction of the appropriate authority. It is not merely 
because some ground or~ reason of"a comparativeljLMflessentiql 
nature is defective that such an order based on subjective 

46. AIR 1957 SC 164 : (1956) SCR 948. 

47. Ibid, at p. 168 (AIR). 

48. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; Manu Bhutan 
* v. State of W. B., (1973) 3 SCO 663: AIR 1973 SC 295 ; Pushker v . 

State of W. B. 9 (1969) 1 SCC 10 : AIR 1970 SC 852. 


satisfaction can be held to be invalid. The Court while 
anxious to safeguard the personal liberty of the individual 
will not lightly interfere with such orders. It is in the light 
of these principles that the validity of the impugned order 
has to be judged. 49 (emphasis supplied) 

It is respectfuUy_submitted _ that^^hese _.obieryations __ are 
unwarranted and very wide and do not lay down the correct law, 
They leave the~~c6urts to speculate. If the order is based on 
subjective satisfaction and if it is not permissible for the court (as 
the court itself conceded) 'to substitute the objective standards 
of the courtfor^th^u^etive satisfaction of the statutory authority* 
one fails to see how th^objective standard can be applied? It is 
therefore, submitted that in detention matters, the orders must 
necessarily be quashed TfThey are based onlnixe^c^fsTdeTaiioh s , 

(b) Conclusion based on objective facts 

If the conclusion of the authority is based on objective facts 
and the action is based on relevant and irrelevant considerations 
the court may apply the~oKJeciive standard and^ ^decide the validity 
or otherwise of the impu^ne?Tction^ ^ 

State of Maharashtra v. Babulal ^ 

In this case, the State Government had superseded the 
municipality on two grounds. One of them was held to be 
extraneous by the Court and yet the order was upheld as the 
Court felt 'reasonably certain that the State Government would 
have passed the order on the basis of the second ground alone' 
as in the show- cause notice itself it was mentioned that the 
grounds 'jointly as well as severally' were serious enough to 
warrant action. 

State of Orissa v^Jtidyabhusan 51 _ *""" 

In this case, A was dismissed from service on certain charges. 
The High Court found that some of them were not proved and 
therefore, directed the government to consider the case whether 
on the basis of the remaining charges the punishment of dismissal 

49. Supra, at p. 168 (AIR). 

50. AIR 1967 SO 1353 : (1967) 2 SCR 583. 

51. AIR 1963 SC 779: 1963 Supp 1 SCR 648. 


was called foj\ On appeal, the Supreme Court reversed the 
judgment of the High Court and upheld the order of dismissal. 
According to the Court, if the order could be supported on any 
of the grounds, it was not for ^ the^pjjrtjp_consider whether on 
that ground aionet he punishment of dismissal can be sustained 62 . 

It is submitted that the aforesaid view is correct. The prin- 
ciple has been succinctly laid down by Shelat, J. in era Singh v. 

His Lordship observed : 

The principle that if some of the reasons relied on by 
a Tribunal for its conclusion turn out to be extraneous or 
otherwise unsustainable, its decision would be vitiated, ap- 
plies to cases in which the conclusion is arrived at not OQ 
assessment of ob^j^eTacts or evidence, but on subjective 
satisfaction. The reason is that whereas in cases where the 
decision is based on subjective satisfaction if some of the 
reasons turn out to be irrelevant or invalid, it would be 
impossible for a superior court to find out which of the 
reasons, relevant or irrelevant, valid, or invalid, had brought 
about such satisfaction. But in a case where the conclusion 
is based on objective facts and evidence, such a difficulty 
would not arise. If it is found (hit there was legal evidence 
before the Tribunal; even if some of it was irrelevant, a superior 
court would not interfere if the fading can be sustained on the rest 
of the evidence.** (emphasis supplied) ~ 

Recently, the Supreme Court has reiterated the same 
principle in the case of State of U. P. v. Chandra Mohan Nigarrf*. 

fv) Mala fide 

This phrase has two meanings. In the gopular sense, it 
means dishonesty, fraud or ill-will, but in the legal senseTTThas a 
/ery broad connotation. When the administrative action is taken 
:mt of personal animosity^ ill-will or vengeance, the action will 
necessarily be struck down on trie ground of malice in fact*. 
But even in the absenceofjiialice in fact t th*> action will be ultra 

if it was taken to achieve some purposeuoreignjtoj^statute. 

52. See also Rty. Board v. Niranjan, (1969) 1 SCO 502 : AIR 1969 SC 966; 
Sarwan Singh v. State, (1976) 2 SCO 868: AIR 1976 SC 232. 

53. (1971) 3 SCO 834: AIR 1971 SC 1537. 

54. Ibid, at p. 838 (SCC) ; pp. 1540-41 (AIR). 
5& (1977) 4 SCC 345: AIR 1977 SC 2411. 


In Jaichand v. State of W.Bj** our Supreme Court has defined 
mala fide in the following words : 

. . . [Mjala fide exercise of power only means that the 
statutory power is exercised for the purposes foreign to those 
for which it is in law intended. ^-- ~ " "^ 

In Smt. S.R. Venkataraman v. Union of India* 7 , the Supreme 
Court has defined malice in wide terms and observed : 

Majice__jn its legal sense means malice &udx_aimay be 
assumed from the doing of ajwjrongful act ^tejnj^nally^bu t 
(vvlthoul^ just cause or excuse, or for want o f r easo n a bl e or 
probable caused " ~ ~~~~~ 

Municipal Council of Sydney v. Campbell* 9 ^ 

Under the relevant statute the Council was empowered to 
acquire land for 'carrying out improvements in or remodelling any 
portion of the city*. The Council acquired the disputed land for 
expanding a street. But in fact the object was_to_get the benefit 
of probable increase in^value of the land as a result of proposed 
extension of the highway. No planToF improving or remodelling 
was proposed or considered by the Council. It was held that the 
power was exercised with ulterior object and hence it was ultra 

Pratap Singh v. Stale of Punjab 

In this case, the petitioner was a civil surgeon and he had 
taken leave preparatory to retirement. Initially the leave was 
granted, but subsequently it was revoked. He was placed under 
suspension, a departmental enquiry was instituted against him and 
ultimately, he was removed from service. The petitioner alleged 
that the disciplinary proceedings had been instituted against him 
at the instance of the then Chief Minister to wreak personal 
vengeance on him as he had not yielded to the illegal demands of 
the former. The Supreme Court accepted the contention, held 
the exercise of power to be mala fide and quashed the order. 

56. AIR 1967 SC 487 : 1966 Supp SCR 464. 

57. (1979) 2 SCC 491, 494 :AIR 1979 SC 49. See also Bailey, Cross, Garner : 
Cases and Materials on Adminitsrative Law, (1977) pp. 268-69 ; A. S. Misra : 
The Law of Bias and Mala fides, (1977). 

58. (1925) AC 338. 

59. AIR 1964 SC 72 : (1964) 4 SCR 733. 


C. S. Rowjee v. State of A. P. 60 

IrT~his case, the State Road Transport Corporation had 
framed a scheme for nationalisation of certain transport routes. 
This was done as per the directions of the then Chief Minister. 
It was alleged by the petitioner that the particular routes were 
selected to take vengeance against the private transport operators 
of that area as they were his political opponents. The* Supreme 
Court upheld the contention and quashed the order. 

Burden of proof 

The burden of proving mala fide is on the person making the 
allegations and the burden is 'very heavy'. 61 XJlg*' 6 * s a presump- 
tion in favour of the administration that it always exercises its 
gower bona fide and in good faith. The reason is obvious. 'The 
allegations of mala fide are often more easily made than made out, 
and the very seriousness of such alle^alions^emanSs proof of a high order 
of credibility'.* 2 (emphasis supplied). It is the last refuge of a 
losing litigant. 63 

(vi) Improper purpose ; Collateral purpose 

A statutory power conferred on the authority must be exercis- 
ed for that purpose alone and if it is exercised for a different 
purpose, there is abuse of power by the authority and the action 
may be quashed. Improper purpose must be distinguished from 
'mala fide' exercise of powerTln thelatterTpersonal ill-will, malice 
or oblique motive is present, while in the former it may not be so, 
and the action of the authority may be bona fide and honest and 
yet, ILJt is no^ contemplated by the relevant statute, it may be 
setjajside. In other words, c a power used under the misappre- 

60. AIR 1964 SC 962 : (1964) 6 SCR 330. 

See also G. Sadanandan v. State, AIR 1966 SC 1925 : (1966) 3 SCR 590. 

61. E. P. Royappa v. State of T. JV., (1974) 4 SCC 3 (41) AIR 1974 SC 555 

62. Ibid, at p. 41 (SCC), p. 586 (AIR) (Per Bhagwati, J.). See also Rowjee's 
case, (supra), at pp. 969-70. 

63. Gulam Mustafa v. State of Maharashtra, (1971)1 SCC 800 (802): AIR 
1977 SCC 448 (449); Kedarnath v. State of Punjab, (1978) 4 SCC 336: 
AIR 1979 SC 220; Tara Chand v. Municipal Corp. Delhi, (1977) 1 SCC 472 
(434): AIR 1977 SC 567 (577) ; State of Punjab v. Ramjilal, (1970) 3 
SCC 602 : AIR 1971 SC 1228 : (The allegations oLmalp *M* ""* * h"? 
against a named official). 


hension that it was needed for effectuating a purpose, which was 
really outside the law or the P^Pgrscope of the power, could 
be said to be an exercise for an extraneous or collateral purpose. 84 

Nalini Mohan v. District Magistrate* 5 ^ ^ 

The relevant statute empowered the authority to rehabilitate 
the persons displaced from Pakistan as a result of communal 
violence. The power was exercised to accommodate a person who 
had come from Pakistan on medical leave. The order was set 

Ahmedabad Manufacturing and Calico Printing Co. v. Municipal Corpora- 
tion, Ahmedabad 

The Commissioner was empowered under the Act to dis* 
approve the construction of any building if it contravened any of 
the provisions of the Act. If the said power is exercised to bring 
pressure on the company to provide drainage facility to its other 
existing buildings, the order cannot be sustained. 

State of Bombay v. /ST. P. Krishnan* 1 

In this case, the government refused to make a reference on 
the ground that 'the workmen resorted to go slew during the 
year'. The Supreme Court held that the reason was not germane 
to the scope of the Act and set aside the order. 68 

(vii) Colourable exercise of power 

Where a power is exercised by the authority ^stensiblyjfor the 
purpose for which it was conferred, but inreaU^Tfor some other 
purpose, it is called colourable exercise of power* Here, though 
the statute does not empower the authority to exercise the power 
in a particular manner, the authority exercises the power under 
the 'colour* or guise of legality. InSomawanti v. Jttate of Punjab**, 
the Supreme Court held that the power must be exercised for the 

64. State of Mysore v. P. R. Kulkarni, (1973) 3 SCO 597 (600) : AIR 1972 SC 

65. AIR 1951 Gal. 346. 

66. AIR 1956 Bom. 117. 

67. AIR 1960 SC 1223 : (1961) 1 SCR 227. 

68. Sec also Roberts v. Hopwood (infra). 

69. AIR 1963 SC 151 : (1963) 2 SCR 774. 


purpose for which it was conferred and if it was used for different 
purpose, there was colourable exercise of power, a^s not being 
relatable to the power conferred upon the authority by the statute 
and \he 6FdeF~wITl be aliullity. ~ 

But it is very difficult tQ^dravyjajdividing line between impro- 
per or collateral purpose ^njthe one hand and colourable exercise 
ofpower orFlhe^otrien IFis obvious that if the statutory power 
is exercised for an 'improper* or 'collateral* purpose, there is 
'colourable* exercise^ofjiovyer. Similarly, ^fThorVir^oImira^le* 
exercise^Tpower, it cannot be said that it was exercised for 
proper purpose. Thus, both the phrases can be used interchange^ 
ably, In fact, as the learned authors on administrative 

state, the phrase "colourable" is confusing and it is better to 
avoid the use of that phrase. 

(viii) Disregard of the principles of natural justice 

By now, it is well settled law that even if the exercise of 
power is purely administrative in nature, if it adversely affects any 
person, the principles of natural justice must be observed and the 
person concerned must be heard. Violation of the principles of 
natural justice makes the exercise of power ultra vires and void. 71 

(ix) Unreasonableness 

A discretionary power conferred on an administrative autho- 
rity must be exercised by that authority reasonably^ If the power 
is exercised unreasonably, there is an abuse of power and the action 
of the authority will be^tfltra vire^. ^ 

The term 'unreasonable* is ambiguous and may include many 
things e. g. irrelevant or extraneous considerations might have 
been taken into account by the authority or there was improper 
or collateral purpose or mala fide exercise of power by it or there was 
colourable exercise of power by the authority and the action may 
be set aside by courts. 

Roberts^v. HopwogdP* ^ 

In this leading case, the local authority was empowered to 

^ -- ---- 

TO/ Jain and Jain : Principles of Administrative Law, (1973), p, 402. 

71. Set Lecture VI (supra] . 

72. (1925) AC 578. 


pay "such wages as it may think fit". In exercise of this power, 
the authority fixed the wages at per week to the lowest grade 
worker in 1921-22. The Court held that though discretion was 
conferred, it was not exercised reasonably and the action was bad, 
According to Lord Wrenbury, 'may think fit* means 'may 
reasonably think fiV. His Lordship observed : 

Is the verb f< jh^Jk^equivalent to "reasonably think*' ? 
My Ior3s7^o~lfny rninHthere BT~no "difference inTlHe 
meaning, whether the word "reasonably" or "reasonable" is 
in or out. ..I rest my opinion upon higher grounds. A person 
in whom is vested a discretion must exercise his discretion 
upon reasonable grounds. A discretion 

what he J^ikes merely because he is ' mindefWdSLSO he must in the 
exercise of his discretion^ not what he likes butjyhgJihe ought. In 
other words, he must, by use'oTHITl'eason, Ascertain and 
follow the ^course _ which reason ^directs^_ He must act reason^ 
aBIy7 r ^emphasis supplied) 

Rohtas Industries Ltd. v. S. D. Agrawal 1 * 

In this case, an order of investigation was issued by the 
Central Government against the petitioner company under the 
Companies Act, 1956. The Supreme Court set aside the order as 
the material in possession of the Government did not suggest that 
there was fraud on the part of the company. 


Under Section 178A of the Customs Act, 1878, the burden of 
proof that the goods are not smuggled goods is on the person from 
whom they are seized in the 'reasonable belief 1 that they are 
smuggled goods. The Supreme Court took a narrow view and 
held that it was not sitting in appeal over the decision of the 
authority and all that was necessary was the primajacie ground 
about theT^onable b'eKeT. BuTTn"^^ 

^ the Court held that the expression 'reason to believe' 

suggests that the 'belief must be of an honest man and reasonable 

73. (1925) AC 578 at p 613. See also Liversidge v. Anderson, (1942) AC 206; 
Nakkuda Ali v. Jayratne, (1951) AC 66. 

74. AIR 1969 SC 707 : (1969) 1 SCC 325. 

75. AIR 1962 SC 1559 : 1962 Supp 3JSCR 866. 

76. (1972) 3 SCC 234: AIR 1971 SC 2451. 


person based upon reasonable grounds and not on mere suspi- 
cion'. 77 ~~ ~ 

At the same time, it should not be forgotten that the action of 
the authority should not be held to be unreasonable JggreJy 
because the court thinks it to be unreasonable. 78 The Court can- 
not sit in appeal over the decision of the~ad minis trative authority. 79 
It can interfere only if the decision is c so unreaspnabte that no 
^^son^ or perverse 81 or 

there is 'no evidence' to justify the conclusion. 82 

(C) Infringement of fundamental rights 

Under the Constitution of India, certain fundamental rights 
are conferred upon citizens and other persons. An administrative 
authority must exercise its discretionary powers in consonance with 
those rights. Any action taken in contravention of the provisions 
of Part III of the Constitution will be ultra vires on that ground 
also. 83 

77. (1972) 3 SCO 234, at. p. 239 (SCC) : p. 2454 (AIR). 

78. Kruse v. Johnson, (supra) p. 89. 

79. Pukhraj case (supra) ; Sri Ram Vitas Service (supra) ; Bombay Union v. State 
(supra) : Prem Kakar v. State (supra) ; Hindustan Tin Works v. Employees, 
<1979) 2 SCC 80, 84 : AIR 1979 SC 75. 

80. Lord Greene, M. R. in Wednesbury Corp. (supra) ; C.LT, v. Radha Kishan 
(supra) ; Rohtas Industries (supra) ; Pukhraj (supra). 

81. Dhirajlal v. 7.T.C. (supra); D. Macropotto v. Employees (supra); 
Dhrangadhra Chemical (supra). See also Bailey, Cross, Garner (supra) pp. 
299-300 de Smith (supra) pp. 303-31 1. ^ 

82. Dhrangadhra Chemical (supra) ; State of A. P. v. Rao (supra). 
83.' See Lecture IX (infra). 

Lecture IX 

"Ubi jus ibi remedium" 

The King is at all times entitled to have an account, why the liberty of 
any of his subjects is restrained. 


We have a legislative body, called the House of Representatives, of over 
400 men. We have another legislative body, called the Senate, oj 
less than 100 men. We have, in reality, another legislative body, 
called the Supreme Court, of 'nine men ; and they are more powerful 
than all the others put together. 


1. Introduction 

2. Judicial Remedies 

(1) Prerogative remedies 

Historical background 
Constitutional provisions 
Locus standi : Who may apply 
Against whom a writ would lie 
Alternative remedy 
(t) Article 32 
() Article 226 

(a) Position prior to 1976 

(b) Position after 1976 
Dtlay and laches 

Writs in particular 

. Habeas corpus 

Scope and object 


Who may apply 


When may be refused 

Successive applications 

Effect of proclamation of emergency 

II. Mandamus 

Nature and scope 


Who may apply 

Against whom mandamus will not lie 

Alternative remedy 

[ 201 ] 


III. Prohibition 

Nature and scope 


Limits of the writ of prohibition 

Alternative remedy 

IV. Certiorari 

Nature and scope 




Alternative remedy 

Prohibition and certiorari : disticntion 

V. Quo warranto 

(') Nature and scope 
(u) Conditions 

(MI) Locus standi : Who may apply 
(iv) When may be refused 

(v) Alternative remedy 
(vi) Delay 

Statutory remedies 

(1) Ordinary civil tu its 

(2) Appeals to courts 

(3) Appeals to tribunals 

(4) Special leave to appeal to the Supreme Court 

(5) High Court's power of superintendence 

Equitable remedies 


Common law remedies 
Other Remedies 

1) Parliamentary remedies 
Conseii d'Etat 





Administrative law provides for control over the adminis- 
tration by an outside agency strong enough to prevent injustice to 
the individual while leaving the administration adequate freedom 
to enable it to carry on effective government. 1 Due to increase 
in governmental functions, administrative authorities exercise 
vast powers in almost all fields. But as has been rightly observed 
by Lord DenningjD 'properly exercised the new_ powers of the 
executive lead to Wei fere ^tg^buj L _g.6usgdthe)r lead to The 

1. Garner : Administrative Law, (1963) p. 95. 

2. < Freedom under the Law : ( 1949) p. 126. 


To tali tarian State/. Without proper and effective control an 
individual would be without remedy, even though injustice is done 
to him. This would be contrary to the fundamental concept in 
English and Indian legal systems in which the maxim ( ubi .it^Jt'* 
remedium' (wherever therete a right there is a remedy) has been 

adopted Since long. Tn^fact } right and r^mftHy nra turn ri^pg 
of the same coin and they cannot be dissociated imm each ot^er. 
The remedies available to an individual aggrieved by ayiy 
of an administrative authority *y h* <;lf\saifi^ RR 

Judicial remedies ; and 


These remedies may further be sub-divided into the following 
categories : 

(1) Prerogativejemedies ; 

(2) Statutoryj^medies ; 

(3) Equha^^rejnedies ; rid 

(4) Coaimoii law remedies. 

Let us now consider each of them in detail. 
Prerogative remedies 

Historical background 

In England, the highjjrerogative writs played a very _impoi- 
taiit_iSSjn upholding the rights and liberties of subjects and in 
providing effective safeguaijsjy^^^t^ar^ 

by public Authorities, Under the provisions of the Regulating 
Act, 1773 the Supreme Court wiestablished ^j^G^Jcutta in 1774 

ll^ tctissue 

^ prerogative^ writs . The said power was also conferred 
on High Courts established under the Indian High Courts Act, 
1861 and since then, High Courts exerclsethe power to issue the 
premgativejwkTo^pfotect the rights of indiv^ual^. 

Constitutional provisions 

The Founding Fathers of the Constitution of India were 
aware of the part played by these writs. In these circumstances, 


under the Constitution, thejnipreme Court and High Courts arc? 
empowered^tojssue writs in the nature of habeas corpus, mandamus^ 
prohibition, QUO warranto and ctrtiorari Jo the enforcement Q 
fundamental /dghts (Article ? 3!jQ_jajiji_j^^^ 

(Article 226^y Thus' the bljpreme Court and High Courts are 
empowered to issue the following writs : 
/. Habeas corpus ; 

2. Mandamus ; 

3. Prohibition ; 

4. Certiorari ; and 

5. Quo warranto ' 

Locus standi : Who may apply 

The Supreme Court can issue a writ under Article 32 of the 
Gonstitutio^cmfy for enforcemeaTof any fundamental right con- 
ferrecH3y~the GonstitutionT The powers of a High Court are 
very wide in this resgect as it can issue ajwrit fc^enjor cement of 
any fundamental right and also >forjp*h*-r purposes mentioned Jii 
sulj-clauses^p) and (c) ofTlauseTQ) of Arjicle 2^6^ As a genera.] 
rule," a person who approaches the court must prove fjfoj) right 
which can be enforced by the court by issuing an appropriate 
writly But this rule does not strictly apply in cases of writs oi 
habeas Corpus 5 and quo warranted Thus, a non- citizen cannot file 
a^writpetition for the J3nfpxcem.ent oTa iundamental right con- 
fer r eooirly^on^ci f i zensT* Such right must be^ an existing right. 7 
flrbu&y botfy4s-B^t : =to4>e^encouraged to challenge an act or omission 
of an authority which does not prejudicially affect him. 8 It is not 

3. j By the Constitution (42nd Amendment) Act, 1976, the words 'for any 
^/ other purpose' occurring in clause ( 1 ) have been deleted and purposes for 

which writs may be issued have been mentioned in sub-clauses (a) t (b) 

^ and (c) of clause ( 1 ) of Art.J22<6. ^ ' 

4/ Valcutia^arCoTv. State of ^^8., AIR 1962 SC 1044; Venkateswari Rao 

v. Government of A, P., AIR 1966 SC 828 ; Charanjit Lai v. Union of India ^ 

AIR 1951 SC 41. 

5. Infra. 

6. Af. S. M. Sharma v. Shnknshnan, AIR 1959 SC 395. 

7. State of Orissa v. Ramchandra, AIR 1964 SC 685 5 Maganbhai v, Union of 
India, (1970) 3 SCC 400 : AIR 1969 SC 783. 

8. J. JV. # Co. v. State of A. P., (1971) 2 SCC 163 : AIR 1971 SC 1507. 


necessary that a writ petition can be filed_j>nly wjj^ejj ^ there is 
actual invasion of a rigritl tt can tfe~ tiled evelT 

reasonable apprehension of invasion of thejright of the getirioner. 
Against whom a writ would lie 

Under Article 226(1 ), r every^ High Court is empowered to 

issue a writ "to ajnyjj^rsojljffL^^ in appropriate 

cases, _ a ^jGover n men tj^ ^ Thus, a writ can be issued against a 
person' or an 'authority* including 'Ooyernment^ for certain 
purposesT ATteflrTe well-known decisions in the cases of 

Electricity Board v. Mohanlal and Sukhdev Singh v. Bhagat 
it is clear that a writ can be issued against a department qf__tbfi 
gQvernrnen^. a statutory authority or even against a ^non-stajutory 
authority, if it has to function under a statutory provision. Thus^ 
a writ can be issued against the Railway JBoard, 12 Panchayat, 13 
Municipality, 14 Road Transport Corgoratipn, 15 Oil and Natural^ 
^ 16 Electricity Board^ 7 Life Insurance Corporation^ 

of India 18 , Reserve^Bank of 

Alternative remedy 

As the Supreme Court and the High Courts are the apex 
judicial bodies Jn the nation and the States rcspectiyejv^it is but 
natural that if alternative and equally efficacious remedy is avail- 
able ^to the party, they may refuse to ^exercise this extraordinaxy 
jqrisdiction and cfirect the party concerned to first avail oL-ibe 
said alternative jmdy^ The effect of availability of an alterna- 
tive remedy may be considered under the following heads : 

(i) Article 32 

9. K. K. Kochuni v. State oj Madras y AIR 1959 SC 725; Bengal Immunity Co. 
v. State of Bihar, AIR 1955 SC 66. 

10. AIR 4967 SC 1857 : (1967) 3 SCR 377. 

11. (1975) 1 SCO 421 : AIR 1975 SC 1331. 

12. Railway Board v. Observer Publications, (1972) 2 SCC 266: AIR 1972 
SC 1792. 

13. Ajit Singh v. State of Punjab, AIR 1967 SC 355. 

14. Rashid Ahmed v. Municipal Board, AIR 1950 SC 163. 

15. Mysore S. R. T. C. v. Devraj, (1976) 2 SCC 863 : AIR 1976 SC 1027. 

16. Sukhdev Singh's case (supra). 

17. Rajasthan Electricity case (supra), 

18. L. I. C. v. Sunil Kumar, AIR 1964 SC 847. 

19. Reserve Bank of India v. JV. C. Paliwal, (1976)4 SCC 838: AIR 1976 
SC 2345. 


() Article 226 

(a) Position prior to 1976 
(b) Position after 1976 

Article 32. Article ^32^ confers a fundamental right to 
moveThe Supreme Court by appropriate proceedings for the 
enforcement of fundamental rights conferred by Part III of the 
Constitution of India. The ritfht to movejhg__Snnrernp Court by 
a petition under Article ^3^ being itself a fundamental right^ 
availability of an__ajjgrnative remedy cannot per se be a good and 
sufficientground for not granting a relief to the petitioner. 20 If the 
petitifioner prima facie satisfies the Supreme Court that his funda- 
mental right is violated, it is not only the right but the dutjj_^)f the 
Go urt to see that the peti t ioner's fundamental righ{ is safeguard- 
ed. 81 _JThus a to issue an appropriare^vvnTunder Article 32 is, , not 
a matter of discretion^JTor the Supreme Court and it cannot refuse 
to grant relief to the petitioner. 22 On the contrary, the State 
canrroc place any hindrance in the way of an aggrieved person 
seeking to approach the Supreme Court. 22 But here also Hidayat- 
ullah, C. J. 23 states : "Although there is no rule or provision of 
law to prohibit the exercise of its extraordinary jurisdiction, this 
Court has always insisted upon recourse to ordin^ryjranedies or 
the^exKausIion of other remedies. It is in rare cases,, where the 
ordinary process of law appears to be inefficacious T that this Court 
inter feresTeven where other remedies are available. This attitude 
arises from the acceptance of a salutary principle that extraordi- 
nary remedies should not take the^lace^>fordinary remedies^. r~ 

Article 226. Even with regard to the jurisdiction of High 
Courts under Article 226, the position is similar when there is a 
violation of any fundamental right of the petitioner. The princi- 
ple that a High Court may not issue a prerogative writ , when an 
adequate alternative remedy would be available could not apply 
where a party came to the court with an allegation that his 

20. K. K. Kochuni 9 s case (supra) at pp. 729-30; Daryao v. State of U. P., 
AIR 1961 1457 (1461). 

21. JV. Masthan v. Chief Commr., AIR 1962 SO 77. 

22. Tilokchand Motichand v. H. B. Munshi, (1969) 1 SCC 110: AIR 1970 
SO 898. 

23. * Ibid, at p. 114 (SCC) ; p. 901 (AIR), 


mental Bright had been infringed and sought relief under 

^" ~ "" 

(a) Position prior to 1976. JMQr. to the Constitution (42nd 
Amendment) Act, 1976, the availability of an alternative remedy 
was not considered to be an absolute bar for granting the relief to 
the "petitioner inioe7l]Alr'ticie_226 of the Constitution. 6ut "at the 
same time it wasji consideration upon which the Court might 
refuse to issue a wrta Generally^ a High Court may not issue a 
writ except in cases involving infringement of fundamental rights 
under Article 226 i other adequate remedies are available to the 
petition^ . The remedy available under Article 226 to move a 
High Court cannot be permitted to be utilised as substitutes for 
other statutory remedies, In such cases, generally, a High Court 
will not exercise its discretion in favour of the petitioner. 25 But 
it was not a rigid or inflexible rule. Ijwas_a_,rriattg,r of discretion 
and not of jurisdiction **' And in spite of an alternative remedy 
being availabl^y-the court did not throwaAvay the petition but 
exercised its discretion if there were jgooci grounds to do so. 27 
The correct law was laid down by the Supreme Court in State oj 
U, P. v. Mohd.Nooh'*'*, wherein the Court observed : 

The fact that the aggrieved party has another 

^remedy maybe taken into consideration by the superior 
c Courf"TfT arriving at a conclusion as to whether it should, in 
exercise of its discretion, issuejj^yrit pf rfrtiorarj j^o quash 
the proceedings and decisions of inferior courts subordinate 
to it and ordinarily the superior court will 


until tHe aggrieved party ha^exn"aiIsted~Tiis other statutory 

24. Himatlal v. State, AIR 1954 SC 403; Mohd. Tasin v. T. A. C. 3 AIR 1952 
SC 115; State of Bombay v. United Motors, AIR 1953 SC 252; Bengal 
Immunity Co., (supra). 

25. Rashid Ahmed v. I. 7". C., AIR 1954 SC 207; A. V. Venkateswaran v. 
Wadhwani, AIR 1961 SC 1506; Abraham v. /. T. 0., AIR 1961 SC 609; 
Champa Lai v. I. T. C., AIR 1970 SC 645 : (1971) 3 SCC 20 : Baburam v. 
Zila Parishad, AIR 1969 SC 556. 

26. Union of India v. T. /?. Vcrma, AIR 1957 SC 882 ; Baburam' s case (supra) ; 
AddL Collector v. Shantilal, AIR 1966 SC 197; Rohtas Industries v. Union of 
India, (1976) 2 SCC 82 : AIR 1976 SC 425. 

27. Union of India v. Verma (supra) ; State of U. P. v. Abdul Samad, AIR 1962 
SC 1506. 

28. AIR 1958 SC 86 : (1958) SCR 595. 


remedies, if any. But this rule requiring the exhaustion 

jhe writ will be granted is a rule offoolicy\con- 
l rather than a rule oj law. ._ ..... 29 (emphasis 


1976- But after the Constitution (42rid 

AmendiTientl_ActJ.976, the position is radically changed by insert- 
ing clause (3) to Article 226. Clauses^ I) a"rld (3) of Article 226^ as 
amended l5y~tKe^ Constitution (42nd Amendment) Act, 1976 read 
as under : -- " 

(1) Notwithstanding anything in Article 32_ but subject to 
the provisions of Article 131 A and Article 226A, every 
High Court shall have power throughout the territories 
in relation to which it exercises jurisdiction to issue to 
any persorror authority, including in appropriate cases, 
any Government within those territories directions, 
orders or writs, including writs in the nature of habeas 
corpus , mandamus, prohibition, quo warranto and certiorari, 
or any of them, 

(a) for the enforcement of any of the 
by the provisions of Part IIIj or 

(b) forthe^redress of any injiuxof a substantialjia.ture 
by reason of the contravention of any other provi- 
sion of this Constitution or any provision of any 
enactment or Ordinance or any order, rule, regula- 
tion, bye-law or other instrument made thereunder; 

(c) for the_iedrcss_of any injury by reasonjof any iilega- 
lity in any proceedings by or before any authority 
under any provision referred to in siih-rl^pe ^ 
wliere such illegality has resulted in substantial^jb 
lure of justice. 

(2) .. "^ == ~^" 

(3) No petition for the redress of any injury referred to in 
sub-clause (b) or sub-clause (c) of clause (1) shall be 
entertained if any other remedy for such redress is pro- 

29. Ibid, at p. 93 (AIR). 


vided for by or under any other law for the time being 
in force. 

Reading these two clauses together, it becomes clear that 
except in cases of the enforcement of any fiipfj[^mp"ta| rjjgh^ the 
existence of an alternative remedy is an absolute bar to the juristic- 
tlonj5f^a.Jiigh Court under Article 226. Thus, after the 42nd 

menment) it i a matter ourisdieotfaaiid nQLJzfjiscrtffi SHIl 
However, 'where power is sought to be exercised without jurisdic- 
tion or authority of law, not backed by law or without sanction of 
law Or the order is a purported order' 30 or where the exercise of 
power is 'ab-initio void* and therefore a nullity, 81 the fetter of 
clause (3) of Article 226 would not restrain the High Court in 
entertaining a writ petition under Article 226 even afteMheTJorTs- 
titution (42nd Amendment) Act, 

Delay and laches 

As discussed above, to issue a writ is in the discretion of the 
court and if the court finds that there is inordinate delay and lache? 
on the part of the petitioner in approacHIng the~CouYf7tt may di 
miss the petition on that ground alone. 33 The principle underly 
ing this proposition is that the courts do not encourage agitation of 
stale claims and exhuming matters which have already been disposed 
of or where the rights of third parties have accrued in the mean- 
time, 34 or where there is no reasonable explanation for the delay. 85 

30. Ahmedabad Cotton Mfg. Co. v. Union of India, AIR 1977 Guj, 76 : (1977) 18 
GLR 714 (FB). 

31. Mehmoodmiyan Kadri v. Sirishkumar, (1978) 19 GLR 97. 

52A It may be mentioned at this stage that by the Constitution (44th Amend- 
ment) Act, 1978, the original position is sought to be restored with regard 
to jurisdiction of a High Court under Article 226. 

33. M. K. Krishnaswamy v. Union of India, (1973) 4 SCC 163 : AIR 1973 SC 
1168; Aflatoon v. Lt. Governor, Delhi, (1975)4 SCC 285 ; AIR 1974 SC 
2Q f n- > Amrit Lai v. Coll. of Central Excise, (1975) 4 SCC 714: AIR 1975 SC 
538 ; Kamini Kumar v. State of W.B., (1972)2 SCC 420 : AIR 1972 SC 2060. 

34. Ravindra v. Union of India, (1970) 1 SCC 84: AIR 1970 SC 470; Amrit Lai's 
case (supra) ; Deodhar's case (infra). R. A". Soni v. State, AIR 1977 Guj. 76. 

35. State of Punjab v. B. D. Kaushal, AIR 1971 SC 1676; H. Lawrence v. 
Union of India, 1975 UJSC 471. 


This principle applies even in case of infrinMement of fundamental 
rights'. 86 

The real difficulty is about the measure of delay. Since the 
Limitation Act does not apply to writ petitions and no period of 
limitation is prescribed bjMhe Constitution to move the Supreme 
Court under Article 32 or High Courtsjunder Article 226^ the 
matter is 'more or lesiPTeft to judicial dii^^ 

Devi v. State of Bihar* 1 9 speaking for the Supreme Court, Gajendra- 
gadkarTTT J. observed : 

No hard and fast rule can be laid down as to when the High 
Court should refuse to exercise its jurisdiction in favour of a 
party who moves it after considerable delay and is otherwise 
guilty of laches. That is a matter which must be left to the 
discretion of the High Court and like all matters left to the 
discretion of the Court, in this matter too discretion must be 
exercised judiciously and reasonably. ^ 

In Tilokchand Motichand v. H. B. Munshi, Hidayatullah, C. J. 
observed : 

. . , [T]he question is one of discretion for this Court to follow 
from case to case. There is no lower limit and there is no 
upper limit. A case may be brought within Limitation Act 
by reason of some article but this Courtjieed not necessarily 
give the total time_tothe litigant to move this' Court under 
Article 3^. Similar! y"m a suitable case thfs Gourtmay enter- 
tain such a^petition even after a lapse of time] It will a,l{Ji* 
pend onwhatlhepjreach of the Fundamental "Right and the remedy 
claimed are and when and howfhe delay~arose (emphasis supplied) 

Thus, while on the one hand, writ petitions filed within the 
period of limitation prescribed for a civil action for the same 
remedy may be dismissed on the ground of delay and laches, 40 on 

36. Tilokchand v. Munshi (supra); Durga Prasadv. Chief Controller, (19 69) 1 
SCO 185 : AIR 1970 SC 769. 

37. C. A. 140 of 1964 decided on September 22, 1964 (unrep.) Durga. Prasad's 
case (supra), at p. 187. 

38. (1969) 1 SCO 110: AIR 1970 SC 898. 

39. Ibid., at p. 116 (SCC) ; Ramchandra Deodhar v. State of Maharashtra, (1974)1 
SCC 317 (325-27) : AIR 1974 SC 259 (264-66). 

40. State of M. P. v. BhillalBhii, AT R 1964 SC 1006; D-urga Prasad's case 
(supra) ; Ttlokchand's case (supra). 


the other hand, there may be cases in which writ petitions filed 
after 'the period of limitation* may be entertained. 41 

It is submitted that the correct view is as laid down by the 
Supreme Court in P. S. Sadasivaswamy v. State of T. JV. 48 , UL the 
following words : 

It is not foa.t there is any period of limitation for the 
Courts to exercise their powers under Article 226 nor is it that 
there can never T>e a case where the Courts cannot interfere in 
a matter after the passage of a certain length of time. But 
it would be a sound and wise exercise of discretion for th$ Courts~~to, 
refuse to exercise their extraordinary powers under Article 226 in 
case of persons whojjo not approach it expeditiou^L^o^ rttitf 
who stand by anJqUowthin^s to happen an(LJ^^^pr^chth^r 
to put JorwarcTsTale claims and try'^W unsettle settled matters^ 
(emphasis supplied) """ 

Writs in particular 
I. Habeas Corpus 

Scope and object. The Latin phrase 'habeas corpus' means 

have the b^dy,'. This is a'wnt in tlie "nature of an order calling 
upon me person who has detained an^thegjojroduce the latte 
before the Court, in order to let the Court know on what ground 
EeTlias been cpnfinecJLand to set him free if there is no legal 
justification for the imprisonment**! In other words, by this 
writ, the Court directs the person or authority who has detained 
another person to bring thebody of the prisoner before the Court 
so that the Court may decide the validity, jurisdiction or justifi- 
cation for such detention. As Lord Wright 45 states, 'the incalcula- 
ble value of habeas corpus is that it enables thejmmediate determina- 
tion ofjthe ^ight of thejyp^Uant J s^reedom J . 'If the Court comes 
to the conclusion that there is no legal justification for the 
imprisonment of the person concerned, the Court will pass an 
order to set him at liberty forthwith/ 46 Thus, the object _oLJJi 

41. Haryana State Electricity Board v. State of Punjab, (1974)3 SCC 91 : AIR 
1974 SO 1806; Tilokchand's case (supra) ; R. S, Deodhar's case (supra). 

42. (1975) 1 SCC 152 : AIR 1974 SC 2271. 

43. Ibid. Per Alagiriswami, J. at p. 154 (SCC) p, 2272 (AIR). See also R. K. 
Soni v. State : AIR 1977 Gaj 76. 

44. State of Bihar v. Kameshwar, AIR 1966 SC 575 (577). 

45. Greene v. Home Secretary, (1942) AC 284 (302). 

46. Ghulam Sarwar v. Union of India, AIR 1967 SC 1335. 


writ of habeas corpus is to release a person from i}legal detention 
and not to punish the detaining authority.. * 'The question _foir a 
habeas corpu$_fmrt i<uvhether the subject is lawfully detained. If 
hejgy. thejwrit cannot issue, if he is not, it must issue .f' 47 Black- 
stone states7~~ ^ "" ~~~ 1 

It is a writ antecedent to statute^ and throwing its 
root deep into the genus of our common law .... It is perhaps 
the most important writ known to the constitutional law of 
England, affording as it does a swift and imperative remedy 
in all cases of illegal restraint or confinement. It is of 
immemorial antiquity, an instance of its use occurring in 
the thirty-third year of Edward I, 

Conditions . L The writ of habeas corpus may be issued when 
the^focedur^established by law has not been followed in case 
of detentioiTof a person, 48 or the order of detention is not in 
accordance with tHe'^rovisions]of the Constitution, 49 or the (law 
uncTer which lie has been detained is ultra vires or invalid, 60 or 
where there is abusejof statutory power*, 51 or yftg/a fide exercjseof 
power 62 by the detaining authority. 

Who may apply. An application for the writ of habeas cor- 
bus may be made by the person illegally detained. But if the prison- 
er himself is unable to makejuch application, it can be made by 
any other pe^on having finteresftin thejprisoner. Thus, a wife, 53 
pr 'even a" friend * ma in such circumstances make an 

application tor the "writ 6f~Kabeas corpus^ 

47. Per Scott, L. J. in /?. v. Home Secretary, Ex parte Greene, (1941) 3 All ER 
104 (105). 

48. Art. 21. Coll. of Malabar v. E. Ebrahim, AIR 1957 SC 688, Parshottam v. 
B. M. Desai, AIR 1956 SC 20. 

49. Art. 22. A. K. Gopalan's case (supra) ; Coll. of Malabar (supra) ; In re Madhu 
Limaye, AIR 1969 SC 1014. 

50. State of Bihar v. K. P. Verma, AIR 1965 SC 575. 

51. Dwarkadasv. State (supra), Dr. Lohia's case (infra). 

52. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; G. Sadanandan v. 
State of Kerala, AIR 1966 SC 1925; A. K. Gopalan's case (supra), Dwarkajas 
(supra), Pannalal v. Union of India, AIR 1958 SC 163. 

53. Gobbet v. Hudson, (1850)15 QB 988; Sundarajan v. Union of India, AIR 1970 
Del 29. 

54. In re Thompson, (1860) 40 LJ MC 19 Swdarajan's case (supra). 

55. Vn re Rajadhar, AIR 1948 Bom 334. 


Procedure . Every application_for the 

must be i accompaniecLb^^n ^ajffidavit^tating the facts and circum- 
stances leading to the making of sncjhL^^li^tjon^ If the Court is 
satisfied that there is d^prima facie case for granting ther~prayer, it 
will issue a rule nisi calling upon the detaining authority on a 
specified day to show cause as to why the rule nisi should not be 
made absolute. On the specified day, the Court will consider the 
merits of the case and will pass an appropriate order.. '"If the Court 
Is of the opinion that the cfetention was not justified, it will issue the 
writ and direct the detaining authority to release the prisoner 
forthwith. On the other hand, if according to the Court, the 
detention was justified, the rule nisi will be discharged. Where 
there is no retunT~to the rule ~nisi t the prisoner is entitled to be 
released forthwith. 66 

When may bejvfused. Since the object of the writ of habca* 

corpus is remedial fln.^ nnt.punitiive^he legality or otherwise of the 
detention must be decided by the Court with reference to the 
date of return of the rule nisi and not with reference to the date 
of making such application. Thus, the writ 'would not be issued 
if at the time^of the rule nisi, the prisoner was not illegally 
detained ."even though at the time__pf detention the order was 
illegaL 57 Similarly, if cturing the pendency of the petition for 
the writ of habeas corpus the r prisoner is released, it will become 
[hfructuous. 58 In Talib Hussain v. State of J. /T. 59 , the Supreme 
Court rightly observed : 

... [I] t is sufficient to point out that in habeas corpus 
proceedings the Court has to consider the legality of the 
detention on the date of hearing. If on the date of hearing 
it cannolbe said that tne aggrieved party Jias been w^ngfaHy 
deprivecl of his person aLJihorty and his detention is contrary 
to law, a writ ctfhabeas corpus cannot issue. 60 

Successive applications .r For many years it was accepted in 

56. State of Bihar v. Kameshwar (supra). 

57. Barnando v. Ford, (1862) AC 326; Naranjan Singh v. State of Punjab, AIR 
1952 SC 106; B. R. Rao v. State of Orissa, (1972)3 SCC 256 : AIR 1971 SC 
2197 j Kidar Nath v. State of Punjab, AIR 1960 Punj 122. 

58. Kidar Nath's case (supra). 

59. (1971) 3 SCC 118: AIR 1971 SC 62. 

60. Ibid, at p. 121 (SCC) : p. 64 (AIR). 


England that an unsuccessful applicant could go from judge to 
judge and court to court successively and get his application 
renewed on the same evidence and on the same grounds for the 
writ of habeasjor^us^ 1 Thus the applicant "could go from one 
judge^TcTaHother until he could find one more merciful than his 
brethren" 61 *. But in re Hastings (No. 2)** the earlier view was over- 
ruled. Toda^apepou-has nn r igrht o~yesent successive appli- 
cations for me writ of habeas corpus.** " " ~ " ~~~ 

~~ Kj^tjtf^odai^ti^n of emergency. Article 359 of the Constir 
tution of India empowers the Pi^sjuieut^to^&uspend the- -right 
to move any court for the_gnfo^^ 

rights conferred by PartjIJLagjiiay be mentioned in the Presiden- 
tial Order . In Makhan Singh v. State of Punjab** the SupremeCourj 
field that the Court cannot issue a writ of habeas corpus to set at 
liberty a person who hagjigftn fat**A linger the Defence of India 
Act, 1902 even if his detention was inconsistent with his consti- 
tutional rights guaranteed under Part III of the Gonstitutioru 
But the Presidential Order doesjiot debartte jujisj^^^ 
Court to decide as to whether the order of detention was under the 
Defence of India Act, 1962 or rules made thereunder. It is open 
to me petitioner to contend that the order wag mafafide or invalid 
and in either of the cases, he was entitled to move the court for the 
protectioruof his rights under Articles 21 and 22 of the Constitution 


Nature and scope. Mandamus means a command. It is an 

order issued by a court to 'a ^public authority asking it to perform 

aTpuDlic duj,y)jj^ or by any other 

taw .^ MandainuTiisi judiciaj^rerr^y which is in the form of an 

61. Eshugbayi v. Govt. of Nigeria, (1928) AC 459. 

6ia, Per Harman, J. in In re Hastings (No. 3), (1959) Ch. 368 (379). - 

62. (1958)3 WLR 768. 

63. P. JV. Lakhanpal v. Union of India, AIR 1967 SC 908; Ghulam Sarwar*s 
case (supra), In re Prahalad Krishna, AIR 1951 Bom 25 (FB). 

AIR 1964 SC 381. 

Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. See also Lecture II 
(supra) . 

66. State of Mysore v. Chandrasekhara, ACR 1965 SC 532 ; S. I. Syndicate v. 
Union of India, AIR 1975 SC 460. 


order irofm^aLSUllsrior courts the Supreme Court or a High Court) 
to ai^y^ga^ej^m^nt^ court f corporation or public jLUthority^o_d^ 
or /(o^jprbeaj^from _ doing someT specific act which that body is 
obligeTh~trrrder law to do or refrain fromdoing, as the case may 
be, and which is in the nature of a. public duty and in certain 
cases of a statutory dutyj 7 , r 

(ii) Conditions. A writ of mandamus can be issuegLJfjhsLJaL^^ 
ing conditions are satisfied by the petitioner : 

(f?) The petitioner must have a legal right. Thus, when 
the petitioner contended that hisjmuors had been 
promoted By" the Government and he haoVbeen left out, 
and tEeT Court held that the petitioner was not quali- 
fied for the post, his petition was dismissed. 68 

(ty) A legal duty must have been imposed on the authority 
and the performance of that duty should be, impera- 
tive, not discretionary or optional. _ There must be in 
the applicant a right to compel the performance of 
some duty cast on the opponent v 89 Thus, if at its own 
discretion, Government makes a rule to grant dearness 
allowance to its employees, there is no legal duty anc 
the writ of mandamus cannot b 

G overnmejrit for performance of th at^jitjr/_ 

duty must belftatutorj\i.e. one imposed either by 
the Constitution, 71 or by any other statute, 72 or by 
some rule of common lawf 78 Jaut should not be con- 
tractual. 74 

(iv) In certain circumstances, however, even if discre- 
tionary power is conferred on the autholrTty andf the 

67. Markose : Judicial Control. . . . , (supra), at p. 364. 

68. Umakant v. State of Bihar, AIR 1973 SC 965. 

69. State ofM.P. v. Mandavar, AIR 1954 SC 493. 

70. Ibid. State of Mysore v. Syed Mahmood, AIR 1968 SC 1 1 13. 

71. Rashid Ahmed v. Municipal Board, AIR 1950 SC 163; Wazir Chand v. Stah 
ofH.P., AIR 1954 SC 415. 

72. State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 ; Guruswamy v 
State of Mysore, AIR 1954 SC 592. 

Commissioner of Police v. Gordhandas, AIR 1952 SC 16. 
74. Lekhraj v. Dy. Custodian, AIR 1966 SC 334. 


statutory provision are made for such exercise of the 


said pgwgTx the writ of mandamus can be issued lorthe 
enforcement of that duty() 

The duty must be of a public nature. 16 -* 

If the public authority invested with discretionary 
power abuses the power, 77 or exceeds it, 78 or acts malq 
fofej. or there is non-application of mindMpy it, 80 or 
irrelevant considerations have been taken into account/ 1 
the writ of mandamus canbejssufid* 

The petition for a writ of mandamus imutf, be 
preceded by a demand of justice ^nd its refusal. In 
Halsbury's LawTot JBngland^it is stated : ~~ 

As a general rule the order will not be grant- 
ed unless the party complained of has known 
what it was he was required to do, so that he had 
the means of considering whether or not he should 
comply, and it must be shown by evidence that 
there was a distinct demand of that which the 
party seeking the mandamus desires to enforce, and 
that that demand was met by a refusal. 

The above principle has been accepted in 

In '^^aT^Rai v. Union of India 8 * the petitioner was in 

military service. He was removed from service and 

75J Commr. ofPolict v. Gordhandas t (supra). 

7f>. Sohanlal v. Union of India, AIR 1957 SC 529. 

77. State of Punjab v. Ramji Lai, (1970) 3 SCO 602 : AIR 1971 SC 1228. 
State ofHaryana v. Rajendra, (1972) 1 SCC 267 : AIR 1972 SC 1004; 

78. Calcutta Discount Co. v. 7.T.O., AIR 1961 SC 372. 

79. Pratap Singh v. State of Punjab, AIR 1964 SC 72 ; Rawju v. State of A.P., 
AIR 1964 SC 692. 

80. State of Punjab v. Hari Kishan, AIR 1966 SC 1081 ; Kishori Mohan v. State 
of W.B., (1972) 3 SCC 845 : AIR 1972 SC 1749. 

81. Rohtas Industries (supra) ; Manu Bhusan v. State of W.B., (1973) 3 SCC 663 : 
AIR 1973 SC 295. 

82. Halsburfs Laws of England, (3rd Ed.) Vol. 13, p. 106. 

83. Kamini Kumar's case (supra) ; Amrit LaPs case (aupra) ; S.I. Syndicate v. 
Union of India, AIR 1975 SC 460. 

84., AIR 1953 Pun. 137. 


therefore, he applied for the writ of mandamus. It was 
not shown that he had at any time applied for reinstate- 
ment against the order of removal,. The Court held 
that the application was not maintainable. The plea 
was not of form but of _ substance > and before issuing 
the writ of mandamus, the Court must be satisfied that 
the demand was made by the aggrieved person and ij 
was refused by the authority. 

Who may afrt)lv--~\ m person wli* riflht fo^ !^e. n infringed 

may apply forTHevvrit of mandamus. Such right must be subsist- 

ing on the date of filing the petition, 85 Thus, irT case of an incor- 

porated company ? the petition must 


case any individual makes an application for the enforce- 
ment of any right of an institution, he must disclose facts tr 
relate what entitled him to make an application on behalf of the 
said institution. 87 

Against whom mandamus w ti[nttie~--A wrk of mandamus 
will riot lie ftprypst the PresijenToFThe 

for the exercise and performance of powers and . 

office or for any lict done or, purporting to be done by him 
in the exercise and performance of those powers and duties,!! 
It will not lie against the State Legislature to prevent them 
from considering enacting a law alleged to be violative of 
constitutional provisions.. 89 It will not lie^ against an inferior or 
ministerial officer who is bound IcLoixey the 

"The writ of mandamus will not be granted against one who_js 
an mfelrior or ministerial officer, bound to _pbey the orders of a 
competent authority t to compel him to do something which 19 
part of his duty in that capqjrity/' 90 It also does not lie against 

85. Kalyan Singh v. State of U. P., AIR 1962 SC 1 183. 

86. Charanjit Lai v. Union of India, AIR 1951 SC 41. 

87. Raj Rani v. U. P. Government, AIR 1954 Ail 492 

88. Art. 361. 

89. NarinderChandv. Lt. Governor, H. P., (197U 2 SCC 747 ; AIR 1971 SC 

90. Halsbwfs Laws of England, (2nd Ed.), Vol. 9, p. 763. 


a private individual 91 or any incorporate body. 92 

^^ V8J3WMIMIHMIHVHB g^HBHMBBr M<MJ * ' *- *.... . n.r^SSSSBgSSBSSlli,'..- ^ 

Alternative remedy. A writ of mandamus will not be refused 
on the ground of alternative remedy being available if^ the peti- 
tioner 'approaches the court with an allegation thatjiis fundamental 
right Eas_been infringed.^ 2 * Ai discussed above, it is the duty of 
the *rligh Court to safeguard the fundamental rights of the peti- 
tioner and the writ of mandamus will be issued . But if the complaint 
is nptjabQut the infringement^ any fundamental right "'IBy^tn^ 
petitioner, the availability of an alternative remedy may be _a 
relevant consider ation.__And if equally efficacious^ effective and 
convenient remedy by way of ^appeal or revision is available against 
the impugned order the court" may reiuse "to issue a "writ of 
mqnd^mus.^ This prerogative remedy is not intended to super- 
sede other modes of obtajnjngrelief provided in statutes. As the 
Supreme. T^ourr^oTnthe" Uniterl Statps observed : "The office 
of a mandamus is to compel the performance of a plain and positive 
duty. It is issued upon the application of one who has a clear 
right to demand such performance, and who has no other alternative. 
remedy* \ 9 *<~ (emphasis supplied) But applicatioa^ofthis rule is 
discretionary ami-dogs not bar jurisdiction of the court and if tKe 
alternative remedy is ineffective^ inadequate or onerous, the court 
may not throw away^ the application _of mandamus^jjn Jthat 


Nature and scope, The writ of prohibition is a 

writ. It can be issued against ajudicial or ^aim-judicial authority, 
wHen such authority exceeds us jurisdictJQiLJQr tries to exercise 
jurisdiction not vested in it. 04 When an inferior court hears a 

91. Praga Tools v. Imanual, (1969) 1 SCC 585: AIR 1 69 SC 1306. 

92. Barada Kanta Aclhi Adhikary v. State of W. B,, AIR 1963 Cal 161 ; tfagpur 
Corporation v. Nagpur E.L. & P. Co. Ltd., AIR 1958 Bom. 498. 

92a. Himatlal v. State : AIR 1954 SC 403 ; State of Bombay v. United Motors, AIR 

1953 SC 252. 
92b. Veerappa v. Raman, AIR 1952 SC 192 ; Rashid Ahmed v. I.T.C., AIR 1954 

SC 207. 
92c. In the matter of Robert L. Cutting, 94 US 14. 

93. Himatlal's case (supra) ; Commr. of Police v. Gordhandas, AIR 1952 SC 16 

94. East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893. 


matter over which it has no jurisdiction, the High Court or the 
Supreme Court can prevent it from usurping jurisdiction and 
keep it within its jurisdictional boundaries. 95 

In East India Commercial Co. v. Collector of Customs** , the Sufc 
reme Court observe^ : 

A writ of prohibition is an order directed to an inferior 
Tribunal fo^kiddj^^ 

therein on the ground that the proceedjngis without or in ex- 
cess^o^jujisjdi^tiQn Qontrary to the laws of the^iand^ statutory 
or otherwise^ 

The moral underlying the writ of prohibition is prevention 
is bettelTthan cure". ^ 

Grounds. A writ of prohibition may be issued against 
judicial or quasi- judicial authority on the following grounds: 

Where it proceeds to act without? 7 or in excess 98 of jurisdiction. 

In case of absence or total lack of jurisdiction a writ of prohibi- 
tion would be available against a judicial or <7tt<m-judicial author- 
ity prohibiting it from exercising jurisdiction not vested in it, 
In Govinda Menon v. Union oflndia^. the Supreme Court rightly 
observed : 

A clear distinction must, therefore, be maintained 
between wantojimsdiction and the manner in which it js 
exercised. ITthere is want of jurisdiction then the matter 
rion judice and a writ of prohibition will lie to the Court 

or inferior tribunal forbidding it to continue proceedings 
therein in excess of its jurisdiction. 1 

In case of excess of jurisdiction a writ of prohibition can be 
issued to a judicial or ^turn-judicial authority jjaJjie, extent _o f 
such excess of jurisdiction allowing it to exercise jurisdictior 

95. Govinda Menon' s case (infra). 

96. AIR 1962 SO 1893 (1903) ; Mackonochle v. Lord Penzance, (1881) AC 424. 

97. East India Commercial Co. (supra) ; Govinda Menon's case (infra) ; Asst. 
Collector, Central Excise v . National Tobacco Co., (1972) 2 SCO 560, AIR 
1972 SO 2563. 

98. Sewpujanrai v. Coll. of Customs, AIR 1958 SC 845 ; National Tobacco Co.'s 
case (supra). 

99. AIR 1967 SC 1274 : (1967) 2 SCR 566. 
1. Ibid, at p. 1277 (AIR). 


vested in it, provided such_groceedings conducted by jhat 
authority are severable, 2 

$ Where there is violation of the principles of natural 

A writ of prohibition can also be issued when there is 
violation ^f the prmciples_ofnatural Justice, In fact, if the princi- 
ples of natuTaTJuTHceTiavenotb e. g., if no notice 
was issued to the person against whom the action is sought ^to be 
taken there is no jurisdiction vested in the authority to proceed 
with such matter^ 

Where there is infringement of the fundamental right of the 
petitioner. 4 

Limits of the writ of prohibition 

(0) The object of the writ of prohibition is to prevent 
unlawful assumption of jurisdiction* 'Therefore, it 
can be issued only when it is proved that a judicial or 
quasi-judicial authority has no jurisdiction or it acts in 
excess of jurisdiction vested in it. Prohibition cannot 
lie in cases where such authority haying jurisdiction 
exercises it irregularly, improperly or erroneously^ 5 

(b) A writ of prohibition can lie only in cases where the 
proceedings are pending before a judicial or quasi-judi- 
cial authority^ Thus, when such authority hears a 
matter over which it; Jhas no jurisdiction, the aggrieved 
person may move a High Court for the writ of prohibi- 
tion forbidding such authority from proceeding with 
the matter. But if the proceedings have been termina- 
ted and_such authority has becorne functus oflicio, ajw"^ 
of prohibition would not lie. 6 Fhere the remedy may 
be a writ of certiorari. 

2. R. v. Local Govt. Board, (1882) QB 309; Sewpujanrai v. Collector of Customs, 
AIR 1958 SC 845. 

3. Manak Lai v. Premchand, AIR 1957 SC 425 ; See also Lecture VI (supra), 

4. Bidi Supply Co, v. Union of India, AIR 1956 SC 479. 

5. NarayanaChettyv. I. T. 0., AIR 1959 SC 213;#. v. Comptroller-General, 
(1953) 1 All ER 862. 

6. Hari Vishnu Kamath v. Ahmed, AIR 1955 SC 233. 


(c) If the proceedings before a judicial or 

authority are partly within and partly withojit jurisdic- 
tion^ the writ oT prohibition may be issued in respect 
of latter. Thus, if the Collector of Customs imposes 
invalid conditions for release of certain goods 
on paymem of fine in lieu of confiscation, the writ of 
prohibition may be issued ^against the Collector from 
enforcing illegal conditionsCj^Similarly, if some proceed* 
ings are disposed of and some are still pending, in 
respect of the pending proceedings, the writ of prohibi- 
tion may be issued. 8 

Alternative remedy. If any alternative remedy is available 
to the aggrieved person, the Court may refuse to issue 
a writ jof^rohibition and may direct him to first resort to^ the 
alternative remedy. But if there is patent lack of jurisdiction in 
an inferior tribunal. 9 or the law which confers the jurisdiction to 
such tribunal is unconstitutional or tjltra vir^s w or there is infringe- 
ment of any fundamental right of the petitioner, 11 the existence of 
an alternative remedy is ; irj^leva^fe~--aftd- ihe-writ of prohibition 
will be issued (as of righTTj ^ 


Nature and scope. 'Certiorari* means 'to certify 3 . It is so 
named as in its original Latin form it required " the judges of any 
inferior rniirt of r<>r.qrfl to certify the record of any matter in that 
Court with all things touching the same and to send it to the King's 
Court toj?e_exarnined^ 12 It is an order issued by the High 
Court to an inferior cp^^t or any _j^hojritff^xer^^ 
fft/gjf-JudiQial functions toinvestigate and decide the legality and 
validity of the orders passed by it. 

SewpujanraVs case (supra) 

8. Hari Vishnu Kamath's case (supra). 

9. Bengal Immunity Co. v. State, AIR 1955 SC 66J ; Calcutta Discount Co. v, 
/. T. 0., AIR 1961 SC 372. 

10. Sales Tax Officer v. Budh Prakash, AIR 1954 SC 459 j Carl Still v. State of 
Bihar, AIR 1961 SC 1615. 

11. Bengal Immunity (supra) ; S. T. 0. v. Budh Prakash (supra); Himatlal's 
case (supra). 

12. R. v. JV. Tribunal, (1952) 1 All ER 122. 


Object. The object of the_ writ of^wrtiorari is_ to keep 
inferior courts andjr^gf.judidal authorities within the, limits of 
t-^n ; and IF they act ingxcgssof theirji 

decisions can be quashed by superipr courts by issuing thijLwjit . 13 

Conditions. In R. v. Electricity Commissioner^^ Lord Atkin 
observed : 

Whenever any body of persons having legal authority 
to determine questions affecting the rights of subjects and 
having the dut^jo^acj^^^c^y) act in excessof tneir legal 
authority they are subject to the controlling jurisdiction ol the 
King's Bench Division exercised in these writs. 15 ^ 

From these observations, it becomes clear that a writ of 
sertiorari (and prohibition) can be issued if the following mjitiris 
are fulfilled : v 

() The judicial or_^Mgjg-judicial body must have legal 

(if) Such authority must be an authority to determine 
questions affecting rights of subjects ; " 

" v" 

(Hi) It must have duty to act judicially ; and 
(to) It must have acted in excess of its authority. 

Grounds. A writ of certiorari may be issued on the following 
grounds : 

(i) Absence or excess of jurisdiction, or failure to exercise 

When an inferior court or tribunal acts without jurisdiction, 
in excess of its jurisdiction or fails to exercise jurisdictjpn vested 
in it by law, a writ j)f certiorarijnav be issued against it. 

In R. v. Minister of Transport^, even though the Minister 
was not empowered to revoke a licence, he passed an order of 
revocation of licence. The order was quashed on the ground 

13. T.C. Basappa v. T. Nagappa, AIR 1954 SO 440. 

14. (1924) 1 KB 171. 

15. Ibid, at p. 205. See also Lecture III (supra). 

16. (1934) 1 KB 277. Sec also S. T. 0. v. Shiv Ratan, AIR J966 SC 142; 
C. /. T. v. A. Raman, AIR 1968 SC 49; Chetkar v. Vishwanath, (1970) 1 
SCO 121 : AIR 1970 SC 1039. 


that it was without jurisdiction and therefore ultra vires r Under 
the provisions of the Industrial Disputes Act, 1947, the appropriate 
Government is empowered to refer an 'industrial dispute' to a 
tribunal constituted under the Act. But if the Government refers 
a dispute to the Industrial Tribunal for adjudication which is 
not an 'industrial ~cftspute* within the meaning of the Industrial 
Disputes Act, 1947, the Tribunal has no jurisdiction to entertain 
and decide such dispute. 17 Similarly, in absence of any provision 
in the relevant statute, after a man is dead, fiis property cannot 
be declared as an evacuet property. The decision of the authority 
would be without jurisdiction. 18 

Lack o ^jurisdiction may also janse from absence of some 
preliminary fact^which must exisLbe fore a ' Jnbunal ^exercises its 
jurisdiction They are known as jurisdictional j or 'collateral^ 

facts : The existence of these facts is a sine qua non or condition 

precedent to the assumption of jurisdiction by an inferior court 
or tribunal. If the jurisdictional fact does not exist, the court 
or the tribunal cannot act. |f an j^nferior__couirt or a tribunal 
wrongly assumesriTe existence of such a fact, a writ of certioran can 
be issued. The underlying principle is that by erroneously pfes"un> 
in~g~such existence, an inferior court or a tribunal cannot confer 
upon itself jurisdiction which is otherwise not vested in it under 
the law. 19 

State of M. P. v. D. K. Jadav 

Under the relevant statute all jagirs, including lands, forests, 
trees, tanks, wells, etc. were abolished and vested in the State, 
However, all tanks, trees, private wells and buildings on 'occupied 
land 9 were excluded from the provisions of the statute. If they 
were on 'unoccupied land 3 they stood vested in the State. The 
Supreme Court held that the question whether the tanks, wells, 
etc. wore on 'occupied* land or on 'unoccupied'' land was a 
jurisdictional fact. 

17. Newspapers Ltd. v. State Ind. Tribunal, AIR 1957 SC 532. 

18. Ebrahim Aboobaker v. Tek Chand, AIR 1963 SC 298. 

19. Raja Anmdv. Stale of U. P., AIR 1967 SC 1081: Naresh v. State of 
Maharashtra, AIR 1967 SC 1. 

20. AIR 1968 SC 1 186 : (1968) 2 SCR 823. 


Shauqin Singh v. Desa Singh 21 

The relevant statute empowered the Chief Settlement Com- 
missioner to cancel an allotment of landJjLbja^was "wtisfied*^ that 
the order of allotment was obtained by_mejinj[_of 'fraud, false 
reprje^ejijaJtioja-or conceal men tofany material fact*. 1The Supreme 
Court held that the satisfaction pfthe statutory aiithcrity was 
a jurisdictional fact *nd the power can be exercised only_on 


But if aj^nferiojcourt jor a tribunal acts within 
ifi it, the writctritowri cannot be issjie^ 

Aboobaker^^Custodiq^ G^iera^jhp Snpr^? Court 
observed : 

It is_plamthat such % writ cannot be granted to quash 
the decision ojalT^niferi^ its jurisdiction on 

IndeedTpTt ~must be 
shown before such a writ is issued that the authority which 
passed the order acted without jurisdiction or in excess of 
it.... 24 

(fif^Error apparent on the face of the record. 

Ifthere is an error oXlaw_^3vhich is apparent on the face of 
the^record, a decision of an inferior court or a tribunal may be 
qn^shfMJThy ,a writ ^ rer(inr/ip.. But such error 


or patent on the face of the proceedings and should not 
fequtfe"tb Be~^sTa5irsHed b)T^vrb!ence^ ^ut what is an error 
of law apparent on the face of the record? Even though precise 
and exhaustive definition is not possible, it may be stated that 
if an inferior court or a tribunal takes into account irrelevant 
not take lnTo~^c^xmtrelevant conside^ra- 


ti6hs~~rrr erroneously admits inadmissible evidence or refuses to 
admit admissible evideirce~rjrtf"^^ ot tact"""is~~based on 

no evidence, it can be said that there is such an error. In short, 

(1970) 3 SCC 881 : AIR 1970 SC 672. 

Sec also Munni Deii \. Gokal Chand, (1969)2 SCC 879 : AIR 1970 SC 
1727; Raja Anand v. Staff of U. P. (supra) ; JValini v. Ananda, AIR 1952 
Cal. 112; Natwarlal v, State oj Gujai at > AIR 1971 Guj 264: (1971) 12 
GLR 319. 

23. AIR 1952 SC 319 : (1952) SCR 696. 

24. Ibid, at p. 322 (AIR). 


'the imgjOgnd_con^ be so plainly inconsistent^ with 

the relevant statutory provision that no difficulty is experienced 
by the High Court in holding that the said error of law is 
apparent on the face of the recordVJ 5 _ " ===rr 

But an error of fact, 'however grave it may appear to be* 
cannot be corrected by a writ of certiorari.** Where two views 
are possible, if an T5IenoFcolini>F^ one view, it 

cannot be corrected by a writ of certiorari. Thus, in fjjjam Bai v. 
Stale of U. P. 27 , the question was one of interpretation oT~7f 
notification. By wrongly interpreting the said notification tax 
was imposed, which was challenged by the petitioner. The 
Supreme Court refused to interfere under Article 32 and observed : 

Where a quasi-judicial authority has jurisdiction to 
decide a matter, it does not lose its jurisdiction by coming to 
a wrong conclusion, whether it is wrong in law or in fact^* 9 
(emphasis supplied) * ~~ 

But SubbaRaoJL_[as he then was) rightly stated : "In a 
sense he (Sales Tax Officer) acts without jurisdiction in taxing goods 
which are not taxable under the Act". 29 (emphasis supplied) 

Violation of the principles of jmtural jiisitLC.e. 

A writ of certiorari can be issued when there is violation of 
the principles of natural justice. 80 

(iv) A writ of certiorari can also_JbjB. Js&ucd- -when- there is 
i^ringfinientjDf fundamental right jof the petitioner 31 or 
where the order pass.eLb.y ihfi-inferipr court or tribunal is 
mala fide, fraud ulent or otherwise unjust. 82 

Alternative remedy. A writ of certiorari is a discretionary 

25. Syed Takoob v. Radhakrishnan, AIR 1964 SO 477 (480). See also A. C. C. 
v. P. D. Vjas, AIR 1960 SC 665; Shaikh Mohammed v. Kadalaskar, (1969) 1 

SCO 74 1: AIR 1970 SC 6 1. 

26. Syed Takoob (supra), at p. 479. 

27. AIR 1962 SC 1621 : (1963) 1 SCR 778. 

28. Ibid, at p. 1629. 

29. Ibid, at p. 1653. 

30. See Lecture VI (supra). 

31. Ujjam Bai's case (supra) ; Himattat's case (supra); Sinha Govindji v. Dy. 
Chief Controller of Imports, (1962) 1 SCJ 93. 

32. Supra. See also Mohasinali v. State, AIR 1957 Bom 303, 


remedy and the fact that the aggrieved party has another adequate 
remedy may be taken into consideration and it_may_n2Lbe issued 
on tKaT^grpund. Tiut as discussed above, it is a rule of policy, 
convenience and discretion and not of jurisdiction and in spite of 
^ften^^ it may be issued where the 

order is on the face of it erroneous or the inferior court or tribu- 
nal has acted without jurisdiction or in excess of its jurisdiction 
or contrary to the principles of natural justice or there is infringe- 
menToTa fundamental right of the petitioner. ^ ^ 

Prohibition and certiorari : distinction. There are some com- 
mon features in both these writs. Both writs are available against 
a judicial or ^art-judicial body or any other '.authority* having 
^duty to^act^jiidicially* Tmt cannot be issued against a 'purely 
administrative* authority. The object of both these writs is also 
common, namely, restraining^ the inferior ' --- - ---' 
exceeding their jurisdiction. 33 

Yet there is a fundamental distinction. They are issued at 
different stages of the proceedings. As observed B^T^K 

Court in Hart Vishnu Kamath's case (supra) : "Whenjan L inferior 
court takes up foLhg_^ng^jnatter over whichjt has no Jurisdic- 
tion, the person against whom the proceedings are taken can 
move the superior court for a writ of prohibition, and on that, 
an order~~will isslie^lForbidding the Jnferior court from m con^inuing 
the proceedings. On the other hand, if the court hears that 
cause^or matter and gives a decision, the party aggrieved would 

have to jn^ve_thc_ jugrior court for a writ of 'certiorarPT and an 
order would bo made quashing the decision on the ground of 
want of jurisdiction^, 84 

Sometimes, both the writs might be necessitated. Thus, in a 
pr^ej?ding_J^fore an inferior ^ojurj^a decision might have been 
arrived at_whichjiid not completely dispose of the matter^in 
wmch^ case it might_ _bg,_negessary to ^ apply both for 
prohibition. Certiorari for quashing what hajd_bjpei^_dejriHpd ; 

33. Han Vishnu Kamalh v. Ahmad, AIR 1955 SO 233. 

34. Ibid, at P. 241. 


prohibition for ^restraining thejurther continuance of the proceed*^ 
ing^ ~ ^ *"~ 

V. Quo warranto 

Nature and scope. 'Quo warranto' literally means 'what 1& 
your authority^ The wntl>f quo warranto may be issued against 
the jiolder of aj public office of a substantive nature. By issuing 
this writ the person concerned is called upon to show to the Court 
by what authority he holds the office. If the holder h a * nr> 
authority to hold the office he can be ousted from its enjoyment. 36 
On the other hand, this writ also ^protects thejiolder of a public 
office from being deprived of that to which he may have a right . 87 
In University of Mysore v. Govinda Rao 98 , the Supreme TJourt 
observed : 

... [TJhe procedure of quo warranto confers jurisdic- 
tion and authority on the judiciary tojcontrol executive action 
in the matter of making appointmentsTtp public offices against 

the relcvant^atutt^^ protects a citizen 

being deprived oi public office to which he may have a 
right. 89 ~p ------- ---------------- - " -- 

ConditiojLL=r- Before thejvrit of quo warranto^can^b^h^uGd the 

following conHitinns must HP gatjsfipH : 

(t) The office must be ? public office. 40 Byjublic officeJte 
meant an office in which the public nave an interest. 
Before the writ can be issued the court imiiFB^aTIsSra 
that the office in question is a public office and the 
holder thereof has no legal authority to hold the said 
office. This writ will not lie in resect of ^office of__a 

35. Kamath's case (supra) ; R. v. Paddington Rent Tribunal, (1949) 1 All ER 720 
(729) ; R. v. Electricity Commissioner (supra). 

36. University of Mysore v. Govinda Rao, (infra). 

37. Ibid. 

38. AIR 1965 SC 491 : (1964) 4 SCR 575. 

39. Ibid, atp, 494 (AIR). 

40. Ibid. 

41. R. v. Mousley, (1846) 115 ER 1130; Amarendra v. Narendra, AIR 1953 
Cal 1 14 : Jamalbur Arva Samai v. Dr. D. Ram, AIR 1954 Pat 297. 


(it) The office must be of a Substantive character..! 2 The 
words 'substantive character' mean the office in ques- 
tion must be an independent^office,,^ The holder of 
such office must^Be an independent official and not 
merely a deputyjDr servant of others^ 48 s~ ^ 

(in) The office must be statutory or constitutional.^ JT 
a wnt-rfMg w$rranto rp^y fr fi i^iipH in rp?ppr*fr nf 

a High Court/ 6 Public Proser 

House of the State Legislatuj^JJ3X em bers of a nmnjci- 

P a ^ body ? 48a University officials, 48 ^ etc. . 

(iv) TheJiriMftr^jTiiist^^ 

Locus standi : Who may apply. As stated above, the 
object of the writ of quo warranto is to pervent a person who 
has wrongfully usurped a public office from continuing in that 
office. Therefore, anapplicatiofi f or ^j*__yi ri t f Q uo wMi&ntQ 
chaUenging thjg^Jggality_ggji^g1iHity_^ 

a publi^office is tnaintainable at the instance of any private 
though he isnot personally aggrieved or interested 
In G. Z). Karkare v. T. L. Shevde^jhe High 
Court of Nagpur observed : *~~ rtL '" ' ..... " ' ~ 

In proceedings for a writ of 'quo^Avarranto' the appli- 
cant does not seek to enforce any right of his as such, nor 

42. G. Rao's case (supra). 

43* Parley v. R., 8 ER 1513 (HL). 

@j) U. JV. Rao v. Mrs. Indira Gandhi, (1971) 2 SCC 63. 

45. G. D. Karkare 9 s case (infra). 

46. Chandra Prakash v. Chaturbhuj, C. A. 2231/1968 decided on Dec. 18, 1969 
(SC) (unrep). 

47. Mohambaran v. Jayavelu, AIR 1970 Mad. 63. 

48. A. Nesamony v. T. M. Varghese, AIR 1952 TO 66. 
48a. Shyabuddinsab v. Municipality ofGB, AIR 1955 SC 314. 
48b. G* Rao*s case (supra). 

49. Biman Chandra v. Governor of W. J5., AIR 1952 Cal; 799; Surendra Mohan 
v. Gopal Chandra, AIR 1952 Ori 359; Rajendra Kumar v. Government, AIR 
1957 MP 60; Nitya Nandv. Khalil Ahmed, AIR 1961 Pun 105; M. U. 

Shah v. Abdul Rehman, AIR 1953 All 193 ; Rex v. Speyer, (1916) 1 KB 595 ; 
G. Rao* 3 case (supra). 

50. AIR 1952 Nag 330 (331). See also Kashinalh v. StaU, AIR 1954 Bom 41. 


does he complain of any non-performance of^ duty towards 
him. What is in question is the right of the non-applicant to 
hold the office and an order that is passed is an order ousting 
him from that office. 

When may be refused. Quo warranto is a discretionary remedy 
and_the petitioner cannot IclaTm this writ as ol right. The 
court may refuse to grant this writ taking into account the facts 
and circumstances of the case. This may include instances where 
the issue of a writ would be vexacious^ 51 or where there was 
acauiscence on the part of the petitioner, 52 or where it would be 
futile as the holder of an officejias_ .. ceased^tojhold the jofflce^in 

A writ of quo warranto may also be refused on the ground that 
al ternative statutory remedy is available to the mstitioner. Thus, 
when a writ of quo warranto "was sought to be enforcedagainst a 
member of the State Legislature., it was refused on the ground 
that there was an alternative remedy by way of making an elec- 
tion petitionj 4 But_j__the objection taken by the petitionerjalls 
outsidethe_statutory remedy^ the existence of an alternative 
will be no bar to the writ of quo warranto. 66 

Writ of quo warranto may as well be refused in case of delay. 
The reason is simple and obvious. In Sonu Sampat v. Jalgaon 
Municipality 6 *, the High Court of Bombay observed : 

' If the appointment of an officer is illegal, every day 
that he acts in that office a fresh cause of action arises ; 
there can, therefore, be no question of delay in presenting 
a petition for quo warranto in which his very right to act in 
such a responsible post has been questioned s 

51. Rameshwar v. State of Punjab, AIR 1961 SC 816; Baij Rath v. State oj 
U. P., AIR 1965 All 151. 

52. Ruttonjee v. State, AIR 1967 Cal 450. 

53. Rameshwar v. State, (supra). 

54. Pundlick v. Mahadev, AIR 1959 Bom 2; Bhairulal v. State of Bombay, AIR 
1954 Bom 1 16 ; Deshpande v. Hyderabad State, AIR 1955 Hyd 36. 

55. Shiam Sunder v. State of Punjab, AIR 1958 Pun 128; Chaturvedi v. 
Chatterjee, AIR 1959 Raj 260. 

56. ILR 1958 Bom 113(126): 59 BLR 1088 (1096). See also Baijnath's 
case, (supra). See also Baijnath v. State (supra) ; Sonu Sampat v. Jalgaon 
Municipality, (1958) ILR Bom 113. 


Statutory remedies 

In addition to the prerogative remedies available to an_ indivl- 
du^un^^ticlesl^^TTd^2^of the Constitution of India, 
remedies^ are also prbvHed by _ diffierent- statutes to aggrieved 
persons. As the statutory provisions are not similar with regard 
to remedies provided, it is not possible to generalise the circum- 
stances in which the said remedies are available. But .they may 
be classified as under : 

(1) Ordinary civil suits; 

(2) Appeals to courts ; 

(3) Appeals to tribunals ; 

(4) Special leave to appeal to the Supreme Court ; and 
(5) High Court's power of superintendence. 

(1) Ordinary civil suits 

This is the traditional remedy available to a person to vindi- 
cate his legal right if he is aggrieved by any action of an adminis- 
trative authority. Section 9 of_the Code of Civil JPro^dure, 
190B_provides that courts shall have jurisdiction to try all suits 
of^a^civil nature excepting suits in which their cognisance is 
'either expressly or Impliedly barred. Thus, if ihe dispute is 
of a ( civil nature 3 , under Section 9. of the Code, a civil court can 
entertain, deal with and decide the said dispute, unless the 
jurisdiction of a civil court is barred either expressly or by 
necessary implication. In Smt. Ganga Bai v. Vijay Kumar 51 9 the 
Supreme Court observed : 

There is an inherent right in every person to bring a 
suit of civil nature and unless the suit is barred by statute 
one may, at one's peril, bring a suit of one's choice. It 
is no answer to a suit, howsoever frivolous the claim, 
that the law confers no such right to sue, A suit for its 
maintainability requires no authority of law and it is enough 
that no statute bars the suit. 68 

(2) Appeals to courts 

In a number of statutes provisions are made for filing appeals 
or revisions or making references to 'ordinary' courts of law 

57. (1974) 2 SCO 393: AIR 1974 SG 1126. 

58. Ibid, at p. 397 (SCO) : p. 1 129 (AIR) : toe also Lecture VII (supra). 


against the decisions taken by administrative authorities. For 
example, under the provisions of the Workmen's Compensation 
Act, 1923, a person aggrieved by the order passed by the Com- 
missioner may file an appeal in the High Court on a 'substantial 
question of law', 59 or an appeal lies to the High Court against 
the award made by the Motor Accident Claims Tribunal under 
the Motor Vehicles Act, 1939, 60 or a reference to the District 
Court is competent under the Land Acquisition Act, 1894 
against the award made by the Land Acquisition Officer, 61 or the 
High Court or the Supreme Court against the order passed by 
the Income Tax Appellate Tribunal under the Income Tax Act, 
1961.* 2 
(3) Appeals to tribunals 

Sometimes a statute creates an appellate tribunal and 
provides for filing an appeal against orders passed by the 
administrative officers in exercise of their original juris- 
diction. For example, under the Customs Act, 1962, an 
appeal against the order passed by the Collector of Customs lies 
to the Central Board of Customs and Excises, 63 or an appeal lies 
to the Rent Control Tribunal against the order passed by ths 
Rent Controller under the Delhi Rent Control Act, 1958, 64 or to 
the Copyright Board against any decision of the Registrar of Copy- 
rights under the Copyright Act, 1957. 6S Generally, at this stage, 
the jurisdiction of the appellate tribunal is not restricted and 
appeal can be heard on questions of fact and law. In many 
cases, further appeal on point of law is provided either to a 
tribunal or to a regular court of law. For example, a second 
appeal lies to the High Court against the order of the Rent 
Control Tribunal under the Delhi Rent Control Act, 1958 o 
substantial questions of law only. 66 

59. Section 30. 

60. Section HOD. 

61. Section 18. 

62. Ss. 256-262. 

63. S. 128. 

64. S. 38. 

65. S. 72. 

66. S. 39. Set also S. 30 Workmen's Compensation Act, 1923. 


(4) Special leave to appeal to the Supreme Court 

Position prior to 1976. Under Article 136 of the Consti* 
tution of India, a discretionary power is conferred on the Supreme 
Court to grant special leave to appeal from any judgment or 
order passed by any 'tribunal'. 

This provision confers very wide and plenary pawer on the 
Supreme Court. It is not subject to any limitation. Moreover, 
as the said power is constitutional, it cannot be diluted or 
curtailed by ordinary parliamentary process. The Supreme Court 
can grant special leave and hear appeals even though no statute 
makes provision for such an appeal, 67 or under the relevant statute 
an alternative remedy is provided, 68 or an order passed by the 
tribunal is made final. 69 

The rapid growth of administrative law has brought into 
existence many administrative tribunals and adjudicatory bodies. 
They are invested with wide judicial and quas /-judicial powers 
thereby necessitating effective control. With this object in mind, 
the framers of the Constitution have conferred very wide and 
extensive powers on the Supreme Court. 

Though this power is comprehensive and undefined, the 
Court has imposed certain limitations upon its own powers. This 
power is extraordinary and it should be exercised only in 
exceptional circumstances. 70 Thus, the Supreme Court would 
not ordinarily grant a leave against the order of a tribunal where 
the alternative remedy is available, 71 or finding of fact is 
challenged, 72 or the matter falls within the discretion of the 

67. Raigarh Jute Mills v. Eastern Rly., AIR 1958 SG 525. 

68. Mahadayal v. C. T. 0,, AIR 1958 SO 667; Master Construction Co. v. 
State of Bihar, AIR 1966 SC 1047; P. D. Sharma v. State Bank of India, 
AIR 1968 SC 985. 

69. See Lecture VII (supra). 

70. State of Maharashtra v. Dadaniya, (1972) 3 SCO 85: AIR 1971 SC1722; 
Union of India v. G. K. Apte, (1971) 3 SCO 460 : AIR 1971 SC 1533. 

71. State of Bombay v. Ratilal, AIR 1961 SC 1106; Ram Saran v. C. T. 0., AIR 
1962 SC 1326; Indian Aluminium Co. v.C.I. T., AIR 1962 SC 1619; 
C. /. T, v. JT t W. Trust, AIR 1967 SC 844. 

72. Basappa v. Nagappa, AIR 1954 SC 440: Tata Iron and Steel Co. v. Workmen, 
(1969) 2 SCC 3 19: AIR 1970 SC 390 ; Amarchand v. C.I. T., (1971) 1 
SCC 458: AIR 1971 SC 720. 


authority, 73 or where a new point is raised for the first time before 
the Supreme Court, 74 or where the petitioner is unable to show the 
presence of special circumstances to grant special leave. 75 

On the other hand, in the following circumstances the Supreme 
Court would entertain the appeal under Article 136 : 

(i) Where the tribunal has acted in excess of jurisdiction 
or has failed to exercise jurisdiction vested in it. 76 

(it) Where there is error apparent on the face of the 
record. 77 

(Hi) Where the order is against the principles of natural 
justice. 78 

(iv) Where irrelevant considerations have been taken into 
account 79 or relevant considerations have been 
ignored. 80 

(v) Where the findings of the tribunal are perverse. 81 
(vi) Where there is miscarriage of justice. 82 

73. UCO Bank v. Secretary, AIR 1953 SC 437 ; Registrar, Trade Marks v. Ashok 
Chandra, AIR 1955 SC 573 ; Bishamhar Wath v. State of U. P., AIR 1966 
SC 573; Union of India v. W. C. Paper Mills, (1970)3 SCC 606: AIR 
1971 SC 349. 

74. Bharat Fire and General Insurance Co. v. C. I. T., AIR 1964 SC 1800 ; Alembic 
Chemical Works v. Workmen, AIR 1961 SC 647; State Bank, Hyderabad v. 
V. A. Bhide, (1969) 2 SCC 491 : AIR 1970 SC 196. 

75. SoorajmullNagarmullv. C.I. T., AIR 1963 SC 491; Chandi Prasad v. 
State of Bihar, AIR 1961 SC 1703; Indian Aluminium Co. v. C. I. T., 
(supra) ; Govindarajulu v. C. I. T., AIR 1959 SC 248. 

76. J. K. Iron and Steel Co. v. Mazdoor Union, AIR 1959 SC 231 ; UCO Bank 
v. Workmen, AIR 1951 SC 230. 

77. Raj Krishna v. Binod, AIR 1954 SC 202 ; Rattan v. Atma Ram, AIR 1954 
SC 510; Hindustan Antibiotics v. Workmen, AIR 1967 SC 948. 

78. Dhakeswari Cotton Mills (infra) ; Muir Mills v. Suti Mills Mazdoor Union, 
AIR 1955 SC 170. 

79. Dhirajlal v. /. T. C., AIR 1955 SC 271. 

80. Standard Vacuum Co. v. Workmen, AIR 1961 SC 895. 

81. SurendraNath v. Dalip Singh, AIR 1957 SC 242; National Engineering 
Industries v. Hanuman, AIR 1968 SC 33; Sovachand v. C. 7. T., AIR 
1959 SC 59. 

82 . Dhakeswari Cotton Mills, (infra) . 


It is submitted that the correct principle is laid down by 
Mahajan, C. J. in Dhakeswari Cotton Mills v. C. /. T. 83 in the 
following words : 

It is not possible to define with any precision the limita- 
tions on the exercise of the discretionary jurisdiction vested 
in this court by the constitutional provision made in Article 
136, The limitations, whatever they be, are implicit in 
the nature and the character of the power itself. It being 
an exceptional and overriding power, naturally it has to be 
exercised sparingly and with caution and only in special 
and extraordinary situations. Beyond that it is not possible to 
fetter the exercise of this power by any set formula or rule. 84 

Position after 1976. The Constitution (42nd Amendment) 
Act 1976, has radically changed the position. Prior to the amend- 
ment the aggrieved person had other remedies available to 
him and the Supreme Court in those circumstances rightly did 
not grant special leave to appeal under Article 136. But by the 
42nd Amendment, the High Court's power of superintendence 
over tribunals has been taken away by amending Article 227 
and also by adding Articles 323A and 323B. Administrative 
tribunals have 'more or less" been placed in the position of 'final' 
adjudicatory bodies and therefore, it is not only the discretion- 
ary power but the duty of the Supreme Court to see that these 
tribunals exercise their powers within the limits of law and no 
injustice is done to the subjects. 

(5) High Court 3 s power of superintendence 

Position prior to 1976. Prior to the Constitution (42nd 
Amendment) Act, 1976, every High Court had jurisdiction under 
Article 227(1) of the Constitution over all courts and tribunals within 
its territorial jurisdiction. This power spanned both the adminis- 
trative and judicial spheres. As held by the Supreme Court, this 
article devolves on the High Court a duty to see that all tribunals 
act ''within the bounds of their authority, that they do what 
their duty requires and that they do it in a legal manner". 86 

83. AIR 1955 SC 65 : (1955) 1 SCR 941. 

84. Ibid, at p. 69 (AIR). 

85. Umarsahsbv. Ka-lilatkar, (1969) I SCO 741 : AIR 1970 SC 61; State of 
Gujarat v. Vaklittsinhji, AIR 1968 SC 1481 ; Nagendra Nath Bora v. Commr. 
Hills Dvn. Assam, AIR 1953 SC 12; Nibaram Chandra v. Mahendra, AIR 

* 1963 SC 1895. 


Thus, the High Court can interfere with the order passed by any 
inferior tribunal on the grounds, inter alia, of excess of jurisdic- 
tion, 86 or refusal to exercise jurisdiction, 87 where there is an 
error apparent on the face of the record, 88 in case of violation of 
the principles of natural justice, 89 where power or discretion is 
used arbitrarily or capriciously, 90 or where there is miscarriage 
of justice. 91 In a fit case, the High Court can act even suo motu** 

As stated above, the power of superintendence is only to be 
exercised to keep inferior tribunals within the ambit of their 
authority and jurisdiction. The High Court is not a regular 
court of appeal 93 or revision 94 over the decisions given by adminis- 
trative tribunals. It cannot correct any error of fact 95 or even 
of law. 98 The High Court cannot substitute its own decision 
for that of the tribunal. 97 

Position after 1976, By the Constitution (42nd Amend- 
ment) Act, 1976 the supervisory jurisdiction of the High Court 
over all administrative tribunals has been taken away by deleting 
the word * tribunals' from clause (1) of Article 227. After the 
amendment, High Courts have no jurisdiction over these tribunals 
and their decisions cannot be tested by the High Courts under 
Article 227. (It may, however, be mentioned at this stage that 
an administrative tribunal is an ( authority * within the meaning 
of Article 226 of the Constitution, and therefore, the decision 
given by the tribunal is subject to the jurisdiction of the High 
Court under Article 226 It may further be rioted that the 

86. Rukumanand v. State ofBihat, (1971) 1 SCO 167 : AIR 1971 SO 746. 

87. Dahya Lala v. Rawl Mohd., AIR 1964 SC 1320. 

88. Vakhatsinhji's case (supra). 

89. Santosh v. Mool Singh, AIR 1958 SC 321. 

90. Ibid. 

91. D. N. Banerjee v. P. R. Mukherjee, AIR 1953 SC 58. 

92. Ahmedabad Mfg. Calico Ptg, Co. Ltd. v. Ramtahel, (1972) 1 SCO 898: AIR 
1972 SC 1598. 

93. Bhutoath v. State of W. B., (1969) 3 SCO 675. 

94. Rajkamal v. Indian Motion Pictures Union, (1965) 1 1 SCWR 233, 

95. Babhutmal v. Laxmibai, AIR 1975 SC 1297 : (1975) I SCC 858. 

96. Maruti v. Dashrath, (1974) 2 SCC 615 : AIR 1974 SC 2051. 

97. D. C. Works v. State of Saurashtra, AIR 1957 SC 274; Filmistan (Pot.) Ltd. 
v. Balkruhna, AIR 1972 SC 171 : Lonad Gram Panchayat v. Ramgin, AIR 
1968 SC 222. 


Constitution (44th Amendment) Act, 1978, has restored the 
original position in respect of the supervisory jurisdiction of the 
High Court under Article 227 over all administrative tribunals. 
Equitable remedies 

As discussed above, against any arbitrary action of administ- 
rative authorities generally prerogative remedies are available to 
the aggrieved persons. But apart from England, U. S. A. and 
India, the said remedy is not pressed into aid in other countries. 
Moreover, issue of writs is an extraordinary remedy and is subject 
to the discretionary power of the Court. In these circumstances 
ordinary equitable remedies can be obtained against the administ- 
ration. Here, the following remedies are available to theaggrieved 
person : 

(1) Declaration ; and 

(2) Injunction. 

(1) Declaration 

In a declaratory action, the rights of the parties are declared 
without giving any further relief. The essence of a declaratory 
judgment is that it states the rights or the legal position of the 
parties as they stand, without altering them in any way though it 
may be supplemented by other remedies in suitable cases. 98 The 
power of a court to render a purely declaratory judgment is parti- 
cularly valuable in cases where a legal dispute exists but where no 
wrongful act entitling either party to seek coercive relief has been 
committed. By making an order declaratory of the rights of the 
parties the court is able to settle the issue at a stage^before the 
status quo is disturbed. Inconvenience and the prolongation of 
uncertainty araavoided." 

In the field of administrative law, the importance of decla- 
ratory action cannot be underestimated, de Smith 1 states: "A 
public authority uncertain of the scope of powers which it wishes 
to exercise but which are disputed by another party may be 
faced with the dilemma of action at the risk of exceeding its 
powers or inaction at the risk of failing to discharge its responsibili- 
ties, unless it is able to obtain the authoritative guidance of a 

98. Wade : Administrative Law (1977) p. 499. 

99. de Smith : Judicial Review of Administrative Action, (1973) p. 424. 
! Ibid, at p. 425. 


court by bringing a declaratory action. It is equally for the 
public benefit that an individual whose interests are immediately 
liable to sustain direct impairment by the conduct of the Adminis- 
tration should be able to obtain in advance a judical declaration 
of the legal position". 

The distinction between a declaratory order and other judicial 
order lies in the fact that while the latter is enforceable, the 
former is not. In private law this is a serious defect ; in public 
law it is insignificant, as c no administrative agency can afford 
to be so irresponsible as to ignore an adverse decision of a High 
Court judge'. 2 

Barnard v. National Dock Labour Board 9 

In this case, some dock workers had been suspended from em- 
ployment. Their appeal to the tribunal failed and they were 
dismissed from employment. In actions for declarations, discovery 
was ordered. It was revealed at that time that their suspension 
and dismissal were not in accordance with law. Ultimately, 
they succeeded. Had they applied for ccrtiorari, they would 
probably have failed. 4 

Similarly, a declaration can be sought by the plaintiff that 
his nomination paper at a municipal election has been illegally 
rejected 5 or that an order compulsorily retiring him is illegal 
and ultra vires.* 

This is a discretionary relief and the object of granting 
declaration is removal of existing controversy and to avoid chances 
of future litigation. The courts are not acting as 'advisory* 
bodies and they can refuse to grant declaration if the question 
is academic and has not actually arisen. Thus, in Re Bernato v. 
Sanges 7 , when trustees desired to ascertain whether, if they took 
certain steps, the trust fund would be liable to estate duty, and 
posed a hypothetical question of law the prayer for declaration 

2. Garner: Administrative Law, (1963) p. 149. 

3. (1953) 2 QB 18. 

4. Wade: Administrative Law, (1977) pp. 553-54. 

5. Sat Narain v. Hanuman Prasad, AIR 1946 Lah 85. 

6. Union of India v. Kedewwar, AIR 1959 HP 32. 

7. (1949) 1 All ER 515. 


was refused. Bat in Bai Shri Vaktuba v. Thakort*, the plaintiff- 
husband prayed for declaration that a boy aged two years born to 
ths defendant- wife was not his son and to restrain his wife from 
proclaiming him to ba such son and claiming maintenance in that 
behalf. In spite of the objection by the wife that the suit was 
premature as neither maintenance nor rights in the plaintiff 's 
property were being claimed, the declaration was gran-ted. But 
if no controversy has arisen, the court will not grant declaration 
in vacuum, As early as in 1847, Bruce, V. G. 9 rightly observed : 

Nakedly to declare a right, without doing or directing 
anything else relating to the right, does not, I conceive, 
belong to the functions of this Court. 

Section 34 of the Specific Relief Act, 1963 provides for a 
declaratory action in respect of any legal character or any right 
as to any property where it is questioned. 

Generally, a declaration cannot be obtained without praying 
for consequential relief. The proviso to Section 34 of the 
Specific Relief Act requires the plaintiff to claim further relief if 
he can. The object of the said provision is to avoid multiplicity 
of proceedings. If the consequential reliefs are not claimed 
by the plaintiff, tFn suit for declaration is liable to be dismissed. 

(2) Injunction 

Definition. An injunction is an order of a court addressed to a 
party to proceedings before it, requiring him to refrain from 
doing, or to do a particular act. 10 

Injunction is an equitable remedy. It is a judicial process 
by which one who has invaded, or is threatening to invade the 
rights, legal or equitable, of another is refrained from continuing 
or commencing such wrongful act. 11 

Injunction are of two types : 
() Prohibitory injunction ; and 

8. (1910) 34 ILR Rom 676. 

9. Clough v. Ratclife, (1847) 1 De G. & S. 164 (178-79). 

10. de Smith (supra), p. 388. 

11. 'Manjuralv. B. Banerjee, AIR 1954 Cal 202. 


(ii) mandatory injunction. 

Sometimes, prohibitory injunction is also divided into two 
categories (a) Temporary in junction and (b) Perpetual injunction, 

Generally, injunction is a negative remedy and in administra- 
tive law, it is granted when an administrative authority does or 
purports to do anything ultra vires. But in some cases the remedy 
may be positive and mandatory in nature and an administrative 
authority may be ordered to do a particular act which it is bound 
to do. But mandatory injunctions are rare, and in particular 
they play little part in public law because there is a special 
procedure for enforcing the performance of a public duty in the 
prerogative remedy of mandamus. 12 

Metropolitan Asylum District v, //i// 13 

In this leading case, the relevant Act empowered the author- 
ity to build a hospital for children for treatment of small-pox. 
A prohibitory injunction was obtained by the neighbouring 
inhabitants on the ground of nuisance. 

Harrington v. Sendall u 

The plaintiff was not present at a general meeting of the 
club. A majority of the members, in breach of the rule of the 
club (which made unanimous concurrence a prerequisite) increased 
the annual subscription for existing members. As the plaintiff 
did not pay the increased subscription, ho was expelled. An 
injunction was granted to prevent such expulsion. 

Administrator of the City of Lahore v. Abdul Majid 16 

In this case, the plaintiff submitted a building plan to the 
municipal authorities for necessary permission. The permission 
was initially granted but thereafter revoked even though such 
permission was granted in respect of other buildings. The order 

12. Wade: Administrative Law, (1977) p. 491. 

13. (1881) 6 AC 193. 

14. (1903) 1 CH921. 

15. (1947) ILR Lah 332. Sse aho Montgomery Municipality v. Sant Singh, AIR 
1940 Lah 377. 


of mandatory injunction was issued against the municipal 

An injunction is a discretionary remedy, but the discretion 
must be exercised judicially. The plaintiff must be 'an aggrieved 
person*. Since this is an equitable relief it may not be granted 
if the conduct of the plaintiff disentitles him from the assistance 
of the court or if some alternative remedy is available to him. 
But if there is violation of any provision of law, the courts will 
not hesitate to take the 'drastic step* of issuing an order of 
injunction, and they will not be deterred by the fact that it will 
bring the machinery of the government to a standstill. "Even 
if chaos should result, still the law must be obeyed/* 16 

In India, the law relating to temporary injunction is laid 
down in Order XXXIX of the Code of Civil Procedure, 1908, 
perpetual injunction in Sections 36, 37 and 38 of the Specific 
Relief Act, 1963 and mandatory injunction in Section 39 of the 
said Act. 
Common law (Remedies 17 


Other remedies may also be sub-divided into the following 

v^f Parliamentary remedies ; 

(2) Conseil d 3 Etat ; 

(3) Ombudsman ; and 

(4) Self-help. 

JLet us consider each of them in detail : 

/) Parliamentary remedies 

England and Indiajire d(^ 

is effective control of the 

the Executing-*- Trie Ministers are responsible to 
Se Parliament. As Lord Kilmuir 18 said : "Criticising a Minister's 
policy is a matter for Parliament**. Therefore, as Garner 19 

16. Per Lord Denning, M. R. in Bradbury v. Enfield London Borough Conncil, 
(1967) 1 WLR 1311. 

17. See Lecture X (infra). 

18. In the House of Lords on Dec. 7, 1961 . 

19. Administrative Law, (1963) p. 88. 



, hhe 'natural' remedy open to a subject aggrieved as a 
qfence jofa policy~i!icis^^ agency^of Govern- 



ment , is for him to write to 

attempt" to obtain redress^ 


Member of Parliament 

n an 

THe""j^mber jnay then raise the 

matter infori^Ujrwhh the Minister concerned, or formally 

al ly Tiy~~ques f ion or exceptionally on a 

motion for adjournment of the^ House 5 or in the course of a Supply 
"Debated Where the grievance is considered to be of sufficient 
puBIicr imporfan^eT^the member may press for a special court of 
^ under the Tribu' 

nals of Inquiry (Evidence) Act, 1921. 

Even this_Parliamentary procedure is^ not {reejfrom defects, 
jarTef!ectTveTnstrument in theory, many .defects 
patent in its ejcfims^ 

^fter the complaint has been made by the aggrieved 
person to the member, the result depends very largely 
k on the persistence, ability and status of the said 

the member is of the opposition party, he may 
attack the Minister vigorously, but his protests would 
be much milder if he belonged to the ruling party. 

if the member is a leader of the opposition 
party or a member of opposition's c Shadow Cabinet', 
there are greater chances of^ttin^substantial results 
but it would not be so in _casfiL_oiLan 'qbscurejback- 

V^ ~, . _ ~~ . ___-- ~ ~ ~ - - --_ 


the course of discussion in the House, political 
considerations may affect the issue to such an extent 


be forgqtten : ~and the complainant may not get 
appropriate relief. 

is awide range_Q_administratiye activity and 
no inister can be held responsible for decisions talen 
by public corporations and other local authorities. 

20. Ibid, at pp. 89-90. 


^ the 

sphere of responsibility of the Minister concerned an<| 
"fie undertakes to investigate the matter, the process of 
a remeHy Is slow and^cumbef som 

members are too busy or preoccupied with other 
^interests, to be able t<^ spare "jFe time"f^ jgursue a 

art, of course, many exceptions to this observation, but it is 
certainly no fault of the original complainant if his member is 
not one of the exceptions 21 ' 3 , (emphasis supplied) 

Caypnl d> Etqt ^ 
In France, there are two types of laws and two sets of courts 
independent of each other. 22 The ordinary law courts administer 

courts administer the law as between the subjects and the State. 
Although, technically speaking Conseil d* Etat is a part of the 
adminis trationpln"^prac tice and reality it is "Vefy 
The actions of the -admmstrtm -arerTrnmune 

contrpr^TtESlnstitution . jjjs staffed [by judges ajid professipaal 
experts. In Fact^ Gonseil d 9 Etat provides expeditious and inex- 
pensive relief #]KH>etter protection to the subjects against admiriis- 
Jrative acts or omissions than the common law courts. It has 
?i!>iiany_,^^^ remedium and afforded 

relief not only in cases of injuria sine damno but also in cases of 
damnum sine injuria. 22 

(3) Ombudsman 

Meaning 'Ombudsman' means 'a delegate, agent, officer or 
commissioner*. A precise definition of 'Ombudsman' is not 
possible, but Garner 23 rightly describes him as 'an officer of 
Parliament, having as his primary function, the duty of acting as 
an agent for Parliament, for the purpose of safeguarding citizens 
against abuse or misuse of administrative power by the executive'. 

In Justice Report, 2 * it is observed : 

He is not a super-administrator to whom an individual 

21. /to/, at p. 90 

22. For detailed discussion see Lecture II (supra). 

23. Administrative Law, (1963) p. 91. 

24. Para 18 (quoted by Garner). 


can appeal when he is dissatisfied with the discretionary 
decision of a public official in the hope that he may obtain a 
more favourable decision. His primary function .. \ . is to 
investigate allegations of maladministration. 

This institution originated in Sweden in 1809 and thereafter 
it has been accepted in other countries including Denmark, 
Finland, New Zealand, England (Parliamentary Commissioner) 
and India (Lokpal and Lokayukta). 

TheOmbudsman enquires and investigates into complaints 
made l>^a^ei^^auislabii&e_,of discretionary^power, maladminis- 
tration or administrative inefficiency and takes appropriate 
acdpjas^ITFbr that purpose, very wide powers are conferred on 
him. He has access to departmental files. The complainant is 
not required to lead any evidence before the Ombudsman to 
prove his case. It is the function and duty of the Ombudsman 
to satisfy himseirwhether 1 the complaint was justified or unjustified, 
tan 6V6n act suomotu. He can gram relief to_the_aggrieyed 
rg r\Qj^Jjmited unlike the powers of a 

civil cour 

Generally, the Ombudsman is a judge or a lawyer or a high 
officer and his character, reputation and integrity are aboveboard. 
He is appointed by the Parliament and thus, he is not an officer 
ihTfle^dminijitrative hierarchy. He is above party politics and 
is in a position to think and decide objectively. Tb^pe-ihrno iate*- 
ferencejiyen by Parliament in the discharge of his duties. He 
makes a report to the Parliament and sets out reactions of citizens 
against the administration. He also makes his own recommen- 
dations to eliminate the causes of complaints. Very wide publi- 
city is given to those reports. All his reports are also published 
in the national newspapers. Thus,, in short, he is the /watch-dog', 
or 'public safety yalye* againstFmaladrninistration. 

Defects : criticism 

Of course, there are some arguments against setting up of the 
office of the Ombudsman. 25 

(f) It is argued that this institution may prove successful 
in those countries which have a comparatively small 

25. Garner : Administrative Law, (1963) p. 91 


population, but it may not prove very useful in popu- 
lous countries, like U S. A. or India, as the number 
of complaints may be too large for a single man to dispose 

(it) It is also said that the success of the institution of 
Ombudsman in Denmark owes a great deal to the per- 
sonality of its first Ombudsman Professor Hurwitz. He 
took a keen interest in the complaints made to him and 
investigated them personally. Prestige and personal 
contact would be lost if there are a number of such 
officers, or if there is a single officer who has always to 
depend upon a large staff and subordinate officers. 

(iii) According to Mr. Justice Mukherjea, 20 in India this 
institution is not suitable. He describes it as 'an accu- 
satorial and inquisitorial institution a combination 
unprecedented in democracy with traditions of indepen- 
dent judiciary 3 . It is an 'impracticable and disastrous 
experiment' which will not fit into the Indian Gonsti- 

An aggrieved person is also entitled to resist an illegal or 
ultra vires order of the authority. If any person is prosecuted or 
any action is sought to be taken against him, he can contend that 
the by-law, rule or regulation is ultra vires the power of the autho- 
rity concerned. In case of 'purported' exercise of power he may 
disobey the order passed against him, 

Benjamin Curtis, a former Judge of the Supreme Court of the 
United States, while arguing before the Senate on behalf of Presi- 
dent Andrew Johnson during the latter's impeachment trial, 

I am aware that it is asserted to be the civil and moral 
duty of all men to obey those laws which have been passed 
through all the forms of legislation until they shall have been 
decreed by judicial authority not to be binding; but this is 
too broad a statement of the civil and moral duty incumbent 
either upon private citizen or public officers. If this is the 

26. Quoted by S. Rajgopalan: Administrative Law, (1970) p. 55 


measure of duty there never could be a judicial decision that 
a law is unconstitutional, inasmuch as it is only by dis- 
regarding a law that any question can be raised judicially 
under it. I submit to senators that not only is there no such 
rule of civil or moral duty, but that it may be and has been 
a high and patriotic duty of a citizen to raise a question 
whether a law is within the Constitution of the country. 

This view has been adopted by the California Supremo 
Court. One T entered the country unlawfully. He was, there* 
fore, arrested by the Dy. Sheriff without authority to arrest, f 
escaped from the custody, and his abettor in the escape was 
convicted by the lower court. Reversing the order of conviction, 
the California Supreme Court held that since the order of impri- 
sonment was unlawful, the escape was no offence. 

Nauoafrkhan v. State of Gujarat^ 

~Iintnrca^"lS"o>r3er of externment was passed against the 
petitioner on September 5, 1967 under the Bombay Police Act, 
1951. In contravention of the said order, the petitioner re- 
entered the forbidden areacm September 1 7, 1967 and was, therefore, 
prosecuted for the same... During the pendency of this criminal 
case, thelSternment order was quashed by the High Court under 
^ 16, 1 968, The 

*ke petitioner but the High Court convicted 
him, because accor3mg~to thejffijji^ 

oTthe^externment o73^r~Too^piace when the order was still 
operative and waTnqt quashed _by the High Court. Reyersing 

..Court,. the^Supreme Court held that 

as the externment order was illegal and unconstitutional^ H was 
oFno effect and the petitioner was never guilty of flouting ''an 
order which never legally exist ecP. 

Stroud v. Bradbury 

In this case, the Sanitary Inspector entered the house of tha 
appellant under the provisions of the Public Health Act, 1936. 

27. Kadish and Kadsih : Discretion to Disobey, Quoted in Nawabkhan v. State 
of Gujarat (infra). See also I. P. Masscy : Discretion to Disobey Invalid 
Orders: (1978) 1 SCO (Journal Section) p. 32. 

28. (1974) 2 SCC 121 : AIR 1974 SC 1471. 

29. (1952)2 All ER 76, 


Even though there was a provision regarding giving of prior notice, 
this requirement was not heeded by the inspector. The appellant 
obstructed the entry of the Sanitary Inspector. The Court held 
that the appellant had the right to obstruct the entry of the 
inspector as 'the Sanitary Inspector had not done that which the 
statute required him to do before he had a right of entry \ 

Kesho Ram v. Delhi Administration** 

The Section Inspector of the Municipality went to the house 
of the appellant in the discharge of his duty to seize the appellant's 
buffalo as he was in arrears of milk tax. The appellant struck the 
Inspector on the nose causing a fracture. A criminal case was, 
therefore, filed against the appellant. The appellant's main conten- 
tion was that the recovery of the tax was illegal inasmuch as no notice 
of demand as required by the statute was given to him. Negativing 
this contention, the Supreme Court held that the Inspector was 
acting in good faith and was honestly exercising his statutory duty 
and had * sadly* erred in the exercise of his powers. According 
to the Court, the Inspector 'could not be fairly presumed to 
know that a notice. .. .must precede any attempt to seize the 
buffalo' and therefore, the right of private defence was not 
available to the appellant. Although it appears that the 
Bradbury decision was not brought to the notice of the Court, 
it could have been distinguished on the ground that in that 
case, the appellant had merely obstructed the entry of the Inspector, 
whereas in the case before the Supreme Court, the appellant 
had assaulted the Inspector. Had he merely obstructed the 
entry of the Section Inspector, prpbably, relying upon the Bradbury 
decision, he could have justified his action, contending that 'the 
Section Inspector had not done that which the statute required 
him to do before he had a right of entry'. 

80. (1974) 4 SCO 599: AIR 1974 SO 1158. 

Lecture X 

The King can do no wrong. 

The King must not be under man, but under God and the wla t 
because it is the law that makes the King. 


1. Introduction 

2. Contractual liability 

(a) Constitutional provisions 

(b) Requirements 

(c) Effect of non-compliance 

(d ) Effect of a valid contract 

(e) (>M<w-contractual liability : the doctrine of unjust enrichment 

3. Tortious liability 

The doctrine of vicarious liability 
(a) In England 
(b} In India 

(t ) Constitutional provisions 
() Sovereign and non- sovereign functions 

(a) Before the commencement of the Constitution 

(b) After the commencement of the Constitution 
(lit) Teit 

4. Whether the State is bound by a statute 

(a) English law 

(b) Indian law 

5. Estoppel against the Government 

(a) Principle explained 

(b) Application of the doctrine 

(i) Traditional view 
(it) Modern view 

(c) Estoppel against a statute 

6. Crown privilege 

(a) In England 

(b) In India 

7. Miscellaneous privileges of the Government 

[247 ] 



In England, in the eye of law the Government was never 
considered as an 'honest man'. 1 Wad^/rightly states: "It is 
fundamental to the rule of law that the Crown, like other public 
authorities, should bear its fair share of legal liability and be answer- 
able for wrongs done to its subjects. The immense expansion of 
governmental activity from the latter part of the nineteenth 
century onwards made it intolerable for the Government, in the 
name of the Grown, to enjoy exemption from the ordinary law". 
English law has always clung to the theory that the King is subject 
to law and, accordingly answerable for breach thereof. As far 
as 700 years ago, Bracton^ had observed: "The King must not 
be under man, but under God and under the law, because it is the 
law that makes the King". 

Though theoretically there was no difficulty in holding 
King liable for any illegal act, there were practical problemsdL 
Rights depend upon remedies and there was no human agency 
to enforce law against the King. All the courts in the country 
were his courts and he could not be sued in his own courts without 
his consent. He could be plaintiff but never be made defendant. 
No writ could be issued nor could any order be enforced against 
him. As ' the King can do no wrong* ', whenever the administration 
was badly conducted, it was not the King who was at fault but 
his Ministers, who must have given him faulty advice^/ But after 
the Crown Proceedings Act, 1947, the Crown can now be 
placed in the position of an ordinary litigant, 

In India, history has traced different path. The maxim 'the 
King can do rid wrong* has never been accepted irjjhidia. ^ The 
Union and thg^ States _ggglgggl P er S*i!P 8 -3^ they t can be held 
liable for breach of contract and in tort. They can file suits 
and suits can be filed against them. 

1. GARNER: Administrative Law, (1963) p. 215. 

2. WADE : Administrative Law, (1977) pp. 663-64. 

3. Ibid. 

4. ^GARNER (supra). 



(a) Constitutional provisions 

The contractual liability of the Union of India and States is 
recognised by the Constitution itself^Xrticle 298 expressly provides 
that the executive power of the Union and of each State shall 
extend to the carrying on of any trade or business and the 
acquisition, holding and disposal of property and_jhe making 
of contracts for any purpose. 7 

(b) Requirements 

^Arfjrjp 999(1) prescribes the mode orjrnanner of _ execution^ of 
sucli con tracts^! t provMesJizr=> ~ 

All contracts made in the exercise of the executive 
power of the Union or of a State shall be expressed to be 
made by the President, or by the jGoyejrnor^ofj^^ 
as the case may be, and all such contracts and all assurances 
of property made in the "exercise of that power shall be 
executed on behalf nfjthejresident or the Governor by such 
fpersonsland in such^nianneQ as he^niay direct or authorise 

Reading the aforesaid provision, it becomes clear that it lays 
down the following conditions and requirements which contracts 
made by or with the Union or a State must fulfil 

(1) All such contracts must be expressed to be made by the 
President or the Governor as the case may be ; 

(2) All such contracts are to be executed by such persons 
and in such manner as the President^ or the Governor 
may direct or authorise ; and 

(3) All such contracts made in the exercise of the executive 
power are to be executed on behalf of the President 01 
the Governor as the case may be. 

contract to be valid under Article 299(1) must_bejm 
writujjg; The words 'expressed to be made' and ^executed* in this 
ticle clearly go to show that there must be a formal written 
con tract executed by a duly ' 

Arts. 294, 298, 299 and 300. 

Bhikraj Jaipuriav. Union of India, AIR 1962 SC 113; Karamshi v. State of 
HotMay, AIR 1904 SG 1714, Chattwbhuj v. Moreshwar, AIR 1954 SC 236; 
Thavardarv. Union of India, AIR 1955 SC 468; New Marine Coal Co. v. 
Union of India, AIR 1964 SC 152. 



if there is an oral contract, the same is not binding on the govern- 
ment. 7 This does not, however, mean^ that there, must hft a 
iorrhal agreement propejjy signed by a ..duly authored ^officer 
of the Government and jjie second party. The words 'expressed* 
and 'executed* have not been literally and technically construed^ 
In Chatturbhuj Ifithaldas v^Mm&sluMLParashram*^ r speaking for the 
Supreme Court, Bose, J. observed : 

It would, in our opinion, be disastrous to hold that the 
hundreds of Government officers who have daily, to enter 
into a variety of contracts, often of a petty nature, and 
sometimes in an emergency, cannot contract orally or 
through correspondence and that every petty contract must 
be effected by a ponderous legal document couched in a 
particular form . . . 

In Union of India v. A. L. Rallia Ram 9 ^ tenders were invited 
by the Chief Director of Purchases, Government of India. R'* 
tender was accented . The letter of acceptance was signed^ by 
the Director. The question before the Supreme Court was whe- 
ther the provisions of Section 175(3) of the Government of India 
Act, 1935 (whicj^were in part materia with Article 299(1) of the 
Constitution of India) wenM^n^ The Court held that 

the Act did not expressly provide for execution ofjjk foonal 
contract-^^rfTabsence of any specific direction by the Governor- 
General, prescribing the manner or mode of entering into 
contracts, a valid contract may result from the correspondency 
between the parties. The same view was reiterated, by the 
Supreme Court in Union of India v. JV. K. ^J^d J ^ J where the 
Court observed : 

It is now well settled by this Court that though the 
words 'expressed* and 'executed* in Article, 299 Til might 
suggest that it should be by a deed or by a formal written 
contragj^a binding contract by tender and acceptance can 

7. Karawhi'scz&t (supra). 

8. AIR 1954 SO 236 (243) : 1954 SCR 817 (835). 

9. AIR 1963 SO 1685: (1964) 3 SCR 164. 
NX (1973) 3 SCC 388 : AIR 1972 SC 915. 


also come into existence if the acceptance is by a erson dul 
authorised on this Eehalf_by the President ot 

second n>gmrprypnt is th?t gn ch a contract can be 
entered into on behalf of the Gny^nmpnt by a person authorised 
for that purpose by the President or the Governor as the case 
may be^ If it isjsigned by an officer who is_no^authorised by 
the President orGovernorj^Kr^sai^ contract is not binding on 
the Government and it cannot be enforced againsf it. 

In Union of India v. JV. K. Pvt. Ltd, (supra), the Director 
was authorised to enter into a contract on behalf of the President. 
The contract was entered into by the Secretary, Railway Board. 
The Supreme Court held that the contract was entered into by 
an officer not authorised for the said purpose and it was not a 
valid and binding contract. 

Bhikraj Jaipuria v. Union of India 12 ^y 

Certain contracts were entered into between the Government 
and the plaintiff-firm. No specific authority had^eenjspnferred 
on the Divisional Superintendent, East India Railway to enter 
into such contracts^ In pursuance oftHe cbnfractsthe firm 
tendered large quantity of food grains and the same was accepted 
by the Railway Administration^ But after some time, the Railway 
Administration refused to take delivery of goods. It was contend- 
ed that the contract was not in accordance with the provisions of 
Section 175(3) of the Government of India Act, 1935__and, there- 
fore, it was not valid and not binding on the Government. 
The Supreme Court, after appreciating the evidence oral as 
well as documentary held that tl^pivisional_SuMJntendent 
acting under the authority granted to him could enter into the 
contracts. TEe Court rightly Keld that it was not necessaTythat 
sudE authority could be given 'only by rules expressly framed 
or by formal notifications issued in that behalf V 3 

11. Ibid, at p. 39* (SCO) : p. 919 (AIR). See also D. G. Factory v. State of 
Rajasthan (infra). 

12. AIR 1962 SO 113 : (1962) 2 SCR 850. 

13. Ibid, at p. 118: But ultimately the Court found that the contracts were 
not expressed to be made on behalf of the Governor-General and hence 
were unenforceable. 


State of Bihar v. K. C. Thapar 1 * ^ 

The plaintiff entered into a contractjwith the government of 
Bihar for construction of an aerodrome and other W9rks. jAfter 
some vyork, a dispute arose with regard to payment of certain. 
bij|g* Ft was ultimately agreed to refer the matter for arbitration. 
The said agreement was expressed to have been made in the 
name of the Governor and was signed by the Executive Engineer. 
After the award was made, the Government contended in civil 
courtjthat the Executive Engineer was not a person authorised 
to enter into the contract under the notification issued by the 
Government^ and therefore, the agreement was void. On a 
consideration of the correspondence produced in the case, the 
Supreme Court held that the Executive Engineer had been 'special 
authorised 3 by the Governor to execute the agreement for refer en< 

The last requirement is that such a contract must be ex- 
pressed in the name of the JPrj^idfinJLxu^4he. Governor, -as the case 
mayjieu- Thus, even though such a contract is made by an officer 
authorised by the Governmentjn thisbehalf. it is still not enforce- 
able against the Government if it is not expressed to be made \ [on 
behalf of the President or the Governor. 

In Bhikraj Jaipuria's case (supra) , the contracts entered into 
by the E)ivlsional SuperintendentT^were not expressed to be made 
on behalf of the Governor-General. Hence, the Court held that 
they were not enforceable even though they were entered into by an 
authorised person. 

Kammshi^eth^bhaj y. State of Bombay n \^jr 

The plaintiff was in possession of a cane farm. An agreement 
was entered into J^etween the plaintiff and the Government Jor 
supply of canal water to the land of the former. ,No format 
contract was entered into jn the name of the^(jovernor but two 
letters were written by the Superintending Engineer. The 
Supreme Court held that the agreement was not in accordance 

14. - AIR 1962 SO 110: (1962) 1 SCR 827. 

15. AIR 1964 SC 1714: (1964) 6 SCR 984. 


with the provisions of Section 175(3) of the Government of India 

Act, 1935 and, consequently, it was_yjpjd. 


D. G. Factory v-jState o f Ra iasthan i**^ 

A contract was entered into by a contractor and the Govern* 
ment. The agreement was signed by the Inspector-General of 
Police, in his official status without stating that the agreement 
was executed 'on behalf of the Governor '. In a suit for damages 
filed by the contractor for breach of contract, the Supreme Court 
held that the provisions of Article 299(1) were notjcpmplied with 
and the contract was not enforceable. 

(c) Effect of non-compliance ^ 

The provisions of Article 299(1) are mandatory and not 

directory and they must be^om^lied They are not inser- 
ted merely for the sake of form, butjxjjprotect the Government 
against^juaiithorised^contracts. If, in fact, a contract is unautho- 
rised or in excess of authority, the Government must be safeguat* 
ded from being saddled with liabilityl/to avoid public funds being 
wasted. Therefore, if any of the~~aforesald conditions is not 
complied with, the contract is not in accordance with law and the 
same is not enforceable by or against the Government/ Formerly} 
the view taken by the Supreme Court was that in case of non- 
compliance with the provisions of Article 299(1), a suit could noj 
be filedagainsj the Government as the contract was not jmforce- 
able, but the Government could accept the liability by ratifying it(^! 

(1970) 3 SCO 874: AIR 1971 SO 141. See also Chatturbhufs case (supra) 
A*. P. Chaudhary v. State of M. P., AIR 1967 SG 203^ ~* 
Bhikraj Jaipttria's case (supra) ; B. 1C. Mondal's case (infra) ; A*. P. 
Chaudhary '$ case (supra) - t New Marine Coal Co. v. Union of India, AIR 1964 
SC 152. 

Chattwbhufs case (supra) at p. 243. 
) Bhikraj Jaipuria's case (supra) ; fC.P. Chaudhary s case (supra) ; New Marine 

^^/x Coal Co. (supra). 

20.) Chatturbhuj's case (supra) ; B./T. Mondal's case (infra) ; Laliteshwar Prasad v. 
Bateshwar Prasad, MR, 1966 SC 580 ; K. C. Thapar's case (supra) ; Rallia 
Ram's case (supra). 
Section 196 of the Indian Contract Act, 1872 reads : 

"Where acts are done by one person on behalf of another, but with- 
out his knowledge or authority, he may elect to ratify or to disown such 



But in Mulamchand vj>tate ofM. P.**, the Supreme Court held that 
if the contract was not in accordance with the constitutional pro- 
visions, in the eye of law, there was no contract at all and the 
question of^ratificationjiid^ not arise.. 28 Therefore, even the pro- 
visions of Section 230|3jj>f the Indian Contract Act, 1871^\vould 
not apply to such a contract and it could not bta>enforced against 
the Government officer in his personal capacity ^} 

(d) Effect of a valid conjracjL 

If the provisions of Article 29j)(l)jy^_cpmplted with, the con- 
tract is valid and it can be enforced by or against the government 
and the same is binding on the parties thereto. 25 Article 299(2) 
provides that neither the President nor the Governor shall be 
persoixally)liable in respect of any contract executed for the pur- 
pose of tKe Constj^ for the purpose of any enactment 
relating to the Government ofJfnjJia.. It also immunes a person 
making or exec^^g]~anysuch contract on behatTpf jJieJPresident 
or the Governor from personal liability^ r 

(e) Quasi-contractual liability: The doctrine of unjust 

As discussed above, the provisions of Article 299(1) of the 
Constitution [and Section 175(3) of the Government of India Act, 
1935] are mandatory and if they are not complied with, the con- 
tract is not enforceable in a court of law at the instance of any 

acts. If he ratify them, the same effects will follow as if they had been 
performed by his authority." 

21. AIR 1968 SC 1218: (1968) 3 SCR 214. 

22. See also K.P. Chaudharfs case (supra) ; State of U. P. v. Murari Lai, 
(1971) 2 SCO 449 : AIR 1971 SC 2210; Bihar E.G.F. Co-opt. Society Ltd. v. 

^ Sipahi Singh, (1977) 4 SCC 145 : AIR 1977 SC 2149. 
23\ Section 230 reads : 

/ "In the absence of any contract to that effect, an agent cannot per- 

sonally enforce contracts entered into by him on behalf of his principal, 
nor is he personally bound by them.'* 

Such a contract shall be presumed to exist in the following cases : 
^ (3) Where the principal, though disclosed cannot be sued." 

24. Murari Lai's case (supra) ; Chatturbhuj's case (supra). 

25. State of Bihar v. Abdul Majid, AIR 1954 SC 245; State of Assam v. K.P. 
Jingh, AIR 1953 SC 309. 


of the contracting parties. In these circumstances, wjjJLJLYJgw 
to protecting innocent perggns^ courtsTiaye applied the provisions 
of Section 70 of the 

Government liable to compensate the othejx>ntracting party on 
the basis of gM&H- contractual liability? "WliaVSec tien TO^^^MJ^ 
is that if the goods del ivered areaccepted or the work done is 
voluntarily enjoyed, thenthe liability to pay compejisatioj^orJLhe 
enioyment of the said^goods^r_jli^acceptance of the said work 
arises.^ Thus, where a claim for compensation is made by one 
person against another under Section 70, it is not on the basis of 
anyjubsjsting contract between the parties^but onjhe basis ofjOJie 
fact that something wa|_d^joej)y^gne^party for the pth^r^agd the 
said work so don^has^^envol^^ byi ^gj^^ r 

partyj^ 7 Thus' Section 70 ^oFTh^Gon tract Act prevents*"* unjust 
enrichment', This doctrine is explained by Lord Wright in 
fiobngw^JFjiizfrairfl? 8 , in the following words : *s* 

. ...[A]ny civilised system of law is bound to provide 
remedies for cases of what has been called 

or unjust benefit, that is, to prevent a man from retaining the 
money of, or some benefit derived from, another which it is 
against conscience that he should keep. Such remedies in 
English Law are generally different from remedies in contract 
or in tort, and are now recognised to fall within a third 
category of the common law which has been called quasi- 
contract or restitution. r 

The doctrine applies as much to corporations 

ment as to 'private individuals.^"" The provision ot Section 70 may 

be invoked by the aggrieved party if the following 

tions are satisfied. 30 Thetfirs]f condition ^ 

lawfully do something forjmojher person or deliver something to 

hirru The ijecorjft condition is that in doing the said thing or 

deliveringthe said thing he must notjntend to act gratuitously : 

and theohim is that the other person "for whom something is done 

26. Chatturbhuj's case (supra) at p. 243;#./T Mondays case (infra) at p. 789; 
Mulamchand's case (supra). 

27. B.K. Mondays case (infra) at pp. 786-87. 

28. (1943) AC 32. See also Mulamchand v. State, AIR 1968 SC 1218. 

29. B.K, Mondays case (infra) at p. 789; Piloo Dhunjishaw v. Municipal Corpn., 
Poona, (1970) 1 SCO 213: AIR 1970 SC 1213. 

30. Ibid, at p. 786 (para 14) ; Mulamchand's case (supra) at p. 1222, 


or to whom something is delivered must enjoy the benefit thereof. 
If these three conditions arelatisti edpsection '/Olmposes upon the 
latter person the liability to make compensation_ioj:he former, in 
respect of^rj^ej^^ 

State of W.B. v*. B. 

At the request of a government officer, the contractor con- 
structed a building. The possession was obtained by~the officei 
and the buildingwas used by the government, but no payment 
was rnade to the contractor. It was contended that as the pro- 
visions of Article 299(1) of the Constitution had not been complied 
with, the contract was not enforceable. The Supreme Court held 
that the contract was unenforceable but the government was liable 
to pay to the contractor under Section 70 of the Indian Contract 
Act, 1872 on the basis of^gjrf-contractual liability. 82 , 

TJJie doctrine of vicaOTfSTiafiSIity 

Since the State ig a/egal^entity] and jiot^a living en tity^it has 
to act thrpugjijin^^ When we 

discuss the tortious liability of the State, it is really the liability 
of the State for the tortious acts of its servants that has to be 
considered. In other words, it refers to when the State can be 
held vicariously liable for the wrongs committed by its servants. 

Vicarious liability refers to a situation where one person takes 
or supplij&the place of another so far as 

Winfielci^fexplains the doctrine of vicarious liability thus: "The 
expression 'vicarious liability' signifies the liability which ^may_ 
incur to C for^damage caused to J^>yJLhe negligencejir other tort 
ofj?. It is not necessary that A shall have participated in aby 
way in the conrniiggloiL^ilA nor thatja^ duty owed in lawby 

A to C shall have been broken^^What is required is that A should 

31. AIR 1962 SC 779 : (1962) Supp (1) SCR 876. 

32. See also Mulamchand v. State of M. P. (supra) ; Piloo Dhunjishaw's case 
(supra) ; Hansraj Gupta v. Union of India, (1973) 2 SCO 637 : AIR 1973 SC 

33. Launchbury v. Morgans, (1971) 2 QB 245. 
34.. 'The Law of Tort", (1971) p. 525. 


in a particular rela^nship fo 7? and that B J s , tort should 
be referablein a certain manner to that relationship". Thus, 
the master may be held liable for the torts_committed by his 
servant in the course of employment.^ 

The doctrine of vicarious liability is based on two maxims : 
(let the principal be liable) ; and 

foci* per dium fait per se (he who does an act 
through another does it himself) . 

As early as in 1839, Lord Brougham 85 observed : 

The reason that I am liable is this, that by employing 
him I set the whole thing in motion ; and what he, being 
^ on ^Jj2JSZ--b^ e fi t anc * under qiy directfon^I ain respon- 
sible for the consequences of doing it. 


The doctrine of vicarious liability is based on 'social con- 
venience and rough justice'. ^ 

There is no reason why this doctrine should not be applied 
to the" Crown in respect of torts commiUecTby its servants/ In 
fact, if the Crown is not held jsnuaan^^ torts, the 

aggrieve<^party, even though it had sus^ajriejd^jLlejgJ injury, 
woulcTbe without; any effective remedy, inasmuch as the govern- 

ment servant may not have sufficienjRmeans ^^t^ZiiJi&fy" the 
judgment ajid^ decree-passed against hin(^y 

(a) In England 

In England, at Common law, absolute immunity of ttie 
Crown was accepted and the Crown could not be sued in tort for 

35. Duncan v, Finlater, (1839) 6 Cl. & F. 894 (910). 

36. P*rLord Pearce in /. C. /. Ltd. v. Shatwetl, (1965) AC 656 (686). See 
alsoSalmond: The Law of Torts, (1973) p. 461; Winficld: The Law of 
Tort, (1971) p. 525. 

should be borne in mind that what we are discussing here is the im- 
munity of the State from the doctrine of vicarious liability and not the 
immunity of the government servants from his personal liability to com- 
pensate the aggrieved party. Of course, some statute* grant such im- 
munity to the government servant in respect of an act done by him in 
good faith in the official capacity; e. g. & 40 of the Indian Arms Act, 
1950, S. 159 of the Bombay Police Act, "~ ~~~ 


^\ To 
\7.) It 


wrongs committed by its servants in the course of their employ* 
ment. 38 The rule was based upon the well-known maxim of 
English law "the King can do no wrong". In 1863, in Tobin v. 
R.* 9 , the Court observed : "If the Crown were liable in tort, the 
principle (the King can do uo wrong) would have seemed 
meaningless". But with the increase of governmental functions, 
the immunity afforded to the Crown in tortious liability proved 
to be incompatible with the demands of justice. 40 The practice 
of general immmutyjvas very much criticised by Prof. Dicey, 41 
by the Committee on Ministers' Powers 42 and by the House of 
Lords 'm^amsTj^^ The time had come to abolish the 

^eneraTimmumty of the Crown in tort, and in 1947, the Grown 
Proceedings Act was enacted. This Act placed the Government 
in the same position as a private individual. Now, the Govern^ 
ment can sue and be sued for tortious acts. . 

(^/Constitutional provisions 

Under Article 2g4fA) of t.hi Cnnft{itnt.ifln T the liability of the 
Union Government or a State Government may arise 'out of any 
contract or otherwise^ The word * otherwise* suggests that the said 
liability may arise in respect of tortious acts also. Under Artk 
cle 30Q1D, HSTjaOei^ ^t provides thati 

tEeTIab^ Government will 

be tEejame^ as that of the^jpnmjmon 

before the commen_cemenjLjrf^ 1* ! m 

ner.&ssaryjTL .di gr - 1|M *hq liabJHiy,. of the Dominion and_JheJPrai 
vinces before the commencement of the Constitution of India. 

38. Canterbury (Viscount) v. Alt. General, (1842) 1 Ph 306; France Fenvick 

<S? Co.Ltd. v. R., (1927) 1 KB 52 ; Minister of Supply v. British T. H. Co., 
(1943) KB 478; Winfield : The Law of Tort, (1971) p. 601. 

39. (1863) 14 CBNS 505. Sec also Feather v. R. t (1865) 6 B. & S. 257. 

40. Bainbridge v. Post Master-General, (1906) 1 KB 178; Royster v. Cavty, 
(1946) 2 All ER 646; Adams v. Nay lor, (1946)2 ALL ER 241 : (1947) 
KB 204: (1946) AC 543. 

41. Law of the Constitution, (10th edn.) pp. 24-26. 

42. Cmd. 4060 (1932) p. 112. 

43/ (1946) AC 543 : (1947) KB 204 : (1946) 2 All E R 241. 


(ti) Soffffitign and non-sovereign functions 

(a) Before the commencement of the Constitution. The English law 
with re^rd^"immunity of the Govern mentior tortious acts of 
its sprvg^ts i* partly flfcfipted in India also* As observed by the 
High Court of Calcutta 44 , 'as a general rule this is true, for 
it is an attribute of sovereignty, and an universal law_jthat_j* 
S'tate^almiiotbe sued in its ownjsourts without its consent 3 > Thus, 
a distinction is sought tcTBe made "^Between '^yereign 

ari3 ^n^-sover^igh^Tunctions^ of thgState. In respect oQbe 
former, the State is not^ liable in tort, while in respect of the 
tatterT^Tt is. Let us try to understand the distinction between 
sovereign and non-sovereign functions with reference to some 
concj?te cases on the point : 

Peninsular and Oriental Steam Navigation Co. v. Secretary j 

This is considered to be the firsj: leading r f qsfi nn 
In this case, a servant of the plaintiff-company was taking a horse- 
driven carriage belonging to the company^ While the carriage 
was passing near the Government Dockyard, certain workmen 
employed by the Government, negligently dropped an iron piece on 
the road. The horses were startled and one of them was injured. 
The plaintiff-company filed a suit against the defendant and 
claimed Rs. 350 as damages. The defendant claimed immunity 
of the Crown and contended that the action was not maintain- 
able. The High Court of Calcutta held that the actign_jtgainst 
the defendant was maintainable and awarded the ^damages. The 
Court pronounced : v - ~^~_ 

There is a great and clear distinction between acts done 
in the exercise of what are usually termed as sovereign powers, 
and acts done in the conduct of undertakings which might be 
carried on by private individuals^ without having such powers 
delegatea~to them. 40 " 

Holding the Government liable, the Court further observed : 

The Secretary of State is liable for damages occasiqngd 
by tli^TTegligenceof servants in the service of j3oye|y ment - if 

44. Steam Navigation Co.'s case (infra). 

45. (1861) 5 Bom. HCR App. 1. 

46. Ibid, at p. 15. 


o^ render an ordinary employer 


From the aforesaid observations of the Court, it is clear that 
the"**Court classified theaga "TEftBF^ecretary of the State into 
two categories (t) sovereign i acts ; and () non-sovereignj^i~Tg 
respect oi the former category of acts^he^Secretary gf State was 
not liable, but ijj^jhe^J^ 
mj^^^ the second cate^rj^t^ 


~ __ 

" Afterthecommenctment of the Constitution 

State of Rajas than v. Vidhyawatfi*s 

A jeep was owned and maintained by the State of Rajasthan 
for the official use of the Collector of a district. Onee the driver 
of the jeep was bringing it back from the workshop after repairs. 
By his rash and negligent driving of the jeep 

knocked down. He died and his widow sued the driver and the 

State for damages v A Gongtitutipn Tfondi of the Snprpma ..Clrmrt. 

iield the State vicariously liable for the rash ^^jiegligent act 

of the dnv^rTI TheTTourT^ afi^ the 5^ 

Co^i case (supraV. did not golntoljie wider question as 

tfe the act waTa sovereigiT act or not. JBut it held that thejrule 

of immunity based n the EnglhMa w^h^^ 

Sfter the establishment of! Republican form of Governm^nt_undgi, 

the Constitution there was no justification in principle or 

InPpublic jntefest, that t^e^State^hould not be held liable 

vicariously for the tortious acts of its servants^ 

v. Statejof U.P^_^ 

In this case, certain quantity_^)f gold and_siJyer_jwa^aUach^d 
by police authoritigsfrom one _R on suspicion that it was stolen 
property It was kept in government malkhana which was in the 
custodyjof a Head Gonstable^.^jrhejlead ^Constable misappropri- 
ated the property^and fled to Pakistari,..^JLm&^ 

47. Ibid. 

48. AIR 1962 SO 933: (1962) Supp (2) SCR 741. 

49. Ibid, at p. 940 (AIR), 

50. AIR 1965 SC 1039 : (1965) 1 SCR 375. 


acquitted by the court. A suit^ for damages was filed j 
the State for TEeTossT caused to him by the^ jiegligence. of police 
' The suit was resisted by the State. 

fallowing the ratiolaid down in Steam Navigation Co. ^ case ([supFa), 
tneT Supreme GourlTield thaT^th^^ was n^ 

^ functipns\ Speaking for a 

Constitution Bench of theGourt, Gajendragadka?, G. J. observed : 

If a tortious act is committed by a public servant and 
it gives rise to a claim forjjamages, the questfoTr~to~sk--4SU 
WasThe tortious act committed by the public s~e?VOTf in 
discharge of statutory functions which are referable to, and 
ultimately based on, the delegation of the sovereign powers of 
the State to such public servarit7"" J If the~~answer is^in""fKe 
affirmative, the action for damages for loss caused by such 
tortious act will not lie. Un the otner hand, it tne tortlouract 
^Eas been committed by^ a public^ servant in discharge 01 duties 


sovereign power, an action for dama^esjivquM lie. 81 
Distinguishing Vidhyawati's caso^supra) , the Court held'^that 

when the Government employee was driving the jeep car from the 
workshop to the collector's residence for the collector's use, he 

to be referable ToTor ultimately based on, the delegation oi 
^2Ynugn^^ ofjhfi ^^^^'"JWTtTlhe bastToi 

which theHecision 'mustbe ^ 


ISfatt of Gujarat v. Memon Mahomed 

In this case, certain goods of the respondent were seized by 
the Customs Authorities under the provisions of the Customs Actj 
1962, inter alia on the ground that they were smugglecFgoodsJ An 
appeal was filed against that order by the respondent. During 
the pendency of the appeal the goods were disposed of under an 
order passed by the Magistrate. The appeal filed by the respon* 
dent was allowed and the order of confiscation was set aside 
and the authorities were directed to return the goods. In an 
action against the Government, the Supreme Court held that the 

51. Ibid, at p. 1046(AIR). 

52. Ibid. 

53. AIR 1967 SO 1885 : (1967) 3 SCR 938. 


Government was in a position of a bailee and was, therefore, 
bound to return the goods. TheTCourt observed : 

Just as a firider of property has to return it when its 
owner is found and demands it, so the State Governmenl 
was bound to return the said vehicles once it was found thai 
the seizure and confiscation were not sustainable. Ther* 
being thus a legal obligation to preserve the property intacl 
and also the obligation to take reasonable care of it so as tc 
enable the Government to return it in the^same condition in 
which it was seized, the position of the State Government until 
the order became final would be that of a bailee. 6 * (emphasis 

SmL B. K. D. Patil v. State of Mysore**^ 

Some ornaments were stolen from the house of the appellant. 
They were recovered by the police authorities in the course ol 
investigation and produced before the criminal court. The goods 
were retained by the police authorities under the order of the 
Court. The goods were, however, stolen from police custody 
before the disposal of the case. After the final disposal of the 
criminal proceedings, the appellant applied under the Code of 
Criminal Procedure, 1898, 56 for return of the ornaments or their 
equivalent value. The application of the appellant was rejected 
by the Magistrate on the ground that the goods had not reached 
the custody of the Court. The said order was confirmed by the 
Sessions Court and the High Court of Mysore. The Supreme 
Court set aside the orders passed by the courts below and 
ordered the State to pay cash equivalent HMJlP propft rf y fr * *k^ 

It is true that in this case, the application was filed under 
the Code of Criminal Procedure andthus, the proceedings were 
criminal in nature, but in almost similar circumstances, in Kasturi 
LaVs case (supra), the civil action failed onthejround that 
the act_jnyolved_jras_^ It is also impor- 

tant to note that Kasturi Lai's case (supra) was not even 

54. Ibid, at p. 1889 (AIR). 

55. (1977) 4 SCO 358: AIR 1977 SO 1749. 

56. S. 517. 


referred to by the Supreme Court, though it 

to by tlfetffeh-Getrrt ofTMysore2? 

(in) Test 

From the above discussion, the principle which emerges is 

that if the function involved is a 'sovereign function', thf> 
cannot be held liable in tort, kutifitjs a ^nonj^Q^sreign function', 
the State will be held liable^ BuTlI^JM 
iating a definite test or criterion to decide to which category 
,he~acTbebngs^ In fact, it is very difficuIF~todraw a distinc- 
tion between the two. "The watertight compartmentalisation 
of the Staters functions info y^v^rpign and 

reminiscent of the Jaisse^ faire^o^^ y Thus, on the one hand, 
it could haveJjKsen argued in kasturi Lai's 

act of keeping another's goods w^Jhj^Jjj^^ 
could be undertaken by a private person also and in fact, in 
Membn Mahomed's case (surpa), prTjmiiilar facts f the impugned_act 
was held to be a bailment. Qn the other hand, in Vidhyawati's case 
(supra), it could have^bgen argued that as the vehicle was 
maintained for the use of a collector, who was an administrator 
and also a District Magistrate and had police duties to perform, 
it was 

The test whether the act inquestion could have been per- 
form eel omy by the Government orjilsp by a private indfoiduflj^Js 
also not helpful in deciding^the^iaaiJg^ \n a welfare state, the 

not all the 

by the Goy^mment .ai^jYfiflS^ 
e. g. commercial activities like the running of the railways. . 

Itis also said that if the act in question is statutory, it may 
be regarded as a sovereign f uncIIcm^~~5uf"Tt is a non-sovereign 
function if it is non-statutory. But this test is also defective. An 
activity may BcT regarded as sovereign even though it has no 

57. See B. B. PANDB : Governmental Liability for the goods lost in custody : A step in 
the 'direction of reasonable accountability, (1977) 4 SCO (Jour.) p. 13. 
ALICE JACOB: Vicarious liability of Government in Torts (1965) 7 J.I. L. I. 

^ p. 246(247). 

59] Jain and Jain : Principles of Adminstrative Law, (1973) p. 472. 



statutory basis, (power to enter into a treaty with a foreign 
country) and conversely, inmiay_b^regarded^s non-sovereign even 
tfiough it has a statutory basis (running of railways). 60 ~~ 

Moreover, sometimesl* particular act may be held to be a 
sovereign function by one court but non-sovereign by another. 
For example, running of the railways wa^-Jield to be sovereign 
function by the High Court of^Bombayjiix but non-sovereign by 
the High Court oL Calcutta(Jy and this may lead to further 
uncertainty in la\\^j U^.ofr frtk* i/Xju^VvA/j^u^ v x 

Even if the governmental functions can be classified into one 
or the other category, the principle is unsatisfactory from yet 
another view point. Generally in a civil 


principal idea is to compensate~lHe aggrieved person and not to 
penalize the wrongdoeTorhis master. And if in compensating 
the 'aggrieved party, the wrongdoer or his master has to pay 
damages, the resultant burden on the latter is merely incidental 
and not by way of penalty. It is, therefore, absurd and really 
mhumane to hold that the Government would not be liable if 
a military truck supplying meals to military personnel struck a 
citizen, 64 but it would be liable if such an accident occurred when 
the truck carried coal to an army headquarters. 65 

The Law Commissioq^Aias a ' so criticised the existing situa- 
tion and has recommended the removal of this distinction, for 
according to the Commission there is no justification for such 
distinction. The Commission observed : 

There is no convincing reason why the Government 
. should not place itself in the same position as a private em- 
ployer subject to the same rights and duties as are imposed 
by statute. 67 ~~ ~ ** - r 

60. Ibid. 

61. Bata Shoe Co. v. Union of India, AIR 1954 Born 129. 
Maharaja Base v. G.G. in Council, AIR 1952 Gal. 242. 

Ultimately i in Union of India v. Ladulal Jain, the Supreme Court held it to 
b e a non-sovereign* function^ AIR 1963 SC 1681 ; see also Satya JVarain v. 
T5%sT Engineer, Alk 1962 SCM161. 

64. Union of India v. Harbans Singh, AIR 1959 Punj. 39. 

giw Union of India v. Smt. Jasso, AIR 1962 Pun. 315. 

66. Law Commission of India, First Report (1956), Liability of the State in 

67. JJ5T~at p. 36. 


As discussed in preceding lectures, the governmental func- 
tions have increased. Today, the State undertakes not only the 
'law and order' functions, but as a 'Welfare State', it performs 
many non-sovereign and commercial activities also. The im- 
portant question therefore arises, whether the StateJs__aiifeiCt jo 
the same righisjjidj^ahilili&^ the statute has imposed 

on other individuals. In other words, whether the State is bound 
by a statute, ancfjfjtjs, to what^xtent The provisions of a statute 
can be ejiforcedhig.^^ Let us discuss this point with 

reference to English Law and then Indian Law. 

(a) English law 

According to the general principles of common law, 'no 
statute binds the Grown unjess the Gj^yji^y^s^expr esslyjiamed 
therein'. 88 But the aforesaid rule is subject to one exception. 
As it has often been said, the Crown may be bound by a statute 
'by necessary implication'* 89 Thus, as Wadfl!3Lstates, 'an Act 
of Parliament is presu medjiot^o JbincL _the Cro vyn in, _the absence 
of expr e^g^visiorLQL-iier,Pss a ry i m plicalioa^ In England, the 
Grown enjoys the common law privilege and it is not bound by a 
statute, unlessja^j:]^^ from the 

statute itself or jrorn the express^Jerms^of^he Grown Proceedings 
Act, 1947'. 71 This principle is based on the well known maxim^thc 
King can do no wrong'. In theory, it is inconceivable that the 
statute maHeT5y^ie~Cfowh for its subjects could bind the Grown 
itself. This general^grincipleof the common law is preserved 
even under the provisions of the 1947 ActT 72 !^ ~ 

(b) Indian law 

The above principle of common lavy_j^gs^ccgpted in 
and applied in some cases. ~^ : ' 

"Roy n'est lie par ascun statute si il ne soil expressement nosme". 
\ Bombay Muni. Corporation's case (infra) at p. 35. 
'Administrative Law, (1977) p. 681. 

Garner t Administrative Law, (1963) p. 227. See also Street: Governmeni 
Liability, (1953) Ch. VI; Glanville William: Crown Proceedings, (1948) pp, 
48-58, Wilton v. Berkley, (1561) 1 Plowd. 222. 
72. Section 40(2) (/) of the Crown Proceedings Act, 1947. 


province of Bombay v. Municipal Corporation of the City of Bombay 

\ This is the leading case on the point before independence. 
The Corporation of Bombay wanted to lay water mains through 
land which belonged to the Government. The Government agreed 
to the said proposal upon certain conditions* The said land was 
acquired by the Grown under the provisions of the Municipal Act. 
Under the provisions of the Municipal Act, the municipality 
had power 'to carry water mains within or without the city'. 
The question was whether^jhg^rjgw^jjvas bound by the statute, 
viz. the Municipal Act. Following the English law, the Privy 
Council held that the Government was not bound^by the statute. 

Director of Rationing v. Corporation of Calcutta 7 * (GorporationP'bt 

i this case, the Director of Rationing of the Food Depart- 
mentA West Bengal used certain premises for storing rice, flour, 
etc. Though under the relevant Act a licence was required to 
be takn from the Corporation of Calcutta for such premises, 
it was not taken by the Director, He was, therefore, prosecuted 
by the Corporation. The question before the Supreme Court 
was whether the State was bound by the statute. The Court 
by a majority of 4:1 EelcT that the Director was not liable as 
'the State is not bound by a statute, unless it is so provided in 
expYess terms or by necessary implication 3 . **%/r~ 

Wanchoo, J. (as he then was), however, did not agree with 
the majority view. In his dissenting judgment, His Lordship 
observed : 

In our country the Rule of Law prevails_and our Con- 
stitution has guaranteed it by the provisions^ contained in 
Pt. I n_ thereof as well as by other provisions in other parts. 
It is to my rmnd inherent Injhe conception of thp> Rule $f 
Law that the State .no less than its citizens and others, is 
bound by thejaws ofjhe land. _ When the king as the emtxxii- 
ment of all power-executive, legislative and judicial has disap- 
peared, and in our Constitution, sovereign powiJb^beendis- 
tributed among various organs created thereby, it seems to me 

73. AIR 1947 PC 34. 

74.^ AIR 1960 SO 1355: (1961) I SCR 158. 

75 / Ibid, at p. 1360 (AIR). 


that there is neither justification nor necessity for continuing 
rule of construction based on the royal prerogative, 76 (~~ 

Superintendent and Remembrancer of Legal Affairs, W. B, v. Corpora* 
tion afiCalcutta (Corporation of Calcutta II) 

The State was carrying on the trade of a daily market with- 
out ^obtaining a licence as requTrTan&y^the relevant _statute^ 
The Corporation filed a complaint against the State. When the 
matter came Up for hearing before the Supreme Court, the point 
was already covered by the judgment^oTTEe TSourt 

Jton of Calcutta ~T. The Supreme Court was called upon 

tojecUe the corre^ in 

Corporation of Calcutta I. By a majority of 10: 1, the deci- 
sion in Corporation of 'Calcutta I was OVOTUls^^ 

held that the State waFBound^by ^TliejtStute . 78 

It is submitted that the majority view is correct and is in 
consonance with the^Hoctrine of Rule ofLaw and Equality en- 
shrined hjjthe^^ Jt^aTTCepubllcan State^tFus 

archaic rule has no justification whatsoever. TThe Law Commis- 
sIorThas 'also sugges ted^fhaF t he common law rule should not be 
joLiowecj_in India Even iii England, its survival is 'duejo 
little but the vis i 

Principle explained vA 

Explaining the principle,\Garner 81 states : "Estoppel is 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 or is entitled to rely". The basic 
principle of estoppel is that a person, who by some statement or 
representation of fact causes another to act to his detriment in 
reliance on the truth of it, is not allowed to deny it later, even 

76. Ibid, at pp. 1365-66. 

77. AIR 1967 SO 997 : (1967) 2;SCR 170. 

78. See also Union of India v. Jubbi> AIR 1968 SC 360. 

79. Law Commission of India: (First Report) (1956) pp. 31-35. 

80. Corporation of Calcutta I (supra) at p. 1365; Jain and Jain : Administrative 
Law (supra), p. 492. 

81. Administrative Law, (1963) p. 233. 


though it is wrong. 82 Here justice prevails over truth. This 
principle is embodied in Section 1 15 of the Indian Evidence Act, 
1872. It provides : "When one person by his declaration, act or 
Emission, intentionally caused or permitted another person to 
believe a thing to be true and to act upon such belief, neither he 
nor his representative shall be allowed in any suit or proceeding 
between himself and such person or his representative, to deny the 
truth of that thing". The illustration to the section reads as 
under : 

'A, intentionally and falsely leads B to believe that certain 
lands belong to A, and thereby induces B to buy and pay 
for it. 

The lands afterwards become the property of A, and A 
seeks to set aside the sale on the ground that at the time of 
sale he had no title. He must not be allowed to prove his 
want of title. 8 ^ 

(b) Application of the doctrine 

The important question is whether this doctrine can be appli- 
ed against the Government also : Is the Government also' 
bound by principle of 'equitable estoppel'? Let us discuss the 
problem in details 

(i) Traditional view : 

According to the traditional view, the doctrine of equitable 
estoppel or promissory estoppel applies to private individuals only 
and the Crown is not bound by it. 84 Thus, in R. Amphitrite v. 
/?. 85 , an undertaking was obtained by a ship-owner from the 
Government to the effect that on certain conditions being fulfilled, 
the ship would not be detained. Relying on this assurance the 
ship was sent and contrary to the promise, she was detained by 
the Government. The owner sued on a petition of right for 
damages. The Court dismissed the action and held that the 

82. WADE : Administrative Law ,(1977) p. 220. 

83. See also S. 43 of the Transfer of Property Act, 1882. 
S. 28 of the Indian Partnership Act, 1932. 

84. Gamer: Administrative Law, (1963) p. 233. 

85. (1921) 3 KB 500. 


undertaking was not binding on the Government. 88 In American 
Jurisprudence 87 it is stated : 

Generally, a State is not subject to an estoppel to the 
same extent as an individual or a private corporation. Other- 
wise, it might be rendered helpless to assert its powers in 
Government. Therefore, as a general rule the doctrine of 
estoppel will not be applied against the State in its govern- 
mental, public or sovereign capacity, 

Modern view 

But the traditional view has not been accepted and the rule 
of estoppel applies to the Grown as well. There is no justifica- 
tion for not applying this rule against the Government and exem- 
pt it from liability to carry out its promises given to an individual. 
The Grown cannot escape from its liability saying that the said 
doctrine does not bind it. Lord Denning 88 has rightly observed : 

I know that there are authorities which say that a pub- 
lic authority cannot be estopped by any representations made 
by its officers. But those statements must now be taken with 
considerable reserve. There are many matters which public 
authorities can now delegate to their officers. If an officer 
acting within the scope of his ostensible authority makes a 
representation on which another acts, then a public authority 
may be bound by it, just as much as a private concern would 
be. 89 

Robertson v. Minister of Pensions** 

R, an army officer claimed a disablement pension on 
account of war injury. The War Office accepted his disability 
as attributable to Military service. Relying on this assurance R 
did not take any steps which otherwise he would have taken to 
support his claim. The Ministry thereafter refused to grant the 
pension. The Court held the Ministry liable. According to 

86. See also M. R. Pillai v. State of Kerala, (1973) 2 SCC 650: AIR 1973 
SO 2644; Excise Commissioner v. Ram Kumar, (1976) 3 SCC 540 : AIR 1976 
SO 2237, S. 0. S. Corp. v. Hodgson Ltd. (1962) QB 416. 

87. American Jurisprudence: (2nd End.) p. 783, Para 123. 

88. Lever (Finanee) Ltd. v. Westminister Corp., (1971) 1 QB 222. 

89. Ibid, at p. 230. 

QO. HQ4ft\ 2 AH R R 7fi7 : MQ4<H 1 KB 227. 


Denning, J., the Crown cannot escape by saying that estoppels do 
not bind the Crown, for that doctrine has long been exploded'** 1 (em- 
phasis supplied) 

of India v. Af/j. Anfilo Afghan 

..- - -r-rrr^^sas*. ---- , 

TIS is the classic judicial pronouncemenj^^ 
doctrine of promissory _estQppeJ._ La _this historic case, 'Export; 
_ published by the Textile Commissioner. 

It was provided in the said scheme 3iat*Sie~^porl:erTwiII"b"e 
entiTfed to Img^TraMLniater ials up/to 

JReiying on this representation, the petitioner 
exported gQods_vwrth_5 lacs oTrupeesT' TH^nTexTile~tfelft^ 
no * gran t thg_inipQrt_ jcertificate for jhe full 

__ ^ 

good^exported. Nojopp^rtunity for being heard was given to the 
petUioner before taking_the n^ugrie^"aetipni Th order was 
challenged by the petition^. ______ It Jivas con tended i^by^ l^Goy ern : 

ment that the^chemgjyas merely jidmmist^ and 

did not create any enforceable right in favour of the petitioner. 

also argued^.thaJL the.re_ was nojormal contract as required 
by Article 299(l)__of the Constitution and therefbreTTT^v^^ 
binding on the Government. Negativing the contentions, the 
Sugrgme CourffieldThat the Government was^bound focafry out 
the obligations undertaken m^ 

was merely executive in natureT and even though the promise was 

la formal^, contract as required by 

Article 299(1 )jofthg_Constitution y . still it was^open to a party who 
had acted on a representation made bythe_jGroy^nme 
that the GovernmentVas boul^^ promise madeTEy 

^ Sj^aJ^^J^tKjCo^f^ J. (as helEen was) stated : ~I 

We are unable to accede to the contention that the 
executive necessity releases the Government fromjionouring 
its solemn promises relying on which citizensTfave acted to 
their detriment. 98 

The Court further observed : 

ffie cannot therefore accept^ the_jlea_jhaL 
Commissioner is the sole j53ge of the quantum of import 

91. Ibid, at p. 770 (AER) : p. 231 (KB) ; See also Lever Case (supra). 

92. AIR 1968 St 718 : (1968) 2 SCR 366. 

93. Ibid, at p. 723 (AIR). 


licence to be granted to an exporter, and that the Courts are 
powerless to grant relief, if the promised import licence is not 
given to an exporter who has acted to his prejudice relying 
upon the representation. To concede to the Department 

^ to^strike at the very root oflhe rule oj 

~~ " ...... ~ 

Century Spg. and Mfg. Co. v. Ulhasnagar Afunici^ality w 

This isanother leading case ^df r.idpd hy thp Supreme Court 
followji^^ case _(supra) . 

In this case, the petitioner _ cc^pai>y^ se_tLi4p,_its factory Jja the 

*1 njustrial^ATeja^ was payable 

imported^ in_that area. The .Jikate.._jQf MaEiraahira published^ 
notification constituting with effect from April 1, 1960, a munici- 
pality for certain j/illages including the 'Industrial Area\ On 
representa tion being jnada jty the petitioner company and other 

the. Industrial Area from the 

. . _ ^ 

rnjunicipal j urisdict ion , But in pursuance of the agreement by the 

municipalitYjhat it will not charge octroi for 7 years, the Industrial 
Area was retained within the municipal limits. Thereafter, before 
ffie^expiry of^yearsT'^fHe" municipality souglit to levy octroiduty 
onthe petnToner-compa^y\ The company 's petition challenging 

the said levy was dismisj^J^jMheJ^ 
TO^^comg^y^apprpached _thie .Supreme Court. 
appeal, the Supreme ^ourj^bs^rved : _________ 

Public bodies are .s_miich_bound 

-facts. -^aad v ^romjses made by 

mdividuaT~out of his representation amounting to a promise 


ETQJaus^-^wlifin the law^xequires that a contract enforceable at 
law against public body sha]l_be_jn certainform rbe 
he ^ mar|hej:_, prescriBed by 

against it ^in appropriate casesTn ^^ equity. 96 
The Court further pronounced : 

If our nascent democracy is to thrive different standards 
of conduct for the people and the public bodies cannot 

94. Ibid, at p. 726. 

95. (1970) 1 SCO 582 : AIR 1971 SC 1021. 

96. Ibid, at p. 586 SCO : p. 1024 AIR. 


ordinarily be permitted. A public body is, in our judgment, 
not exempt from liability to carry out its obligation arising 
out of representations made by it relying upon which a citizen 
has altered his position to his prejudice. 97 

Very recently, in Mfs, Motilal Padampat Sugar Mills v. State of 
U. P. 98 , after discussing the case-law exhaustively, the Supreme 
Court has reiterated the above principle and has held that the 
assurance given by the Government could be enforced against it by 
invoking the doctrine of promissory estoppel. 

(c) /Estoppel against a statute 

jhjshoij^ ther 

estoppel against a statute.^ 9 The doctrine cannqt^be 
operateTo as to validate an ultra vires act 1 or to oygrride the clear 
^^3^~^&^^tu^^^6r^6es it apply to criminal proceedings. 3 
The doctrine cannot be used against or in fayour of the _ad minis- 
o^aT^tp give de facto validity to ultra vires administrative 

acts. 4 _ 

HoweU v. Falmouth Boat Construction Co. 6 

The relevant statute required a licence to do ship repair work. 
An assurance was given by the designated official that no such 
licence was necessary. The plaintiff sued for payment of work 
done by him. It was argued that the work was illegal as no 
written licence was obtained by him. The Court of Appeal 
decided in favour of the plaintiff on the basis of the doctrine of 
estoppel. Reversing the judgment of Lord Denning and dismis- 
sing the claim of the plaintiff, the House of Lords pronounced : 

It is certain that neither a Minister nor any subordinate 
officer of the Crown can by any conduct or representation bar 

97. Ibid, at p. 587 SCO : p. 1025 AIR. 

98. (1979) 2 SCO 409 : AIR 1979 SC 621. 

99. Amar Singhji's case (infra) at p. 534. 

1. Ministry of Agriculture v. Hulkin, (unrep.) ; Ministry of Agriculture v. 
Mathews, (1950) 1 KB 148. 

2. Garner: Administrative Law, (1963) p. 233. 

3. Lundv. Thompson, (1959) 1 QB 283. 

4. Schwartz : An Introduction to American Administrative Law, p. 233. 

5. (1951) 2 All ER 278 : (1951) AC 837. 


the Crown from enforcing a statutory prohibition or from 
prosecuting for its breach. 6 

Amar Singhji v. State of Rajasthari 1 

In this case, the Secretary to the Government wrote a letter 
to the Collector of Tonk that the Jagir of the petitioner would not 
be acquired during her life time. Subsequently, resumption 
proceedings were initiated against the petitioner. It was contended 
by the petitioner that the Government was estopped from initiat- 
ing resumption proceedings. Negativing the contention, the 
Supreme Court held that the powers of resumption were regulated 
by the statute and must be exercised in accordance with law. 
"The Act confers no authority on the Government to grant exemp- 
tion from resumption, and an undertaking not to resume will be 
invalid, and there can be no estoppel against a statute."* (emphasis 

Mulamchand v. StajetfM. P. 9 

*~ If the provisions of Section 175(3) of the Government of 
India Act, 1935 are not complied with, the contract is void. No 
question of estoppel therefore arises. If the plea of estoppel is 
upheld, it would mean in effect the repeal of an important consti- 
tutional provision. 10 s 

Excise Commissioner, U.JP^j^Ram Kumar 11 V 

In this case, the Supreme Court held that the sale of country 
liquor which had been exempted from sales tax at the time of 
auction of licences could not operate as an estoppel against the 
Government. TheSupreme Court observecLL 

It is now well settled by a catena of decisions that there 
can be no question of estoppel against the Government in the 
exercise of its legislative, sovereign or executive powers. 12 

6. Ibid, at p. 285 (AER) : p. 849 (AC). 

7. AIR 1955 SO 504 : (1955) 2 SCR 303. 

8. Ibid. At p. 534 (AIR). 

9. AIR 1968 SC 1218: (1968) 3 SCR 214. 

10. See also Bihar EGF Co-opt. Socty. v. Sipahi Singh, (1977) 4 SCC 145 : AIR 
1977 SC 2149. 

11. (1976) 3 SCC 540: AIR 1976 SC 2237. 

12. Ibid, at p. 545 (SCC) : p. 2241 (AIR). See also Nookala v Kotiah, (1970) 2 
SCC 13 : AIR 1970, 1354; Mulamchand's case (supra). C. Sankaranarayanan 
v.State of Kerala, (1971) 2 SCC 131 : AIR 1971 SC 1997. 



(a) In England 

In England, the Crown has the special privilege of with- 
holding disclosure of documents, referred to as 'Crown privilege*. 
It can refuse to disclose a document or to answer any question if 
in its opinion such disclosure or answer would be injurious to the 
public interest. This doctrine is based on the well known maxim 
solus populi est suprema lex (public welfare is the highest law). 
The public interest requires that justice should be done, but it 
may also require that the necessary evidence should be suppressed. 13 
This right can be exercised by the Crown even in those proceed- 
ings in which it is not a party. 

Duncan v. Cammell, Laird & Co. Ltd. 1 * 

This is the leading case on the point. At the time of the 
Second World War, the submarine Thetis sank during her trials 
and 99 lives were lost. In an action for negligence, the widow of 
one of the dead persons sought discovery of certain documents in 
order to establish liability against the Government contractors. 
The Admiralty claimed 'Crown privilege* which was upheld by 
the House of Lords. It observed that the affidavit filed by the 
Minister that disclosure would be against the 'public interest ' 
could not be called into question. Lord Simon observed : 

The principle to be applied in every case is that 
documents otherwise relevant and liable to production must 
not be produced if the public interest requires that they should 
be withheld. 15 

But this decision was very much criticised. It was regarded 
as a 'very formidable impediment to justice and fair play' by Sir 
O.K. Allen and by Goodhart as 'opposed to the whole course of 
British Constitutional history'. In fact, that was 'not the law 
previously. As Wade 18 states : 'The power thus given to the 
Crown was dangerous since, unlike other governmental powers, it 

13. Wade : Administrative Law, (1977 )p. 683. 

14. (1942) AC 624 : (1942) 1 All ER 587. 
15., Ibid, at p. 636 (AC) ; p. 592 (AER). 
16. Administrate Law, (1977) p. 684. 


was exempt from judicial control. The law must of course pro- 
tect genuine secrets of State. But 'Crown privilege* was also used 
for suppressing whole classes of relatively innocuous documents, 
thereby sometimes depriving litigants of the ability to enforce 
their legal rights. This was, in effect, expropriation without 
compensation. It revealed the truth of the United States Supreme 
Court's statement on the same problem, that 'a complete abandon- 
ment of judicial control would lead to intolerable abuses'. (U.S. 
v. Reynolds, 345 U.S. 1 (1953). 'Privilege was claimed for all kinds 
of official documents on purely general grounds, despite the injus- 
tice to litigants. It is not surprising that the Crown, having been 
given a blank cheque, yielded to the temptation to overdraw/ 17 
de Smith 18 rightly states : "No one seriously suggested that the 
decision in relation to the particular facts of the case was unsatis- 
factory ; the documents which the Admiralty had sought to with- 
hold from production included blueprints of a new type of 
submarine, and the proceedings had been instituted in wartime. 
Critics fastened on to the broader proposition enunciated by the 
House of Lords : that a Minister, by virtue of his ipse dixit, could 
make an unreviewable pronouncement excluding relevant evidence 
merely because, in his opinion, it fell within a class of document 
which it would be contrary to the public interest to disclose in 
court. Provided that a Minister performed a suitably elaborate 
ritual beforehand, he would be allowed in substance to do as he 
thought fit. The interests of litigants, and the public interest in securing 
the due and manifestly impartial administration of justice, had thus been 
subordinated to executive discretion, subject only to extra-legal checks; 
and all this in a case where a general abdication by the courts had 
been unnecessary for the decision", (emphasis supplied) 

Ellis v. Home Office 19 

Ellis, an undertrial prisoner was violently assaulted by another 
prisoner, who was under observation as a suspected mental defec- 
tive. Ellis alleged negligence on the part of the Prison Authorities, 

17. Ibid, at p. 686. 

18. Judicial Review (supra) at pp. 32-33. 

19. (1953) 2 QB 135 : (1953) 2 All ER 149. 


but the Crown claimed privilege in respect of the medical reports 
and consequently, Ellis lost his action. 

It is submitted that the evidence could have been made avail- 
able without any injury to the public interest. Devlin, J. rightly 
observed : 

.... [B]efore I leave this case I must express, as I have 
expressed during the hearing of the case, my uneasy feeling 
that justice may not have been done because the material 
evidence before me was not complete, and something more 
than an uneasy feeling that, whether justice has been done or not, 
it certainly will not appear to have been done. (emphasis 

Conway v. Rimmer* 1 

In this case, the House of Lords reviewed the earlier legal 
position and laid down 'more acceptable law*. A police constable 
was prosecuted for theft of an electric torch and was acquitted. 
He sued the prosecutor for malicious prosecution and applied for 
discovery of certain documents relevant for that purpose. 'Crown 
privilege' was claimed. The House of Lords took advantage of 
their newly discovered power to depart from the doctrine of stare 
decisis overruled the Duncan case (supra) and disallowed the 
claim for privilege. It held that a statement by a Minister cannot 
be accepted as conclusively preventing a court from ordering pro- 
duction of any document. It is proper for the Court 'to hold the 
balance between the public interest, as expressed by a Minister to 
withhold certain documents or other evidence and the public 
interest in ensuring the proper administration of justice*. 28 Certain 
types of documents ought not to be disclosed : e.g. cabinet minutes, 
documents relating to national defence, foreign affairs, etc. On 
the other hand, privilege should not be claimed or allowed for 
routine or trivial documents. To decide whether the document 
in question ought to be produced or not, the judge must inspect 
the document without it being shown to the parties. Accordingly, 

20. Ibid, at p. 137 (QB) ; p. 155 (AER). 

21. (1968) 1 All ER 874 : (1968) AC 910 : (1968) 2 WLR 998. 

22. See Announcement by Lord Chancellor Gardiner on July 26, 1966: 110 
- Solicitor's Journal 584. 

23. Per Lord Reid in Convoy's case (supra). 


in this case, the document was ordered to be produced as the 
disclosure was not prejudicial to the public interest. As Wade 
graphically puts it, 'the House of Lords has contributed to Human 
Rights Year, by bringing back into legal custody, a dangerous 
executive power'. 24 

pb) In India 

In India the basic principle is incorporated in Section 123 of 
the Evidence Act, 1872! which reads as under : _ 

one shall be permitted to give A n Y_J^deng e derived 

the permission of the ^officer jatTfHe TTfeaSTof 

whoT JsEalL give or 
.^permission as fie thinks fit. a& 

As a general rule, the principle is that both the parties^ to the 
dispu!e"~must pi u J uc6""~^tTtKel'erevant and material evidence in 
The Evidence Act has prescribed elaborate 

rules to determine re!evati^aM~ta^^ 

oF proof. And IT^ny^p^fty^taiB" to^pl'oSuc^sucIi evISence, anf 

Section 114 of theT said Act.* 

Section 123 confers ~a grealT ^advantage on _ the_ ^oyernmjnt 

evidence before 

the Court, no adversTTnference can be drawn against it if the 
claim of privilege is gjj^l^hy The; court . ^Pms7"it "undoubtedly 
constitutes/Ajvery serious departure" from the ordinaryjrul&suaf 
evidence. _JThe.jpiincipJe on which thisjdeparture can be justified 
is the principle of the^^overriding andi^ j^aFamount ^character of 

t " ie s ^ t ' le t ^ ieor y 

that the production of the document in question would cause 
inj ury^to^puBlic In^esf7and that^jwhere a conflict arises between 
public intereir^jfiJjrivate interest, the latter must yield tojhe 
former. No doubt the litigant whose claim may not succeed as a 
result of the non-production of the relevant and material docu- 
mentniay feef^ggneved by the^ result, and, the Uoiirt7 m reacH- 
mg thesaid decision, may feel dissadsfieHTHbut that will not affedt 

24. See also R. v. Lewes Justices, (1971) 2 All ER 1126; N.P. Co. v. Customs 
and Excise Commr., (1972) 1 AER 972 ; Burma Oil Co. Ltd. v. Bank of Eng., 
(1979) 1 WLR 473. 

25. See also Ss. 124, 162; Arts. 22(6), 74(2) and 163(3) of the Constitution oi 


the validity of the b^sicj>rinciple that public good and interest 

must override considerations of private goodand private interest. 20 

, _ .._. - 

Stat^J Punjab v. SodM Sukhdev Singh 

This is the leading case on the subject. One 

an3 5essiojs_Jjidge was remove? from seryicgjyjh^Jpre&iHpnt of 
India. In pursuance of the representation made by him, he was 
]re-employed. Thereafter, he filed a suit for declaration that the 
order of removal was illegal, void and inoperative] TrTe~~aIsK> 
clGum^ He filed an appITcatlon For production 

of certain documentsT^i'he State clalm^l^rivitegg; Tire- Supreme 
Court bymajority held that the documents in question were pn> 
tected und^r^ectl^T^^T^^EvTdfence Act_q,nd, could be with- 
held from production on thgjggun;d_ of^j^licjntere&L Laying 
down THe~gener^Trule relating to Executive privilege irTrespect 61 
productiolT or non-productiorTof documents, Gajencfragadkar, J. 
(as he then was) observed ; 

be clearly realised- that the^ effect of th^docu: 
me5"onlhe ultimate ^gurse^fJUtigation or its impact on the 
" ~ 

"head jfjtELLjdfiparf m&nt ixiLaE.^linister~ in charge oftHe 
department, or eventhe^($e^ " has"no~rele^ 

Vance in~~making'"a clairn^ for privilege under Sect ion^I?5 . 
^^^^,^6^6^011^^^^ _affect IHe 

head of the~ department or^jthe^ degartmenT itself ""of the 
ven tRe~oern nent t or that'il 

j>ublig.. criticjsjii or jgenmre Jn_^he^JgisIatiire has^ also no 
jcdevance JQ/the matter ami shojJHjiot^elg^ 
me heado|jh(elartm rifaEeF~tlTe 

test whuJTsK^ 

is injury to public ^terestand nothing else.** (empha- 


The Court conceded that it could not hold an enquiry into 
the possible injury to public interest which may result from the 
disclosure of the document in question. 'That is a matter for the 
authority concerned to decide ; but the Court is competent, and indeed* 
is bound, to hold a preliminary enquiry and determine the validity 

26. Sodhi Sukhdev Singh's case (infra) at p. 510. 

27. AIR 1961 SO 493 : (1961) 2 SCR 371. 

28. Ibid, at p. 504 (AIR). 


of the j^ectjo^Q supplied) 

The Court observed : ~~ 

^ scope of enquiry in such a case is 

bolipil totygnaalTQj 


power in the GourtToTio^sucH3an eriqffi^ 
"lalipofy^jcEecS^n the capricious exercise of the power con- 

ferred undeFSectlon 123T . . . 80 ....... 

*! - ' - - ~"""* 


Amar Chand v. Union of India 81 

In this case, the Supreme Court reiterated the principle laid 
down in Sodhi Sukhdev Singh's case (supra). Here, A had filed a 
suit against the Government for recovery of certain amounts. 
During the course of the trial, A called upon the defendants to 
produce certain documents. The defendants claimed privilege. 
Following S. S. Singh's case (supra), the Supreme Court rejected 
the claim of the defendants. 

State of U. P. v. Raj Narain* 2 

Raj Narain had filed an election petition againstjthe then 
^ N^hrujGand^hi. During^ the Iriai, he 


appliedMFor production of certajjo^jdocuments. The Government 
claimed privilege in respect of those documents. The High Court 
of Allahabadlf ejected the claim. The Supreme Court allowed the 
appeal andjeFa^id^^e^or3er r passed by the High Court. In his 
concurring judgment, Mathew, J. observed : 

"~ """ ThenColIrtTT . has J^cgnsider two things ; whether the 
^document felatesj^_jecrerafi^^ and^wHetKer the 

refusal to perm^viden^e_derived from it bein^ given was in 
lic.^iiy^iiiLJZ^^_doubt 1 the words J used m Section 123 
thinks fit 7r onfer an absolute dis^c7eti~on iBe" Head 


^ termsb conferreg^ftBe Court 

derTdft JSSaTIyl on the_validity ofjhe 

, _ 

^objection. The__^ojLirjLJAdlI^dis^^ ^objection If iFcomes 

(document^ does no^eTate^ 

^, ^ ^ 

of Stateorthat the public interesr~dbes not comperits non- 

29. Ibid, at p. 505. 

30. Ibid. 

31. AIR 1964 SO 1658 : (1965) 1 SCJ 24 

32. (1975) 4 SCO 428 : AIR 1975 SO 8 


disclosure or that the jpublic interest served by the administra- 
tfon of Jiista^^ of 

P u ^^g^li^J^.rrt is ih gfgTor e a^IeaQHa , V eye n ^th diigh" the 

opeiTto the Court to go UT^ the question^afitf r exaniyitiigtg,the 
" ~ " the disclosure of the document 

to public irUer^"^tnJ~the expfessfori 
part of Section 123 ITe^a^n^n 
i" "deciding Ithe question afresh as Section 162 
thelC _of the objec- 

State of I/. PT^TChandra Mohan Nigam** 

In a later judgment, the Supreme Court held that when an 
order of compulsory retirement was challenged as arbitrary or mala 
fide by making clear and specific allegations, it was certainly 
necessary for the Government to produce all the necessary materials 
to rebut such pleas to satisfy the Court by voluntarily producing 
such documents as will be a complete answer to the plea. "Ordi- 
narily, the service record of a Government servant in a proceeding of this 
nature cannot be said to be a privileged document which should be shut out 
from inspection."** (emphasis supplied) 


Over and above the aforesaid privileges, the government 
enjoya/many other privileges, some of which are as under : 

(l) Under Section 80 of the Code of Civil Procedure, 1908, 
no suit shall be instituted against the Government or 
against a public officer in respect of any act purporting to 
be done by such public officer in his official capacity, 
until the expiration of two months after a notice in writing 
has been given. 

33. Ibid, at pp. 451-52 (SCO) : pp. 882-83 (AIR). 

34. (1977) 4 SCO 345 : AIR 1977 SO 2411. 

35. Ibid, at p. 358 (SCO): p. 2421 (AIR) ; See also Mohd. Hussain v. K.S. 
Dalipsinhji, (1969)3 SCC 429; S. K. Neogiv. Union of India, AIR 1970 
A. &N. 130; State v. Midland Rubber Co., AIR 1971 Kcr 228; Mohd. 
Tusufv. State of Madras, AIR 1971 Mad 468; Union of India v. Lalli, AIR 
L971 Pat 264; M. P. Mathur v. State of Bihar, AIR 1972 Pat 93 ; Chamar- 

v. Parpia, AIR 1950 Bom. 230; Tilka v. State, AIR 1959 All 543. 


2) Xjnder Section 82 of the said Code, when a decree is 
passed against the Union of India or a State or a public 
officer, it shall not be executed unless it remains unsatis- 
fied for a periodLja^^ 

^ ~~~~"~" 

Under Article 112 of the Limitation Act, 1963, any suit 
by or on behalf of the Central Government or any State 
Government can be instituted within the period of 30 

Lecture XI 

r JncleSwr^Jias not yet awakened from his dream of government of 
bureaucracy , but ever wanders further afield in crazy experiments 
in state socialism. Possibly some day he may awaken from 
his irrational dreams, and return again to the old conceptions of 
government, as wisely defined in the Constitution of the United 


Today, probably the giant corporations, the labour unions, trade associa- 
tions and other powerful organisations have taken the substance 
of sovereignty from the State. We are witnessing another 
dialectic process in history, namely, that the sovereign state 
having taken over all effective legal and political power from 
groups surrenders its powers to the new massive social groups. 


1 . Introduction 

2. Definition 

3. Characteristics 

(a) Legal entity 

(b) Statutory functions 

(c) Autonomy 

4. Classification 

(i) Commercial corporations 
(ii) Development corporations 
(tii) Social services corporations 
(iv) Financial corporations 

5. Working of Public Corporations 

(i) Reserve Bank of India 

(u) Oil and Natural Gas Commission (ONGC) 
(tit) Damodar Valley Corporation 

(to) Life Insurance Corporation of India 

(v) Road Transport Corporations 
(vi) Rehabilitation Finance Corporation 

6. Status and Rights of Public Corporations 

(a) Legal and constitutional status 

(b) Rights 

[ 282 ] 


7. Liabilities of Public Corporations 

(a} Liability in contracts 

(b) Liability in torts 

(c) Crown privilege 

8. Servants of Public Corporations 

9. Controls Over Public Corporations 

(a) Judicial control 

(f) General 
(ft) Writ of mandamus 

(b) Governmental control 

(t) Appointment and removal of members 
(ff) Finance 
(iff) Directives 

(c) Parliamentary control 

(i) Statutory provisions 
(it) Questions 
(ill) Parliamentary Committees 

(d) Control by public 

(i) Consumer councils 
(if) Membership 

10. Conclusion 


^ the 

^ _ 

faire* has been given up by the State. Today if has not 
confined its scope to the traditional, minimum functions of defence 
and adSmmslr^on_of justice. The old 'police state' has now 
Become a 'welfare state\ It sjeeks^ to "ensure social security and 
oM^ It also par ticlpater iif Trade, 

'socialist', 1 democratic republic, constitutional protection is afforded 
toJState monopoly^and ^necessary provisions are incorporated in 

State Policy /.*_ It is also provided that 'notwithstanding anything 
contained in Article 13, no law^iving^ effect to the policy ofjthe 
State towanJs^securing all or anj^ joif ithe pHnciples Jaid^ jdown 
in Fart W^hafl^Ei^j^j^^d to be void on the ground_th;at^is 
inrnmistgrjiwitli^ or takps. awaj^or^ abridges any of the rights 
conferred by Article Hy^Article 19 or Article 31 ; and no jaw 
containing a declaration^ jth_at it is for giving effect to such 

1 . Preamble to the Constitution of India, as amended by the Constitution 
(42nd Amendment) Act, 1976. 

2. Art. 19(6) (ii). 

3. Part IV. 


policy shall be called in question in any court on the ground 
that it does not give effect to such policy'. 4 The political 
philosophy of the 20th century has, therefore, impelled the 
Government to enter into trade and commerce with a view to 
making such enterprises pursue public interest and making them 
answerable to the society at large. 

Once, the (^verjanient ^ejajer^dlhe^eld of trade andkoimnerce^ 
it became in^re^ajdng^ machinery 

hithertolmpto of J.aw_and 

te and unsuitable for 

demanded a flexible approach^ 

to evolve a device which combined 

wltETpublic accountability. It was in response to this need that 

the institution dTpmbTIc corporation grew. 


No statute or court has ever attempted or been asked to define 
the expression 'public corporation'. 5 It has no regular form and 
no specialised function. It is employed wherever it is convenient 
to confer corporate personality. 6 In Sukhdev Singh v. Bhagatram 1 ^ 
Mathew, J. enunciated : 

Thej^ux_of thejnatter is ^ a 

lypV'ojn^^ froaiAe new social 

lK^ and that it therefore 

es_noj^^ of forcing 

uihto jjiem^^ needs of 


Garner 8 rightly elucidates : 

A public corporation is a legal _en tjt]/^sUblfahedjiormally 
bYj^rliamem jng^always jmder jeg^ autEo^^" usually in 
th^I^rni^^IspecSCC^ tEe~3uty of carry- 

ing out specified ^overnmentar Functions TnTffie natloriaTjhr 
tgrgst t those J^mffloBsj^ei^ to a cOnljparafivelylr^S' 

^o^trgT^^tHe^Execuli^^ wHile 

4. Art. 3 1C. 

5. Garner: Administrative Law, (1967), p. 277. 

6. Wade: Administrative Law, (1977), p. 140. 

7. (1975) 1 SCC 421 (458-459) : AIR 1975 SC 1331 (1357). 

8. Quoted in Sukhdev Singh's case (supra) at p. 450. 


the corporation .remains juristically an Li 
cnrectly responsible to "Parliament^ 


Even though a precise definition of 'public corporation' is not 
possibl^generally, it possesses the following characteristics 9 

(&yLeg9\ entity 

A public corporation is established by or under a statute ; 
nevertheless it possesses an independent corporate personality and 
it is an entity different from the Union or the State Government. 
It is a body corporate with perpetual succession ggj_gQfflmon seal. 
It can sue aH3TB(e^sueHIn its own name. 

Q>) x 3tatiitory functions 

A corporation performs functions entrusted to it by its consjj.- 

tuent statute or charter by which it is created. 
__~-^- - 

(iff Autonomy 

As stated above, a corporation has a separate jmd^mdepen- 
dent existence^. It has properties, and junds of JLt& own. And 
even though the ^nersh!]p7^control and management of the statu- 
tory corporation might be vested in the Union or the State, in the 
eye of law, the corporation is its own master. The 
a corporation jdo^not hoW_ 

_ . 
e^ meaning of Article 311 of the Constitution of 

~ " 


A logical classification of public corporations is not possible, 
and neither the Parliament nor the courts have made any serious 
attempt in that direction. But jurists have tried to categorise public 
corporations. Prot^Griffith and Street 11 divide public corporations 
into two groups : (f) Managerial economic bodies ; and (ii) Mana- 
gerial social bodies. Prof. Hood Phillips 12 divides them into four 

9. Set also Garner (supra) ; Prafulla Kumar v. C. S. T. Corpn.> AIR 1963 Cal 
116; Seervai: Constitutional Law of India, Vol. II (1976), p. 1314. 

10. Infra at p. 296. 

11. Principles of Administrative Law, (1967), pp. 281-84. 

12. Constitutional and Administrative Law, (1967), pp. 556-57, 


classes : (i) Managerial-industrial or commercial corporations ; () 
Managerial-social services corporations ; (iff) Regulatory corpora- 
tions ; and (io) Advisory corporations. According to Prof. Gar- 
ner 18 , they can be divided into three groups : (f) Commercial 
corporations ; (11) Managerial corporations ; and (Hi) Regulatory 
corporations. In India, public corporations may be classified into 
four 'ill-assorted* main groups : 

(f) Commercial corporations ; 
(ff ) Development corporations ; 
(fff) Social services corporations ; and 
(iv) Financial corporations. 

[i) Commercial corporations 

This group includes those corporations which perform com- 
mercial and industrial functions. The managing body of a 
commercial corporation resembles the board of directors of a public 
company. As their functions are commercial in nature, they 
are supposed to be financially self-supporting and they are also 
expected to earn profit. At the same time they are required to 
conduct their affairs in the interests of the public and do not 
operate merely with a profit-earning motive unlike a private ind- 
ustry. State Trading Corporatj^ 1 _Hun^u^^ 
Indian Mrlines GoTpQrltiQrTand Air IndiaJ[iit^atbnal are some 
commercial corporations. 

(ii) Development corporations 

The modern state is a 'Welfare State". As a progressive 
State, it exercises many non-sovereign functions also. Develop- 
ment corporations have been established with a view to encourage 
national progress by promoting developmental activities. As they 
are not commercial undertakings, they may not be financially 
sound at the initial stage and may require financial assistance 
from the government. Oil and Natural^Gas^Gommission, Food 
Corporation of IndiaT" Wa twnal__Small__ 
Damodar VaUey"Corporation, River Boards, Wareh 
ratiofls, are development corporations. 

13. Administrative Law, (1963), pp. 257-58. 


ial Services corporations 

Corporations which have been established for the purpose of 
providing social services to the citizens on behalf of the govern- 
ment are not commercial in nature and therefore, are not expected 
to be financially self-supporting. In fact, as their object is to 
render social service, they are not required to conduct their 
affairs for the purpose of earning profits. Generally, they depend 
on the government for financial assistance. Hospital Boards, 

bilitation J^j^^_^^^^S^tL^]^ examples of social services 

Financial corporations 

This group includes financial institutions, like Reserve Bank 
of India^StateJBank of India, Industrial Finance Corporation, 
Life Insurance Corporation of India > Film 

They advance loans to institutions carrying on trade, business 
or industry on such terms and conditions as may be agreed upon. 
They may provide credit to those institutions which find it 
difficult to avail of the same or which do not find it possible to 
have recourse to capital issue methods (e. g. Industrial Finance 
Corporation). They may give financial assistance on reasonable 
terms to displaced persons in order to enable them to settle in 
trade, business or industry (e.g. Rehabilitation Finance Corpora- 


The constitution of the corporations and their functions, 
powers and duties, 14 may be understood by a study of the actual 
working of a few public corporations. 

(i) Reserve Bank of India 

The Reserve Bank of India was constituted under the Reserve 
Bank of India Act, 1934. It was nationalised in 1948 by the 
Reserve Bank (Transfer to Public Ownership) Act, 1948. It is a 
body corporate having perpetual succession and a common" sea*. 

14. See also R. S. Arora: State Liability and Public Corporations in India, (1966) 
Public Law 245. 


It can sue andbe sued. It wgs primarily established to regulate 
tile credit structure, to carry on banking business and to secure 
monetary stability in the country. It is managed by a Board of 
Directors, consisting of a Governor, two Deputy Governors and 
a number of directors. The Governor and the Deputy Governors 
are whole^time employees and receive such salaries and allowances, 
as may be fixed by the Board with the approval of the * Central 
Government. They are appointed by the Central Government 
for a term of five years and are eligible for re-employment. 

Under the Banking Companies Act, 1949, the Reserve Bank 
has extensive powers over the banking business in India. It grants 
licences without which no company can carry on banking 
business. Before granting such licence, it can enquire into the 
affairs of the company to satisfy itself as regards the company's 
capacity to pay back to its depositors. It can cancel a licence on 
the ground that the conditions specified therein have not been 
complied with. Even after granting such a licence it may enquire 
into the affairs of any bank, inspect its books of" accounts and 
hold an investigation either under the direction of the Central 
Government or suo motu. The report of the enquiry will have to 
be sent to the Central Government. A copy of such report will 
also be given to the banking company concerned. It can make 
a representation to the Central Government on any point arising 
out of the report. Upon this report, the Central Government 
may order the suspension of the banking business by the company 
concerned or direct it to apply for its liquidation. 

Very wide discretionary powers have been conferred on the 
Reserve Bank. It determines the policy relating to bank 
advances, frames proposals for amalgamation of two or more 
banks. It may make a representation for the operation of the 
Banking Companies Act to be suspended. The Governor of the 
Bank is empowered to suspend the operation of the Act for 30 
days in an emergency. The validity of these wide discretionary 
powers has been upheld by the courts. 15 

(ii) Oil and Natural Gas Commission (ONGC) 

The Commission was first established in the year 1956 as a 

15. Vclleukulu's case (supra), p. 11 : Sajjan Bank v. Reserve Bank of India, AIR 
1961 Mad8. 


government department. By the Oil and Natural Gas Commission 
Act, 1959, the Commission was given a status of a public corpora- 
tion. It is a body corporate enjoying perpetual succession and 
a common seal. It can sue and be sued. It can hold and 
dispose of property and can enter into contracts for any of the 
objects of the Commission. The Commission__Qnsisls of a 
Chairman and^ two_or mor^iotjj^^ 

duly appointed by the Central Government. Except a Finance 
Member, others may be part-time or full-time members. The 
Central Government prescribes the rules fixing their terms of office 
and conditions of service. It can remove any member even 
before the expiry of the period, after issuing a show-cause notice 
and a reasonable opportunity of being heard. The Commission 
has its own funds and all receipts and expenditures are to be made 
to and from such funds. It also maintains an account with the 
Reserve Bank of India. It can borrow money with the prior 
approval of the Central Government. Its functions range from 
planning, promotion, organisation or implementation of pro- 
grammes for the development of petroleum resources to production 
and sale of petroleum products it produces. It conducts geolo- 
gical surveys for the exploration of petroleum and undertakes 
drilling and prospecting operations. The Commission determines 
its own procedure by framing rules and its decisions are by 
majority vote. The Government can acquire lands for the 
purposes of the Commission under the provisions of the Land 
Acquisition Act, 1894. The purposes connected with the Commis- 
sion's work are deemed to be public purposes within the meaning 
of the aforesaid Act. 

(iii) Damodar Valley Corporation (DVG) 

The Damodar Valley Corporation was established under the 
Damodar Valley Corporation Act, 1948. Like other corporations, 
it is a body corporate having perpetual succession and a common 
seal. It can sue and be sued. The Board of Management 
consists of a Chairman and two members appointed by the 
Government of India in consultation with the Governments of the 
States of Bihar and West Bengal. The members are whole-time, 
salaried employees of the Corporation. The Government of 
India is empowered to remove any member for incapacity or 


abuse of position. It also appoints the Secretary and the Fin- 
ancial Advisor of the Corporation. Their pay and conditions 
of service are fixed by the regulations of the corporation, made by 
the Corporation with the approval of the Central Government. 

The objects of this Corporation are to promote and operate 
irrigation schemes, water supply, drainage, generation of electricity 
and electrical energy, navigation, etc. in the river Damodar. 
The river is well known for its notorious propensities. Due to 
heavy flooding which causes widespread damage and destruction 
in the States of Bihar and West Bengal, one of the important 
objects of the Corporation is flood control. It is empowered to 
establish, maintain and operate laboratories, experimental insti- 
tutions and research stations to achieve the above-mentioned 
objects. It helps in construction of dams, barrages, reservoirs, 
power houses, etc. It supplies water and electricity and can 
levy rates for it. 

The Corporation is empowered to acquire, hold and dispose 
of property. It has its own funds deposited in the Reserve Bank 
of India. It can borrow money with the previous approval of 
the Government of India. It is liable to pay taxes on its income. 
It has a separate and independent existence and it is an autonomous 
body independent of the Central or the State Governments. 
There is no interference by the government in the matter of execu- 
tion of its programmes and day-to-day administration. Never- 
theless, the Corporation is subject to overall control of the Central 
Government, the Parliament and the State Legislatures of Bihar 
and West Bengal. It is to send its annual reports to the govern- 
ments. They are placed on the tables of the Parliament and the two 
State Legislatures. Parliament and the State Legislatures exercise 
their legislative control through debates, questions and resolutions. 
The Central Government may also give directions to the Corpor- 
ation with regard to its policy. The accounts of the Corporation 
are to be audited in the manner prescribed by the Auditor-General 
of India, Any dispute between the Corporation and the three 
governments associated with it has to be settled by an arbitrator 
appointed by the Chief Justice of India. 

(iy) Life Insurance Corporation of India (LIC) 

The Life Insurance Corporation of India was established 


under the Life Insurance Corporation Act, 1956. It shares certain 
common characteristics with the other corporations. It is a body 
corporate with perpetual succession and a common seal. It has 
power to acquire, hold and dispose of property. It can sue 
and be sued. The Corporation was established 'to carry on life 
insurance business' and given the privilege of carrying on this 
business to the exclusion of all other persons and institutions. 
The Act requires the corporation to develop the business to the 
best advantage of the community. The Central Government may 
give directions in writing in the matters of policy involving public 
interest. The Corporation shall be guided by such directions. 
95 % of the profits are to be reserved for policy holders and 
the balance is to be utilised as the Central Government may 

The Corporation is an autonomous body as regards its day-to- 
day administration. It is free from ministerial control except 
as to the broad lines of policy. 

(v) Road Transport Corporations 

Various State Governments have established Road Transport 
Corporations for the respective States under the Road Transport 
Corporations Act, 1950; e. g. Gujarat State Road Transport 
Corporation. A Road Transport Corporation is managed by a 
Chief Executive Officer, a General Manager and a Chief Accoun- 
tant appointed by the State Government concerned. The Central 
Government contributes the capital in part, while the remaining 
capital is to be borne by the State Government concerned in 
agreed proportions. The Corporation can raise capital by issuing 
non- transfer able shares. The capital, the shares and the 
dividends are guaranteed by the government. The Corporation is 
a legal entity independent of the State Government. It is a body 
corporate having perpetual succession and a common seal. It 
can sue and be sued in its own name. Its employees are not 'civil 

Servants' Within thft m par " n nf ArHrlg 311 nf tha 

of India! 16 though they are jL^rped to be 'public servants* within 
the meaning of Section 21 of the Indian Penal Code, 1872. 

16. See infra, at p. 296. 


The primary function of the Corporation is to provide efficient, 
adequate, economical and a properly co-ordinated system of road- 
transport services in the country. The State Government is 
empowered to issue general instructions for the efficient perform- 
ance of the functions of the Corporation. It manufactures, 
purchases, maintains and repairs rolling stock, appliance, plant 
and equipment. It can acquire, hold and dispose of property. It 
can borrow money subject to the approval of the State Govern- 
ment. The budget has to be approved by the State Government. 
Its accounts are to be audited by government auditors. The 
government is empowered to ask for the statements, accounts, 
returns and any other information. It can order enquiries into 
the affairs of the Corporation. It may take over any part of the 
undertaking in public interest or supersede the Corporation, if it 
appears that the Corporation is wholly unfit and unable to perform 
its functions. It can also be wound up by a specific order of 
the State Government made after the previous approval of the 
Central Government. 

(vi) Rehabilitation Finance Corporation 

The Rehabilitation Finance Corporation was established under 
the Rehabilitation Finance Corporation Act, 1948, It is a 
body corporate with perpetual succession and a common seal. 
There are neither directors nor shareholders. It is managed by a 
Chief Administrator as its Chairman and a number of official and 
non-official members appointed by the Central Government. 
They hold their offices during the pleasure of the Central Govern- 
ment. The Chairman (Chief Administrator) is a whole-time 
employee and the terms and conditions of his service are such as 
may be determined by the Central Government. . Its moneys are 
deposited with the Reserve Bank of India and duly invested in 
approved government securities. The Central Government is 
empowered to issue directions to the Corporation in respect of 
its general policy and the Corporation is required to act in accord- 
ance with those directions. 

The object of the Corporation is to provide financial assistance 
on reasonable terms to displaced persons in order to enable 
them to settle in trade, business or industry. The Corporation is 
assisted by an Advisory Board and Regional Committees. In 


reality, the Administrator acts as a big money-lender, with very 
extensive powers of recovery of loans, not available to a private 
money-lender. For example, he can recover the amount of loan 
as arrears of land revenue. The Corporation is exempted from 
payment of income tax. The provisions regarding winding up 
of companies and insolvency do not apply to it. However, it 
has to furnish a half-yearly report and other necessary inform- 
ation of its activities as required by the Central Government. 


(a) Legal and constitutional status 

corporation possesses a separate 


a.nd distinct corporate personality. It is a body corporate with 
perpetual succesripn and .a cornrnonjeal. """If can" sue and" Be ~ sued 
injts_ own name, Public^^corporations have been recognisedT In 
LhejGonstj tntJQji . 1 1 f^rjegsiy pr o vid I eTlliaOBfil^Staler .mayi^Cirry 
_t r ade ,_ _i u d, aitry *. 1> asiness^^r^enaca^iiker itself JDT_ through 

_ _ _ , . ^ _ 

a corporation owned or controlled by it to the exclusion of 
citizens. 17 The~~laws pFovidtng iorlSTafe" monopolies are also 
saveH^5y"thG Constitution. 18 

(b) Rights 

A public corporation is a legal entity and accordingly, like 
any other legal person, it can sue for the enforcement of its legal 
rights. It should not, however, be forgotten that it is not a 
natural person, faut merely an artificial person, and therefore 
cannot be said to be a citizen within the meaning of the Citizen- 
ship Act, 1955, Therefore^ a corporation cannot claim any 
fundamenta]ight conferred by the Constitution only on citizens. 1P 
All the same itsshareholders^ being citizejis, can claim protection 
of those fundamental rights. 20 

17. Arti. 19(6) (ii). 

18. Arti. 305. 

19. Arti. 19, S. T. Corpn. of India v. C. T. 0., AIR 1963 SC 1811 ; Mo-China 
Steam Navigation Co. v. Jagjit Singh, AIR 1964 SC 1140; Tata Eng. Co. v. 
State of Bihar, AIR 1965 SC W ', Barium Chemicals v. Company Law Board t 
AIR 1967 SC 295: (1969) 1 SCC 475 ; Amritsar Muni. v. State of Punjab 
AIR 1969 SC 1100; State of Gujarat v. Ambica Mills, (19743 4 SCC 656 : 
AIR 1974 SC 1300. 

20. Barium Chemicals, (supra) ; R.C. Cooper v. Union of India, (1970) 1 S<?C 248 : 


An interesting question which arises is whether fundamental 
rights conferred by the Constitution on a person or a citizen can 
be enforced against a public corporation. The riffhtscohferred 
by Part III of the Gonstitution^can J>e enforced not j>nljr_ agjimst 

-^L ?locaLor other ^authorities'. 81 _fi 
^ view had been taken 

by the High Court of Madras and it was held that the Funda- 
mental ' rigEts T cannot be enforced against a University. But in 
Kajasthan Eticfnctly~c^^3upia) t the Supreme Cpurt^took a liberal 
v7ew*and held tHaf TheTSlectricity Board fell within the category 
or 'other authorities* within the. meaning of Article 12 of the 
CoMtitmion7ahd Tundamental rights can be enforced against it. 
After the momentous pronouncement of the Supreme Court in 

is well settled that fundamentaf 

rights can be enforced against public 

Liability in contracts 

Since a public corporation is not a government department, 
the provisions of Article 299 of the Constitution of India do not 
apply to it and a contracit entered into between a public corpora- 
II55T and a" private individual" heed not satisfy the requirements 
fTBl fete 299. J^mlla^ 

Government does not apply mjcase of 

suits against a public corporation 

(b) Liability in torts ~ ' 

A public corporation is liable in tort like any other person. 
It will be liable for the tortious acts committed by its servants and 

AIR 1970 SC 564; Bennet Coleman & Co. v. Union qf India, (1972) 2 SCO 
788: AIR 197* SC 106; Jtoptan* Assurance Co. v. Union of India, (1973) 1 
SCC 310: AIR 1973 SC 602; State of Gujarat v. Ambica Mills, (supra); 
Godhra Electricity Co. Ltd. v. State of Gujarat, (1975) 1 SCC 199 : AIR 1975 

21. Arti. 12. 

22. AIR 1954 Mad 67. 

23. (1975) 1 SCC 421 (446-47) : AIR 1975 SC 1331 (1347-48)1356. See also 
Sirsi Municipality v. C. K. Francis, (1973) 1 SCC 409 : AIR 1973 A SC 855. 
For detailed discussion see the recent decision of the SC in Ramana 
^Dayaram Shetty v. International Airport Authority : C.A. No. 895 of 1978; 
deed, on 4-5-1979. 


employees 'to the same extent as a private employer of full age 
and capacity would have been'. 24 This principle was established 
in England in 1866* 6 , and has been adopted in India also. A 
public corporation cannot claim the immunity conferred jonjthe 
government under Article 300 of the Constitution. Similarly, 
all defences available' to a private individual Jnjan^ action against 
him for tortious acts will also be available to a public corpora- 
titm: But a statute creating a public corporation may confer 

with regard to the acts committed by them in goo^jaith^in 
discharge of their duties^ For example, Section 28 of the Oil 
and Natural Gas Commission Act, 1^59 reads as under : 28 

~ !7 jjojuitj jDrospcution or otheiL-.k.gaL4U^ieedings shall lie 
^against the Commission ._jQr^any_member or employee oTfhe 
^ornmission lor^anything whjchis in gob'd faith done or 
intendecTto bj^donj^ rule or 

It is submitted that the immunity conferred on statutory 
corporations for tortious acts committed by its servants is unjusti- 
fiable and against the principle of equality before the law and 
equal protection of law guaranteed under^ the^ provisions jof flfrE 
Constitution of Indla^ Jain and Jain 87 rightly state : "In the 
modern welfare state, when ~th"State~ Is Centering into business 
activities of all kinds, the protection clause in the statutes 
establishing corporations seems to be incongruous and unjusti- 

(c) Grown privilege 

A public corporation is only 'a public authority with large 
powers but in no way comparable to a Government department 
and therefore, the doctrine of 'Crown privilege* cannot be claim- 
ed by public corporations. In Tomlin v. Hannaford 29 , Denning, 
L. J. (as he then was) observed f* - ~ 

In the eye of the law, the corporation is its own mastei 

24. R. S. Arora : State Liability and Public Corporations in India, (1966) Public 
Law 238. 

25. Mersey Dock Trustees v. Gibbs, (1866) LRIHL 93. 

26. See also S. 47 of the LIC Act, 1956. 

27. Principles of Administrative Law, (1973), p. 557. 

28. (1950) 1 KB 18. 


and is answerable as fully as any other person or corporation. 
It is not the Grown and has none of che immunities or 
privileges of the Crown. Its servants are not civil servants, 
and its property is not Grown property. It is as much bound 
by Acts of Parliament as any other subject of the King. 
It is, of course, a public authority and its purposes, no 
doubt, are public purposes, but it is not a government 
department nor do its powers fall within the province of 
government. 29 


Since a public corporation^ jijseparate and distinct legal entity 
from the government, its employees and servants are not civil 
servants and cannot 

Xrficle jHjgjjigjGapstitutiQn^JS^cently, injtb^leading case of 
'Sukfdw Singh y. Bhagatram? , the Supreme CourfTemarkeidT^ 

The employees of these statutory bodies have a statutory 
status and they are entitled to declaration of being in em- 
ployment when their dismissal or removal is in contraven- 
tion of statutory provisiojis. 81 

x Thus, an employee of the Oil and Natural Gas Commission, 32 
the^Life Insurance Corporation of India, 33 the Industrial Finance 
Corporation, 34 the Hindustan Steel Ltd., 35 the Hindustan Antibio- 
tics Ltd., 36 the State Transport Corporation, 37 the State Bank 
of India, 38 the Damodar Valley Corporation, 39 the Hindustan 
Cables Ltd., 40 the State Electricity Board, 41 or the District Board, 42 

29. Ibid, at p. 24. See also Garner : Administrative Law, (1963), p. 249. 

30. (1975) 1 SCO 421 : AIR 1975 SO 1331. 

31. Ibid, at p. 447 (SCO) ; p. 1348 (AIR). 

32 . Sukhdev Singh's case (supra) . 

33. Ibid. 

34. Ibid. 

35. S.L.Agrawalav. Hindustan Steel Ltd. (1969) 1 SCO 177: AIR 1970 SO 

36. Hindustan Antibiotics Ltd. v. Workmen, AIR 1967 SC 948. 

37. Mafatlal v. State Transport Corpn., AIR 1966 SC 1364. 

38. Suprasad v. State Bank of India, AIR 1962 Cal 72. 

39. Ranjit Ghosh v. Damodar Valley Corpn., AIR I960 Cal 549. 

40. Abani Bhusan v. Hindustan Cables, AIR 1968 SC 124. 

41. Jai Dayal v. State of Punjab, AIR 1965 Punj 316. 

42. JR. Srinivasan v. President, District Board, AIR 1958 Mad 211. 


the Sindri Fertilisers and Chemicals Ltd. 43 , cannot be said to be a 
'civil servant' so as to claim protection under Article 311 of the 
Constitution of India. 

The following principles have been deduced by an eminent 
author on Constitutional Law 44 with regard to the status of em- 
ployees of a statutory corporation 

a statutorycorporation has a separate . jgd_Jndependent_ 
existence J*nd is a different entity from the Union or 
the State Governrn^nj^jwith i tsjD wri J^roperty and its 
own fund and the employee^ of the corporation do not 
hold civil post under the Union or the State ; 

#*) it makes little difference in this respect, whether the 
Union or the State holds the majority share of the 
Corporation and controls its administration by policy 
directives or otherwise ; 

(wt) it also makes little difference if such a statutory Cor- 
poration imitates or adopts the Fundamental Rules to 
govern the service conditions of its employees ; 

(iv) ^though I* 16 ownership, control and management of 
the statutory cor^Joraidotr may be7~mTaH7^v^slFd"ih 
the Union or State, yet in the eye of law the corpora- 

employees do not hold_an^ < civil post under the Union 

~~oFthe State' ; ~" 

(v) if, however, the State or the Union controls a post 
under a statutory corporation in such a manner that 
it can create or abolish the post or can regulate the 
conditions subject to which the post is or will be held 
and if the Union or the State pays the holder of the 
post out of its own funds,, then although the post carries 
the name of an office of the statutory corporation, it 
may be a civil post under the State or the Union. 

To these,one more mayjpe added- 

(vi) even if the statute creating a public corporation 

43. Subodh Ranjan v. Sindri Fertilisers, AIR 1957 AP 402. 

44. Seervai : Constitutional Law of India, Vol. II (1976), pp. 1487-88. 


on its employees the status of public servants for certain 
jpurposes" they cannot theje^yjhgrn^^ 
..!J tr ?SLj^ e provisions^oF Article TiT^oTTEe 


Thus, in Ranchhodbhai v. Collector of Panchmahah* 1 > a Division Bench 
of the Gujarat High Court held that by virtue of a fiction created 
by the legislature under Section 60(4) of the Bombay * Village 
Panchayats Act, 1958, a person appointed as a Secretary under the 
Act of 1933 was deemed to be one appointed by the State Govern- 
ment under Section 60(2) of the Act of 1958, but the said fiction 
did not confer on such person the status of a government servant. 
The Court in conclusion, stated : 

In our judgment, applying the aforesaid principles to 
the facts of the present case, one important fact which emerges 
is that petitioner was a servant of the panchayat, entrus- 
ted with the duties of the panchayat and under the executive 
and disciplinary control of the panchayat, before the Act 
of 1958 came into operation. The panchayat, though 
carrying out the functions which usually one associates with 
a Government, is not the same thing as a Government. 
It is a corporate body, having perpetual succession, a 
common seal and is capable of holding property in its 
own right. It is under such a body that petitioner was 
employed at the time of the coming into operation of the 
Act of 1958. As we have already pointed out, the status 
of petitioner substantially remains the same after the com- 
ing into operation of the Act of 1958. The only change 
which has taken place is that, instead of his having been 
appointed by the panchayat, by a legal fiction, he is to be 
treated as having been appointed by the Government. In 
our judgment, this single factor does not make any radical 
change in the status of petitioner. Even if we were to proce- 
ed on the basis that the panchayat was not liable to make 
payment to petitioner and that petitioner was entitled to 
receive his salary and allowances from the Government, 

45. S. 56 of the Damodar Valley Corporation Act, 1948 reads : 

"All members, officers and servants of the Corporation, whether 
appointed by the Central Government or the Corporation, shall be deem- 
ed, when acting or purporting to act in pursuance of any of the provisions 
of this Act to be public servants within the meaning of S. 21 of the 
Indian Penal Code." 

46. Jain and Jain (supra) at p. 541. 

47. AlR 1967 Guj 92 : (1966) 7 GLR 1024. 


having regard to the facts that petitioner still has to perform 
the duties assigned to the panchayat and remains under 
the disciplinary control of the panchayat, it cannot be 
stated that the post that petitioner was holding, though a 
civil post, was under the State. In our judgment, therefore, 
the contention of petitioner that he was entitled to the 
protection under Article 311 of the Constitution, must be 
rejected. 48 

Even though the employees of public corporations are not 
civil servants and cannot claim protection under Article 311 of 
the Constitution, they can claim the protection of Articles 14 
and 16 of the Constitution. The rules and regulations framed 
by such corporations containing terms and conditions of appoint* 
ment are imperative and the corporations are bound to apply 
them as they have the force of law. T^^jemgloyees of public 
corporations have a statutory status and they are entitled to a 
declaration of being in ^employment _when their dismissal or 
removal^ is held to be in contravention of statutory provisions. 
An ordinary^ IHSmduaT governed by the contractual relationship 
of master and servant^an^sue H^^ast^^onjy^for damages for 
breach of contract. In the case of statutory bodies, there is 
ncP^^ I7gn^ni5e~"5f 

characterjof statutory bodies. And compliance 
poration with thej^gmrements^ of law may be enforced by a court 
ofjavv^ydeclaring dismissal in violation of rules and regulation* 
to be void arid by granting reinstatement. 49 


The main purpose of establishing public corporations is ta 

autonomous Bodies. In TaclJ 

these corporations haveHBeen granted very wide powers and there 
islur^^ authority in^exercise of these powers 

by the corporations. Yet, it is necessary that some control over 
these corporations sho{H<fT5([3>^^ "tHe powers conferred 

on such corporatiomjg^^jn^i^arbitr^rliy. exercisjed__pr abused, 
anfllt ^^ ^ayjioj_j3conae tfaa. ^Jourjh. .organ* joXj^ 

The various controls may now be discussed: 

48, AIR 1967 Guj 92, at p. 100; (1966) 7 GLR 1024, pp. 1038-39. 

49. Sukhdeo Singh's case (supra) ; Sirsi Municipality s case, (supra). 


fa) Judicial control 


ince a public corporation is a legal entity it can^sue and 

a common seal. Legal proceedjng^_may^e_taken i by or against 
aTcbrpofatioiria its~^corpQrate name. It is a distinct and sepa- 
rate entity from the Crown or the Government. 50 Jurls31ctlori 
of courts over^a_jgublic ^cprpgmtjgn is the same as it is over any 
private or pubUc^^company except jthajJh.e_Qwers of thejormer 
ctepencl on lIuT^prw^ statute while the powers 

oTlT company are derived from the terms of its Memorandum 
^Association. 51 Tn some__statutes an express provision is made 
enabling a^jcorgoration i Jo_ bejsued. But even in the absence 
of siicE"a provision, a corporation can Tie sued like any other 
lll^ J^^ to, a 'jjerson* it includes 

a CQr P Qra ^ Q J^ a l s ^>_ 52 Accordingly, a public corporation is liable 
For^ajreach of contract and also in tort^Jbr tortious act^of 
its servants like. any other^ person. 5 ^ iTisTiable'To jpayTficornB 
fa3Tunles3_,expre5ly_ exempted and cannot invoke the exemption 
granted to the^State Bunder Article 289 of the Constitution of 
India. 64 It is bouncTT>y a statute. It cannot claim * Grown 

() Writ of mandamus 

As discussed in Lecture IX (p. 214), a High Court or the 
Supreme Court may issue a writ of mandamus against a corporation 
directing performance of its statutory duty. 56 The point is con- 
cludcd"By the iujpFem^^oiuTmnre welFkhown case of SiAhdev_Singh 
v. Bhagafram^p. 299), wherein the Court held that a public cor- 

50\ S. L. Agrawala v. Hindustan Steel Ltd., (1969) 1 SCO 177: AIR 1970 SC 
1150 ; H. E. M. Union v. State of Bihar, (1969) 1 SCO 765 : AIR 1970 SC 
82; State of Bihar v. Union of India, (1970) 1 SCO 67 ; AIR 1970 SC 1446. 

51. Smith v. London Transport Executive, (1951) AC 555. 

52. S. 3(42) of the General Clauses Act, 1897. 

53. Supra, at pp. 294-95". 

54. A.P.S.R. T. C. v. /. T. 0., AIR 1964 SC 1486. 

55. Supra, at pp. 295-96. 

56. Supra, at p. 214.\ See aLo R. D. Shettfs case (supra). 


poration is an 'authority* withinjhe meaning of Article 12 of the 
Hnns^^ to the writ jjjurisdi.Qtion of the Supreme 

Court and High Goumjindex^^k^2_arid Article 226 respec- 

Even though, theoretically, there is no difficulty in issuing a 
writ of mandamus against a corporation, there are many practical 
problems. 67 _ >r~ - - 

^(1) Sometimes, duties imposed by a statute are so vague that 
it is impossible for the court to issue a writ of mandamus 
for the performance of that duty. Ge^rjaljY^stalujpjx 
provisions require a public corporation 'to do such things 

expedient' or to provide 

* efficient 7 ^ or e jij!eguate^^ervice to the public at 'reason* 
able* charges^ It is doubtfuf wEetlierjiny court could be 
^persuaded to avoid a contract made with the corporation 
^rTtBe ground that the charges were not 'reasonable*,* 8 
as it involves more or less subjective satisfaction on the 

partof the corporation^^jicjej?aed-r^ j " ~~ 

t --- . 

(2) Sometimes, the duty imposed on a public corporation is 
expressed in such general terms that, apart from establish- 
ing that failure has occurred, it does not seem that the 
legislature intended to give a cause of action to any 
person for failure to discharge the duty. 59 Garner 60 
rightly states: "In many cases, however, the statutory 
powers of a public corporation are so widely drawn that 
it becomes virtually impossible even to visualise circum- 
stances in which any court could hold any particular act 
of such a corporation to be ultra vires". 

very object of establishing a public corporation is 
to set up an autonomous body with wide discretionary 
powers to enable it to survive and make headway in the 
competitive and dynamic business world and to free it 
from stringent control ordinarily imposed on government 

57. Garner: Adminstrative Law, (1963), p. 260; Jain and Jain (supra), pp. 557- 

58. Garner (supra). 

59. Jain and Jain (supra), p. 558. 

60. Administrative Law, (supra) . 


departments. _In view of the above, the courts will be 
loath to labellnany duties as maScfatofyT Consequently 
there will be very few cases in which a writ of mandamus 
can be issuecT ~ ~~ 

> even though the statute uses the expression 
"shall", the court may interpret the said provision as 
directory and not mandatory or obligatory and may not 
issue a writ of mandamus for performance of that duty 
imposed upon a corporation by the statute. 

(5) There is one more practical difficulty in the way of the 
petitioner for getting a writ of mandamus. Generally, be- 
fore a writ of mandamus is i^ujdj^ams^^ 
the petitioneFBas to prove that a legal duty was imposed 
on the corporation and tlTat he has a legal right to ask 
.for performancejpf that duty,^n3 tHusTBe was an 'aggrie- 
ved' personT But this is very difficult to Jjrove _ and the 
COTfTniayJiold that the interest of the petitioner was not 
^^^T^ffected by non-performance of the duty by the 
corporation and may not issue mandamus on the ground 
that the petitioner has no 'locus standi ^ 

(6) .Generally, the grievances against a public corporation 
/ are more in respect of quality of services rendered by the 
corporation rather than the legality of its actions. 

(7VIf an alternative remedy is available to the petitioner, 
the court may refuse to grant mandamus. 

(8) As Prof. Robson 81 states, sometimes, a statute confers 
powers on a public corporation in subjective terms and 
empowers it to be the judge of the extent of those powers. 
In such cases, the doctrine of ultra vires ceases to have 
any meaning, by whatever legal machinery it is sought 
to be invoked. 

Taking into account all these difficulties, Garner 62 states: 
"There has yet been no litigant bold enough to ask for an order 
of mandamus against a public corporation and it is perhaps doubt- 
ful whether he would achieve much by so doing". 

61. Cited by Garner (supra) at p. 253. 

62. 'ibid, at p. 252. 


(b) Governmental control 

As the judicial control over public corporations is not effect- 
ive it needs to be supplemented by other controls. Government 
also exercises some control and supervision over such corporation! 
as the custodian of public interest in different ways : 

(ft Appointment and removal of members 

Generally, the power of appointment and removal of the 
Chairman and the members of a public corporation is vested in 
the Government. 63 This is the key provision and the most effect- 
ive means of control over a public corporation. In some cases, 
the term of office of a member is also left to be determined by 
the government. In some statutes, a provision is made for 
removal of a member on the ground that the member is absent 
from meetings for a specified period, he is adjudged a bankrupt or 
is "otherwise unsuitable" to continue as a member. In addition to 
appointment and removal of members, previous approval of the 
government is required for framing the rules relating to service 
conditions of such members. 


The government exercises effective control over a public 
corporation when such corporation is dependent on the govern- 
ment for finance. A statute may require previous approval of the 
government for undertaking any capital expenditure exceeding a 
particular amount. 64 It may also provide to submit to the govern- 
ment its programme and budget for the next year and to submit 
the same in advance. 65 The Comptroller and Auditor-General 
exercises control in the matter of audit of accounts submitted by 
public corporations. 


An important technique involved to reconcile governmental 
control with the autonomy of the undertaking is to authorise the 
government to issue directives to public undertakings on matters of 

63. S. 4 of the Damodar Valley Corporation Act, 1948. 

64. S. 35 of the Air Corporations Act, 1953. 

65. S. 26 of the Food Corporations Act, 1964. 


"policy"* 66 A statute may empower the government to issue such 
directives as it may think necessary on questions of policy affecting 
the manner in which a corporation may perform its functions. 67 
The corporation will give effect to such directives issued by the gov- 
ernment. A statute may also provide that in case 'any question 
arises whether a direction relates to matter of policy involving 
public interest, the decision of the Central Government* thereon 
shall be final'. 68 It is very difficult to draw a dividing line between 
matters of 'policy' and 'day-to-day' working of a public corpora- 
tion and by this method, the government can exercise effective 
control over public corporations. But unfortunately, in practice, 
the government hardly exercises its power to issue policy directives. 
Considering the provisions of Section 21 of the Life Insurance 
Corporation Act, 1956, the Chagla Commission has rightly ob- 
served : 

In my opinion, it is most unfortunate that the wise and 
sound principle laid down in Section 21 has not been adhered 
^ to in the working of the Life Insurance Corporation. 69 

c) Parliamentary control 

Public corporations are created and owned by the State, 

time they enjoy i'uii or 

partial monopoly Jn ^t -, 

TReyare expect e^o^x^dsje^bjeir^^ public interest. 

It is, therefore, necessary for Parliament to exercise someclegree 
aii3~mo3e^ of control andjsuperyisjion over these corporations. The 
metho3s"adopted to exer^^^u^ch^ntrol ^^^numerlcally fouE "~ 

(i) Statutory provisions 

All public corporations are established by or under statutes 
passed by Parliament or State legislatures. The powers to be exer- 
cised by such corporations can be defined by them. If any corpora- 
tion exceeds or abuses its powers, Parliament or the State legislature 
can supersede or even abolish the said corporation. Even though this 

66. Jain and Jain (supra) at p. 546. 

67. S. 21 of the LIC Act, 1956. 

58. Ibid. See also S. 34(1) of the Air Corporations Act, 1953. 

69. fc^AGLA COMMISSION : Report on the Life Insurance Corporation, (1958). 


type of controljs not frequently employed t U^s^jabyUtary check on 
the ^rbitiraryexercise of power by the corporation. 

(it) Questions 

Through this traditional method, the members of Parliament 
put questions relating to the functions performed by public corpora- 
tions to the Minister concerned. But this method has not proved 
to be very effective because of the authority of public corporations 
in their fields. As Garner 70 states : "The House of Commons is not 
a meeting of the shareholders of a public corporation, nor are the 
Ministers of the Grown in the position of directors of corporation". 

Accordingly, broad principles subject to which questions rel- 
ating to these undertakings can be asked have been laid down, 
namely, questions relating to policy, an act or omission on the part 
of a Minister, or a matter of public interest (even though seemingly 
pertaining to a matter of day-to-day administration or an individual 
case), are ordinarily admissible. Questions which clearly relate 
to day-to-day administration of the undertakings are normally not 
admissible. 71 

(Hi) Debates 

A more significant and effective method of parliamentary 
control is a debate on the affairs of a public corporation. This 
may take place when the annual accounts and reports regarding 
the corporation are placed before the Parliament for discussion in 
accordance with the provisions of the concerned statute. There 
is no general obligation on the part of all corporations to present 
their budget estimates to Parliament. Estimates Committee 72 
therefore recommended that corporations should prepare a perfor- 
mance and programme statement for the budget year together with 
the previous year's statement and it should be made available 
to Parliament at the time of the annual budget. 

(iv) Parliamentary Committees 

This is the most effective form of parliamentary control and 
supervision over the affairs conducted by public corporations. 

70. Administrative Law (1963), p. 265. 

71. Jain and Jain (supra), p. 550. 

72. Ibid, at p. 551. 


The Parliament is a busy body and it is not possible for it to go 
into details about the working of these corporations. Parliament 
has therefore constituted the Committee on Public Underta- 
kings in 1964. The functions of the Committee are to examine 
the reports and accounts of the public undertakings, to examine 
the reports, if any, of the Comptroller and Auditor- General on 
the public corporations, 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. 

The recommendations of the Committee are advisory and 
therefore, not binding on the government. Yet, by convention, 
they are regarded as the recommendations by Parliament itself, 
and the government accepts those recommendations ; and in 
case of non-acceptance of the recommendations of the Committee, 
the ministry concerned has to give reasons therefor. 

(d) Control by public 

In the ultimate analysis, public corporations are established 
for the public and they are required to conduct their affairs in 
the public interest. It is, therefore, necessary that in addition 
to judicial, parliamentary and governmental control, these cor^ 
pDrations must take into account the public opinion also. There 
are two different means of representation of the 'consumer' or 
public interest. 73 

(i ) Consumer councils 

These are bodies established under the authority of the statute 
constituting the corporations concerned with the object of 
enabling "consumers" to ventilate their grievances, or make 
their views known to the corporations. The outstanding examples 
of consumer councils are to be found in the electricity and gas in- 
dustries. 74 The difficulty about these councils is that the members 
of the general public have neither the technical knowledge nor 
a keen interest in the affairs of certain consumer councils ; e. g. 

73. Garner: Administrative Law, (1963), pp. 266-69. 

74. Ibid, at p. 267. 


Gas or Electricity Consumer Councils. These councils may make 
recommendations to their area boards, but there have been 
very few occasions when alterations of policy decisions have 
resulted. Garner 75 states : "It is by no means clear that the 
Consumer Councils are really able to justify their continued exis- 
tence in the administrative machinery of the gas and electricity 

(if) Membership 

In other cases, Parliament has arranged for members of 
certain of the public corporations to be nominated by local 
authorities and other bodies interested in the functions of the 
particular corporation. 76 Thus, members of Hospital Manage- 
ment Committees are appointed by the Regional Hospital Boards 
after consultation with local health authorities, executive councils 
and other officials, as required by the statute. Sometimes, such 
consultation is made mandatory. Some statutes also provide 
that certain members of a council must possess particular qualifica- 


From the above discussion, it is dear that public corporations 
musf^Be autonomousln TKeir day- to-day working and there should 
Be no interference by tl^ go^rnment in it. At the sarnFTime, 
the wI3e pow^_cor^f^ shouIcT 

abusedjar arbitrarily exercised andjhey should not _ 
Jfourth branch* of the_ goyeniinent._jri^_discussioji would be 
author on Administrative Jaw J 77 

A powerful corporation, having great financial resources, 
employing many personnel and possessing monopolistic powers 
conferred by statute, should be answerable in some measure 
to the elected representatives of the nation and to the courts 
of law. In many cases this control seems tenuous and 
ineffective. On the other hand, any large-scale com- 
mercial enterprise must be allowed freedom to carry on 

75. Ibid at p. 268. 

76. Ibid. 

77. GARNER: Administrative Law, (1963), p. 270. 


research, to experiment, and even on occasion to make 
mistakes. Indeed, the justification for the constitutional 
device of the public corporation has been said to be so as to 
secure freedom from civil service (and particularly Treasury) 
controls, and from the influence of party politics. It is one 
of the modern problems of public administration, how these 
conflicting objectives can be reconciled. 


Abuse of Discretion . . 187200 

(see Administrative Discretion) 
Act of State.. 22 
Acting Under Dictation . . 130, 18385 

(see Administrative Discretion) 

Administrative Discretion. .177200 

definition of. . 1 78 

failure to exercise. . 180 87 

acting blindly. . 184 

acting mechanically. .184 

acting under dictation. . 130, 183 85 

copying down the words . . 187 
fundamental rights, infringement of, and . . 200 
grounds of judicial review of. . 178 200 

acting arbitrarily. . 198200 

acting mala fide . . 1 94 96 

collateral purpose. . 19697 

colourable exercise of power . . 1 97 98 

exceeding jurisdiction. . 188 89 

excess or abuse of. . 187 200 

improper purpose. . 196 97 

irrelevant considerations. . 189 90 

leaving out relevant considerations. . 190 91 

mixed considerations. . 191 94 

natural justice, non-observance of. .198 

unreasonableness. . 198 200 
imposing fetters on . . 182 83 
non-application of mind. . 185 87 
sub-delegation. . 181 82 (see also under that Head) 

Administrative Finality. .16770 

(see also Administrative Tribunals) 
Administrative Functions. .4446, 53 

(see also Classification of Administrative Actions) 

Administrative Law. .1 14 

definition of. .2 5 

development of. .5 7 

distinguished from Constitutional law.. 12 14 


Administrative Law (contd,} 

English and Indian distinction between. . 13 14 

historical growth of. . 5 7 

nature of. .5 

need for . . 5 7 

object of the study of. .5 

reasons for growth of. .5 7 

scope of. . 5 

Administrative Tribunals . . 150 76 

advantages of. . 152 54 

characteristics of. . 156 57 

complaints against ..174 

constitutional recognition of. . 151. 

definition of. .151 52 

distinguished from a court. . 154 56 

distinguished from an executive authority. . 156 

doctrine of res judicata and. . 173 74 

duty to record reasons by . . 1 67 

finality of decisions of. . 167 70 

Franks Committee, recommendations of . 1 74 76 

growth of. .152 54 

judicial review of decisions of. .170 72 

legal representation before. . (see Right To Counsel) 

limitations of. . 174 76 

need for.. 152 54 

principles of natural justice and. . 163 64 

reasons for decisions of . , 167 

rules of evidence and . . 164 66 

rules of procedure and. . 164 66 

working of specific 157 63 

Alternative Remedy. . (see Prerogative Remedies) 
Audi Alteram Par tern .. 13340 

(see also Natural Justice) 

Bad Faith. .9091, 19496 

(see also Administrative Discretion, Delegated Legislation" 

Bias.. 122 33 

(see also Natural Justice) 
Chagla Commission. .304 
Classification of Administrative Functions. .36 53 

administrative functions. .44 46, 53 


Classification of Administrative Functions (contd.) 

legislative functions distinguished from. .39 41 
quasi-judicial functions distinguished from. .46 52 

difficulties of. .3.7 

judicial functions. .42 

legislative functions distinguished from. .38 39 
^m'-judicial functions distinguished from. .44 

legislative, executive and judicial, distinction. .38 

legislative functions distinguished from. .38 39 

administrative functions distinguished from. .3941 
judicial functions distinguished from . . 38 39 

necessity of. .37 

need for. .37 

object of. .37 

quasi-judicial functions. .4244, 52 53 

administrative functions distinguished from. .46 52 
judicial functions distinguished from. .44 

Collateral Facls. .22324 

(see also Prerogative Remedies) 

Collateral Purpose. .19697 

(see also Administrative Discretion) 

Colourable Exercise of Power. .19798 

(see also Administive Disci etion) 

Commercial Corporations . . 286 

(see also Public Corporations) 

Committee of Ministers' Power 

on classification of administrative functions. .40, 42, 43 

on delegated legislation. .8, 57,58, 83-84 

on liability of government. .258 

on natural justice ..115 

on rule of law . . 8 

on separation of powers. .30 

Conclusions Based on Objective Facts. .193 94 

(see also Administrative Discretion) 

Conclusions Based on Subjective Satisfation . . 192 93 

(see also Administrative Discretion) 

Conditional Legislation. .7578 

(see also Delegated Legislation) 
contingent formula. .78 


Conditional Legislation (contd.) 

definition of. . 75 

delegated legislation distinguished from . . 77 78 

in post-constitution period . . 78 

in pre-constitution period. .78 

meaning of. . 75 

nature of. . 75 

permissibility of. . 76 

scope of. . 75 76 

Conseil D Etat. .19, 22, 23, 240, 242 

(see also Droit Administrative and Remedies Against Adminis- 
trative Action) 

Consultation. . 10306 

(see also Delegated Legislation) 

Contractual Liability of Government. .24956 

(see also Liability of Government) 

Corporations. .282 311 (see also Public Corporations) 
Counsel, Right of. . 14143 (see Right of Counsel) 

Cross-examination, right of. . 137 38 

(see also Natural Justice) 
Crown Privilege. .274 80 (see also Liability of Government) 

criterion for. .27475, 27880 

criticism against. .274 

dangers of. .274 

duty of court in upholding. .276 80 

(in) England.. 274 77 

(in) India,. 27780 

injury to public interest : enquiry as to. .278 

object of. .274 

public interest and. .27475, 278 

rule of evidence and. .277 

when can be claimed. .276 78 

when cannot be claimed. .276 78 

Damodar Valley Corporation. .28990 

(see also Public corporations) 
Delay . . (see Prerogative Remedies) 

Delegated Legislation. . 54 114 (see also Conditional Legislation, 
conditional legislation distinguished from. .77 78 


Delegated Legislation (contd,} 
control over. .83 114 

judicial control. .84 106 

procedural ultra vires. .97 106 

consultation.. 103 06 
publication.. 98 103 
substantive ultra vires. ,85 97 
legislative control. . 107 13 

laying on the table. . 107 1 1 
scrutiny committees. .111 13 
other controls. . 113 14 
definition of. .55 56 
functions which can be delegated . . 69 72 
functions which cannot be delegated. .72 75 
growth of. . 56 58 
Henry VIII clause.. 71, 73 
(in) India.. 61 68 
meaning of. .55 56 
need for . . 56 58 
reasons for growth of. 56 58 
sub-delegation.. 7882, 9195, 18182 (see under that 


taxing statutes ,74 75 
(in) U. S. A.. 58 61 

Delhi Declaration.. 20 

(see also Rule of Law, Doctrine of) 
Development Corporations. .287 

(see also Public Corporations) 

(see also Administrative Discretion) 

acting under.. 130, 18385 

advice distinguished from. . . 184 85 

Discretionary Power, abuse of. . 187200 

(see also Administrative Discretion) 
Discretionary Power, failure to exercise. . 180 87 

(see also Administrative Discretion) 
Doctrine of 

Crown Privilege. .274 80 (see under that Head) 

Estoppel. .267 73 (see under that head) 

Procedural Ultra Vires .97 106 (see Delegated Legislation) 

Res Judicata. . 173 74 (see Administrative Tribunals)' 


Doctrine of (contd.) 

Rule of Law. . 1627 (see under that Head) 
Separation of Powers. .28 36 (see under that Head) 
Substantive Ultra Vires. .8597 (see Delegated Legislation) 
Unjust Enrichment.. 254 56 (see Liability of Government) 
Vicarious Liability. .256 57 (see Liability of Government) 
Withholding of Documents. .27480 (see Grown Privilege) 

Donoughmore Committee (see Committee on Minisers' 

Droit Administrative 17, 2032, 422 

act of State.. 22 

Conseil d' etat. . 19, 22, 23, 240, 242 

(in) England.. 7 8 

(in) France.. 20 23 

history of. .20 

meaning of. .20 

personal liberty and. .20 23 

subjective satisfaction and. .20 23 

Duty to act judicially . .46 52 (see also Classification of Admini- 
strative Functions) 

administrative body and . 48 50 

express provision of. .48 50 

inference of. .48 50 

to.. 46 47 

Us inter paries. .47 

<7H0M-judicial body and. .48 52 

quasi-lis . . 48 

when arises.. 48 50 

Equitable Estoppel, doctrine of. .267 73 

(see also Estoppel, Doctrine of) 
Equitable Remedies .. 236 240 (see also Judicial Remedies 

Against Administrative Action, Remedies against Adminis- 
trative Action) 
Declaration. .23638 

consequential relief and. .238 

discretion to grant. .238 

distinguished from other remedies, ,237 

enforceability of. .237 

essence of. .236 37 

importance of. .236 37 

object of. .236 37 

value of. .237 

*vhen may be granted , . 238 

when may be refused . . 237 38 


Equitable Remedies (contd.} 

Injunction.. 23840 
categories of. .238 
definition of. .238 
discretion to grant . . 240 
nature of. .238 40 
types of. .238 39 
when may be granted. .23940 
when may be refused . . 239 40 

Estoppel, Doctrine of. .26773 

against the Crown. .26872 

against the Government. .268 72 

against the public authorities . . 268 72 

against the statute. .272 73 

applicability of. .26872 

definition of. ,268 69 

meaning of. .267 68 

modern view.. 269 72 

traditional view. .268 69 

principle underlying. ,267 68 

ultra vires act and. .272 73 

Evidence Act, (Indian), 1872 (see also Administrative Tribunals) 

applicability of to 

Administrative Tribunals. . 164 66 
Domestic Tribunals. . 165 

Excess of Discretion . . 187200 

(see also Administrative Discretion) 

Exclusion of Judicial Review . . 9596, 1 6772 

(see also Delegated Legislation, Administrative Tribunals) 

conclusive evidence clause . . 95 96 

order *de hors 3 the Act, arid. . 168 -69 

order 'under the Act', and. . 16869 

power of civil court and. . 168 70 

power of High Court and. . 170 72 

power of Supreme Court and. . 170 72 

right of appeal and . , 167 68 

statutory finality and . . 167 68 

Fetters on Exercise of Discretion. .9596, 16772 

(see also Administrative Discretion) 

Finality Clause, .(see also Exclusion of Judicial Review) 
Financial Corporations. .287 

(see also Public Corporations) * 


Franks Commit tee .. 163 64, 17476 

objects of appointment of. . 174 75 
recommendations of. . 1 75 76 
report of. . 175 

Governmental Liability. .24781 

(see also Liability of Government) 

Habeas Corpus, writ of. .211 14 (see also Prerogative Reme- 

Hearing, principles of. . 136 40 (see Natural Justice) 
Henry VHI Clause. .7173 (see Delegated Legislation) 
Hershell Doctrine. .95- 96 (see also Delegated Lagislation) 
Impermissible Delegation. .72-75 

(see Delegated Legislation) 
Improper Purpose . . 196 97 

(see also Administrative Discretion) 

Income Tax Appellate Tribunal. .160 62 

(see also Administrative Tribunals) 

Industrial Tribunal. .158 60 

(see also Administrative Tribunals) 

Injunction. .23840 

(see also Equitable Remedies) 
Irrelevant Considerations . . 18990 

(see also Administrative Discretion) 

Judicial Function. .42 

(see also Classification of Administrative Functions) 

Judicial Remedies against Administrative Action .. 203 46, 
24964 (see also Remedies Against Administrative Action) 

Common law Remedies . . 249 64 

(see also Liability of Government) 
Constitutional Remedies. . 20329, 23236 
(see also Prerogative Remedies) 

Through High Court's Power of Superintendence 
duty of High Court. .23436 
extent of power of. .235 36 


Judicial Remedies against Administrative Action (conld.} 

grounds. .235 

nature of, .235 

power of. .235 

scope of. .235 36 
^hrough Special leave to Appeal to Supreme Court. . 

duty of Supreme Court. .234 

power of Supreme Court .232,234 

when special leave may be granted. .233 

when special leave may be refused. .232 33 
Through Writs. ,20329. . (see Prerogative Remedies and 


Equitable Remedies. .236 40 (see under that Head) 

Statutory Remedies. .230 36 (see under that Head) 

Judicial Review of Administrative Action. . 178200 

(see also Administrative Discretion) 
Jurisdictional Fact . . 22324 ^ 

(see also Prerogative Remedies) 
King Can do no Wrong .9, 19, 24, 247, 248, 238 

(see also Liability of Government) 

Laches. . (see Prerogative Remedies) 

Law Commission Reports . . 264, 267 

Leaving Out Relevant Considerations. .190-91 

(see also Administrative Discretion) 

Legal Representation, Right to. .14143 

(see Right to Counsel) 
Legislative Function .3839 

(see also Classification of Administrative Actions) 
Liability of Government. .24781 

(see also Crown Privilege, Estoppel, Doctrine of) 

Contractual liability. .24956 

Constitutional provisions. .249 

invalid contract effect. .253 54 

manner of execution of a contract. .249 53 

non-compliance with the requirements effect. .253 54 

oral contract. .249 50 

<7M0M-contract-effect. .254 56 

ratification of an invalid contract. .253 54 

requirements of a valid contract. .249 53 


Liability of Government (contd,) 

unjust enrichment, doctrine of. .254 56 

valid contract effect. .254 
Crown privilege. . 274-80 (see under that Head) 
Estoppel against government, .267 73 (see Estoppel. Doctrine 


Execution of decrees against government. .281 
Period of limitation against government. .281 
Privileges of government. .274-81 
Statute, whether a State is bound by. .265 67 

English law.. 265 

Indian law. .265 67 
Suits against government. .280 
Tortious liability . .256 64 

Constitutional provisions. .258 

(in) England.. 257 58 

(in) India.. 258 4 

King can do no wrong. .248, 258 

meaning of. .256 

personal liability. .257 

sovereign and non-sovereign functions. .259 64 
difficulties in deciding. .263 64 
Law Commission on . . 264 
Test.. 263 64 

vicarious liability, doctrine of. .25657 
Withholding of documents by government. .274 80 (see 

Crown Privilege) 

Life Insurance Corporation of India . . 290 91 

(see also Public Corporations) 

Lis..46 47 (ft* also Classification of Administrative Functions, 
Duty to Act Judicially) 

Lis Inter Partes. .47 (Duty to Act Judicially) 
Locus Standi. . (see Prerogative Remedies) 
Lokayukta. .243 (see also Ombudsman) 
Lokpal. .243 (see also Ombudsman) 
Magna Carta. . 15, 177 
Malafides. 90- 91,194 96 

(ft* also Administrative Discretion, Delegated Legislation) 
Mandamus, Writ of. .21418 (see also Prerogative Remedies) 

'audialterampartem.AlQ, 120, 122, 132, 141 


Maxims (contd.) 

damnum sine injuria . . 242 

delegates on potest delegare . . 59 

ignorantia juris non excusat . . 98 

injuria sine damno . . 242 

Judges, like Caeser's wife should be above suspicion. . 122 

Justice should not only be done, but manifestly and 

undoubtedly be seen to be done. . 122 
King can do no wrong. .9, 19, 24, 247, 248, 258 
nemo debet esse judex in propria causa. .122 
qui facit per alium facit per se . . 257 
respondeat superior. .257 

Roy n'est he par ascun statue si il ne soil expressement nosme ,265 
ubijus ibi remedium. .201, 203, 242 

Ministers' Powers, Committee on., (see Committee on 
Ministers 5 Powers) 

Mixed Considerations. .19194 

(see also Administrative Discretion) 

Montesquieu's Doctrine of Separation of Powers. .28 36 

(see Separation of Powers, Doctrine of) 

Natural Justice, Principles of. .115 49 

audi alterant par (em. .133 40 

cross-examination and 137 38 

delegated hearing and. .93 95, 136 

hearing, and . . 135 40 

'hitting below the belt\ . 141 

law of god and. . 134 

meaning of. . 133 

notice.. 133 35 

one who decides must hear. .93 95, 136 

personal hearing and . . (see under that Head) 

right to counsel and. .141 -43 (see under that Head) 

speaking orders and 143 49 (see under that Head) 

violation of. .effect. . 139 
bias.. 12233 

application of the doctrine of. . 123 

definition of. .122 23 

principles of. . 125 

real likelihood of. . 13033 

test of. .130 33 

types of. .123 30 

as to subject-matter. . 127 30 


Natural Justice, Principles of (contd ) 

pecuniary bias. . 123 25 

personal bias. . 125 27 
general principles. . 116 22 

administrative orders, applicability of. . 1 19 21 

binding nature of.. 115, 11819 

breach of, effect. . 13339 

definition, of .117 

extent of. ,13033 

historical background. . 1 17 18 

law of God and. .134 

legal representation and. . 141 43 (see Right to Counsel) 

limits of, . 13033, 13641 

oral hearing. . 140 41 (see Personal Hearing) 

principles of. .121 22 

reasons for decisions. . 143 ^9(see Speaking Orders) 

scope of 13033 

statutory provision, absence of. . 118 19 

Nemo Debet Esse Judex in Propria Causa. .12233 
Non-Production of Documents by Government. .27480 

(see also Grown Privilege) 
Non-Sovereign Functions. .25964 

(see also Liability of Government) 
Non Speaking Orders .. 143 49 

(see also Speaking Orders) 
Notice. .13335 (see also Natural Justice) 
Oil and Natural Gas Commission. .28889 

(see also Public Corporations) 

Ombudsman .242 44 (see also Remedies Against Adminis- 
trative Action) 

criticism against . . 242 44 
duties of. .243 
functions of. .243 
maladministration and . . 243 
meaning of. .242 43 
powers of. . 243 

One Who Decides Must Hear ,9395, 136 

(see also Natural Justice, Personal Hearing) 
Oral Contract. .24951 

(see also Liability of Government) 


Oral Hearing. .14041 (see Personal Hearing) 
Parliamentary Remedies. .24042 

(see also Remedies Against Administrative Action) 

Pecuniary Bias. .12325 (see also Natural Justice) 
Permissible Delegation. .6972 (w* Delegated Legislation) 
Personal Bias. .12527 (see also Natural Justice) 
Personal Hearing. , 140 41 (see also Natural Justice) 

(in) America. . 140 

(in) England.. 140 

hitting below the belt' . . 141 

(in) India.. 140 41 

natural justice and. . 140 41 

statutory provision regarding. . 140 

when may be claimed. . 141 

when may not be claimed. . 140 

whether a part of natural justice. . 140 41 

Powers, Separation of. .28 35 (see Separation of Powers, 

Doctrine of) 
Prerogative remedies . . 203 29 (see also Remedies Against 

Administrative Action) 
Certiorari..22\ 27 

absence of jurisdiction. .222 24 

admitting inadmissible evidence. .224 

against whom lies . . 22 1 

alternative remedy. .225 26 

collateral fact . . 22324 

conditions of. . 222 

error apparent on the face of the record. .224 25 

error of fact.. 224 25 

error of jurisdiction. .224 25 

error of law. .224 25 

excess of jurisdiction. .222 24 

fundamental rights violation of. .22526 

grounds for.. 222 27 

irrelevant consideration . . 224 

jurisdictional fact. .22324 

leaving out relevant considerations. .224 

meaning of. .221 

natural justice violation of. .225 26 

nature of. .221 

object of. .222 


Prerogative remedies (contd.) 

prohibition, writ of, distinguished from. .22627 

scope of. .221 

when may be granted. .222 25 

when may be refused. ,222 25 
habeas corpus . .211 14 

conditions for. .212 

emergency, proclamation of effect. .25 27, "214 

history of. .212 

infructuous, when becomes. .213 

meaning of. .21 1 

object of 21112 

procedure of. .213 

res judicata a nd 2 13 14 

rule nisi and . .213 

scope of. . 21 1 

successive applications for. .213 14 

value of. .211 

when may be granted . 213 

when may be refused. .213 

who may apply. .212 
mandamus. .214 18 

abuse of power and, ,216 

against whom, .does not lie, .217 18 

alternative remedy and. .218 

conditions for. .215 17 

demand and refusal. .216 

excess of power and ..216 

existence of right and. .215 

meaning of. .214 

nature of. .214 

non-application of mind and. .216 

scope of. .214 

statutory duty and. .214 16 

when may be issued. .215 17 

when may be refused. .215 17 

who may apply for. .217 
prohibition.. 2 1821 

absence of jurisdiction and. .219 21 

alternative remedy and. .221 

certiorari, writ of, distinguished from. .226 27 

exceeding jurisdiction and . .219 

fundamental rights, violation of and. .220 

grounds for.. 21 920 

limits of. .200 21 

natural justice, violation of. .220 

nature of. .218 19 


Prerogative remedies (contd.) 

object of. .218 19 
scope of. .218 19 
when may be issued. .219 -20 
when may be refused. .220 21 
quo warranto. .227 29 

against whom, lies. .227 28 
alternative remedy and. .229 
conditions for.. 227 28 
delay and writ of. .229 
locus standi for. .22829 
meaning of. .227 
nature of. .227 
public office and. .227 
scope of. .227 

when may be granted. .227 28 
when may be refused . . 228 29 
writs, in general. .203 211 
against whom lies. .205 
alternative remedy. .205 09 
Art. 32 and.. 206 
Art. 226 and.. 206-09 
after 1976. .20809 
prior to 1976.. 207 08 
constitutional provisions. .203 04 
delay.. 209 11 

absence of explanation for, effect . . 209 
duty of court in case of. ,211 
limitation, law of, and. .209 11 
measure of. .210 
rights of third party and . . 209 
stale claims. .20911 
discretion in issuing. .206 09 
Art. 32.. 206 
Art. 226.. 206 09 

fundamental rights, violation of. . 206 
historical background .. 203 

jurisdiction of High Court to issue. .205,207 09 
jurisdiction of the Supreme Court to issue. ,206 
locus standi.. 204 05 
nature of. .204-05 
who may apply. .204 05 

Procedural Ultra Vires. .97106 

(see also Delegated Legislation) 
Prohibition, Writ of. .21821 

(ste also Prerogative Remedies) 


Public Corporations. .282308 

appointment and removal of members . . 303 

characteristics . . 285 

classification of. .28587 

Constitutional provisions regarding. .283 84 

control over. .292307 

governmental . . 303 04 

judicial.. 300 02 

parliamentary. .304 06 

public, by. .30607 
Crown privilege and . . 295 96 
definition of.. 284 85 
directives to. .30304 
duties of. .294 
employees of 296 99 
fundamental rights and. .293 94 
government department, distinguished from. .285 
liability of. .294 
need for.. 283 84 
object of. .283 84 
servants of. .296 99 
types of. .285 86 
working of certain . . 287 93 
writ of mandamus against . . 300 02 

Publication of Delegated Legislation. .98103 

(see also Delegated Legislation) 

Ctt*m- Meaning of. .42 

Quasi-Jludicial Bodies. . 15076 

(see also Administrative Tribunals) 

Qwatt-Judicial Function . . 42 44- 

(see also Classification of Administrative Functions) 

Quasi- Lis. .48 

(see also Duty to Act Judicially) 

Quo-warranto, Writ of. .22729 

(see also Prerogative Remedies) 

Railways Rates Tribunal. .162 63 

(see also Administrative Tribunals) 

Reasons for Decisions. .14349 (see Speaking Orders) 

Rehabilitation Finance Corporation . . 29293 

(see also Public Corporations) 
Remedies Against Administrative Action . . 203 46, 24964 

Common law Remedies . . 24964 (see Liability of Government) 
Conseil d 9 Etat. .242 (see under that Head) 


Remedies against Administrative Action (contd.) 

Constitutional Remedies.. 20329, 232 36 (see under that 


Equitable Remedies. .238 40 (see under that Head) 
Judicial Remedies. .20340, 249 64 (see under that Head) 
Parliamentary Remedies . . 240 42 (see under that Head) 
Prerogative Remedies. .203 29 (see under that Head) 
Ombudsman . . 242 44 (see under that Head) 
Self-help. .244 46 (see under that Head) 
Statutory Remedies. .230 36 (see under that Head) 

Reserve Bank of India. .28788 

(see also Public Corporations) 

Res Judicata, Doctrine of. . 173 74 

(see also Administrative Tribunals) 

Right to Counsel. .141- 43 (see also Natural Justice) 

(in) England.. 141 42 

(in) India.. 14243 

natural justice and. . 14142 

statutory provision, absence of regarding, effect. . 141 42 

when may be claimed. . 142 43 

when may not be claimed. . 142 43 

Road Transport Corporations . . 29192 

(see also Public Corporations) 

Rule of law, Doctrine of. . 1627 

application of. . 17 18 

comments on. . 18 20 

concept of. . 16 20 

criticism against. . 18 20 

Delhi Declaration and . . 20 

Dicey on. . 16 17 

droit administratif and. .2023 

habeas corpus case and . . 25 27 

history of. . 16 

meaning of. . 16 18 

modern concept of. . 23 

personal liberty and.. 25 

under the Constitution of India. .23 27 

Self-help. .244 46 (see also Remedies Against Administrative 

illegal order and . . 244 45 
limits of.. 245 46 


Self- help (contd.) 

'Purported'' exercise of power and. .244 
ultra vires order and . . 244 45 

eparation of Powers, Doctrine of. .28 36 

comments on . . 30 32 

criticism against . . 30 32 

defects of. .30 32 

effect of. .30 

historical background of. .28 

(in) England . . 33 

(in) India. .3335 

limitations of. .3032 

(in) U. S. A. .32 33, 5859 

meaning of. .28 

Montesquieu on. .29 

under the Constitution of India. .29 

value of. .32 

Social Service Corporations . . 287 

(see also Public Corporations) 

Sovereign Functions 259 64 

(see also Liability of Government) 

Speaking Orders. .143 49 (see also Natural Justice) 

administrative tribunals and. . 143 44 

appellate authority and. . 147 

audi alter am par tern and.. 145 

confidential proceedings and. . 14T 

English law on. . 143, H8 

failure to make, effect. . 144 45 * j - 

Indian law on. . 149 *\ ^ f t 

judicial scrutiny of. . 148 49 

meaning of. . 143 

natural justice and . . 139, 145 

order of affirmation and. . 147 

order of reversal and. . 147 

order subject to appeal or revision and. . 144 46 

statutory provision regarding. . 146 

Statutory Corporations . . 282 308 

(see Public Corporations) 

Statutory Finality . . 16772 (see Administrative Tribunals) 


Statutory Remedies. .230 36 (see also Remedies Against 

Administrative Action) 
appeals to courts. .230 31 
appeals to tribunals .231 

High Courtis power of superintendence. .234 36 
ordinary civil suit. .230 
special leave to appeal to Supreme Court. .232 34 

Sub-Delegation .7882, 9195, 181-82 

(see also Delegated Legislation) 
of administrative power. . 181 82 

assistance distinguished from. .181 

exercise of discretion and . . 181 
of judicial power.. 91 95 

(in) America. .9394 

(in) England. 9394 

(in) India.. 94 95 

permissibility of. 94 95 

practical difficulties of. .94 93 
of legislative power. .78 82 

criticism against. .79 

definition of. .78 

delegatus non potest delegare . . 79 

limitation on. .80 81 

permissibility of. .8081 

Subjective Satisfaction. .19293 

(see also Administrative Discretion) 
Subordinate Legislation .. 54 114 

(*ee Delegated Legislation) 

Substantive Ultra Vires . .M~ 97 
(see Delegated Legislation) 

Suits Against Government .28081 

(see also Grown Privilege, Estoppel, Doctrine of, Liability of 

Tortious Liability of Government . .25664 

(see Liability of Government) 
Tribunals. .15076 (see Administrative Tribunals) 

Ultra Vires, Doctrine of. .85106 
(see Delegated Legislation) 

Unjust Enrichment, Doctrine of. .254 56 

(see Liability of Government) 


Unreasonableness .. 88 90, 198 200 (see also Administrative 
Discretion, Delegated Legislation) 

Vicarious Liability of Government. .25657 

(see Liability of Government) 

Working of Certain Corporations. .28793 

(see Public Corporations) 

Working of Certain Tribunals . . 157-63 

(see Administrative Tribunals) 
Writ. . (see also Prerogative Remedies) in general. .203 1 1 

of certiorari. .22127 
of habeas corpus ..211 14 
of mandamus. .214 18 
of prohibition.. 2 18 21 
of quo warranto. .227 29 

Yaffe Doctrine. .9596 

(see Delegated Legislation)