ADMINISTRATIVE LAW

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CHAPTER 1

INTRODUCTION

Administrative law is the law relating to the public administration. Administrative law

deals with the powers of the public authorities and their liabilities.

Administrative law is a heuristic science. It is a branch of public law which is essentially

anti-authoritarian.

Relation between Administrative Law and Constitutional Law

Constitutional law and administrative law are parts of the public law. While constitutional

law is anti-majoritarian, administrative law is anti-authoritarian.

Holland attempted to differentiate these two branches of public law. According to him

constitutional law describes the various organs of the government at rest ie. static aspect of the

government, while administrative law describes dynamic aspects of government. According to

this view, the structure of the government comes within the purview of the constitutional law but

their functions come within the scope of administrative law. Maitland, however does not agree

with this classification.

Scope of Administrative Law

Administrative law deals with the structure, powers and functions of the organs of

administration ,the limits their powers, the methods and procedures followed by them in exercising

their powers and functions ,the methods by which their powers are controlled , including the legal

remedies available to a person against them when his rights are infringed.

(i) It deals with the composition and powers (quasi-legislative, quasi-judicial, discretionary and

ministerial) of various organs of the administration.

(ii) It refers to the limits on the powers of the administrative authorities.

(iii) It deals with the various controls over the administrative authorities.

(iv) It deals with the procedure used in exercise of their powers.

(v) It deals with various remedies available to an aggrieved person for an unlawful administrative

action.

(vi) It deals with government liability for the wrongs committed by their servants.

Administrative law ensures exercise of power according to law. It is an essential attribute of an

open and accountable government.

Reason for the Growth of Administrative Law

The primary function of the administrative law is to keep governmental powers within the limits

of law and to protect private rights and individual intrests.

1. The first and the foremost reason for the growth of administrative law is the change in

the government’s philosophy from ‘laissez faire’ to the ‘social welfare state’ which resulted in an

enormous increase of government’s functions.

I.P. Massey, Administrative Law, EBC Publication (2020), p.1

Id., p.15

Halsbury’s Law of India, Administrative Law, Lexis Nexis (2006), p.005.001

S.P Sathe, Administrative Law, N.M Tripathi Private Ltd (1991), p.23

C.K Takwani, Lectures on Administrative Law, EBC Publication (2016), p.7

Laissez faire means individualism, self help, minimum government control and maximum

free enterprise. According to this doctrine the management of social and economic life of the

people was never regarded as government’s responsibility. Social welfare state means a state

which promotes socio-economic welfare of the people.

Source of Administrative Law

1. Precedents: In India, the existence and the development of administrative law mainly depend

upon the judicial pronouncements on the various issues concerning the administrative law.

2. Constitution: Next to the precedent, the Constitution emerges as a second important source.

The Constitution of India deals with the structure and powers of the executive and various

administrative bodies. It also deals with various kinds of remedies available to an aggrieved citizen

against the arbitrary exercise of governmental function. This part of the constitution is the main

source for development of one area to administrative law namely judicial review of administrative

actions.

3. Statute: In India there is no special statute to mention as a big source for the development of

administrative law.

4. Reports:In addition to the above said main source some reports of the committees and

commissions are also playing a major role as a source to the development of the administrative

law. Droit Administratiff

French administrative law is known as Droit Administratiff. The origin of droit

administratiff may be traced to the days of Napoleon.

In France Droit Administratiff can be defined as a body of public law which determines the

organisation and the duties of public administration, and regulates the relations of the

administration with citizens of the state.

Though the system of droit administratif is very old, it was regularly put into practice by

Napolean in the 18th century.

Conseil d’Etat: The French administrative court is called as conseil d’Etat.

Disputes as to jurisdiction between ordinary courts and administrative courts are

determined by a separate court called Tribunal des Conflicts. A case concerning an alleged conflict

of jurisdiction can be raised only by an administrative court of and not by the ordinary court.

THEORY OF SEPARATION OF POWERS AND ADMINISTRATIVE LAW

French jurist Montesquieu was the founder of this theory. He formulated this theory in his

famous book. “The Spirit of Laws” Published in 1748. According to this traditional constitutional

theory there are three different types of power in every government. They are (i) Legislative

power, (ii) Executive power and (iii) Judicial power. According to him this theory means:

(a) The government must be divided into three different organs namely legislative, executive and

judiciary.

(b) Legislative, executive and judicial functions should be distributed and placed among distinct or

separate body of persons.

cannot exercise the functions of the legislature or judiciary. Judiciary cannot exercise the functions

I.P. Massey, Administrative Law, EBC Publication (2020), p.17

C.K Takwani, op. cit., p.25

of the executive or legislature. Legislature cannot exercise the functions of the judiciary or the

executive).

(d) One organ of the government should not interfere, control or review the functions of the other

organs of the government.

The main purpose of distributing the power between different organs is to avoid the

concentration of power in a single person or body of persons and another object is to avoid or at

least minimize the arbitrariness in the government functions and thereby human liberty can be

protected.

American Position : Under the present constitutional set up, the U.S. Constitution is the standing

example for the doctrine of separation of powers.

Position in England: In England the separation of powers theory is not followed.

Position in France: French jurists claim that their legal system has accepted the theory of

separation of powers in its strict and true meaning.

Position in India: In India though the framers of our constitution have taken advantage of this

doctrine there is no express mention about the adoption of this doctrine in the Constitution, except

Art. 50, which speaks about separation of judiciary from the executive.

Under the Indian constitution the government’s powers are divided into legislative,

executive and judicial. Legislative powers are vested with the Parliament, the executive powers

are vested with the President and the judicial powers are vested with the judiciary.

RULE OF LAW

Rule of law, propounded by A. V. Dicey is simply a description of the state of a society.

Rule of law expounded by Dicey was never fully operative in England even in his days and has

never been so since then.

It is a modern name for natural law. It is derived from the French phrase

la principle de legalite which means a government based on principles of law and not of men.

The term rule of law was first coined by Chief Justice of England Sir. Edward Coke. It

was introduced to exclude the arbitrary authority of the government and to give legal safeguards

for the protection of individuals and their rights.

Prof. A.V. Dicey a well known authority on English Constitutional law had developed this

concept into a full theory and published it in 1885 in his famous book Law of the Constitution. He

regarded rule of law as the bedrock of the British legal system. According to Dicey rule of law

contains three principles:

(i) Law is supreme and it is opposed to the influence of arbitrary power, prerogative, or even wide

discretionary authority on the part of the government.

(ii) Equality before law or the equal subjection of all classes (people) to the ordinary law of the land

administered by the ordinary law courts.

(iii) The rights of the people must flow from the customs and traditions of the people recognized by

the courts.

While explaining the first principle he claimed that the English people were ruled by law

and law alone. He denied that there was any discretionary power in the hands of administration in

England. He even said that wherever there is discretion, there is room for arbitrariness which

may lead to insecurity to the freedom of the citizens.

Explaining the second principle he said that in England every person was subject to one

and the same body of law. He emphasized that equality before law means that every person

The Indian Law Institute, Cases and materials on administrative law in India (1966), p.55

whether President or beggar in the street, irrespective of status, office, or rank is liable to the

same consequence for any wrong. No person can raise position, status, office or rank as defence

in any criminal prosecution or civil litigation.

The third principle merely explains one aspect of the British constitutional system where

common law is the source of fundamental freedoms of the people. Dicey feared that if the source

of fundamental rights of the people is any document, the right can be abrogated at any time

amending the constitution. The modern concept of the Rule of law was developed by the

International Commission of Jurists, popularly known as Delhi Declaration, 1959.

The concept of rule of law is useful to an administrative lawyer in so far as he can avail it

to spell out certain values or ideals which the administrative law of a democratic country prevails.

“Rule of law’ is the supreme manifestation of human civilization and culture and is a new

“lingua franca” of global moral thought. It is an eternal value of constitutionalism and an inherent

attribute of democracy and good governance.

With all the limitations, the concept of rule of law has exercised a potent influence on the

thinking and ideas pertaining to administrative law.

CHAPTER 2

DELEGATED LEGISLATION

Delegated legislation is otherwise called as sub-ordinate legislation. Modern writers refer

it as administrative legislation.

Meaning of Delegated Legislation: Delegation means conferring one’s power to another person.

Delegated legislation means the delegation of the law making power by the legislature to the

executive.

Delegated legislation does not fall beyond the scope of judicial review and in almost all

democratic countries, it is accepted that Courts can decide the validity of delegated legislation.

Reasons for the growth of delegated legislation: 1.Pressure upon Parliamentary Time:

The legislature has no time to discuss all these matters in detail and to give the quantity

and quality of law which is required for the effective functioning of the modern state. Hence the

legislature was compelled to delegate part of its law making function to the executive.

2. Technicality and Complexity of the Subject Matter: Sometimes, the subject-matter on which

legislation is required is so technical in nature that it may not be possible for the legislators to

legislate in detail without the assistance of experts in that particular subject matter.

3. Flexibility:

It is difficult to make changes in the statutes. But delegated legislation is very flexible.

4.Emergency Situations:

The Indian Law Institute, Cases and materials on Administrative law in India (1966), p.55

I.P. Massey, Administrative Law, EBC Publication (2020), p.23

The Indian Law Institute, op. cit., p.56

C.K Takwani, op. cit., p.119

In emergency situations the government has to take a variety of quick decisions. It cannot be

possible for the legislature to provide all provisions in detail to meet these unforeseeable

contingencies. To tackle such situations delegated legislation is the only convenient and possible

way.

5. Secrecy: In some situations it is necessary that the law should not be made public till it comes

into operation (regulations on economic matters). Secrecy can be achieved only through delegated

legislation hence it is preferred in such areas.

Advantages of delegated legislation

1. It reduces the workload of the legislature and thereby indirectly help the legislature to concentrate

more on policy matters.

2. It brings out flexible legislations (rules, orders, bye laws, regulation and schemes are flexible in

nature when compared to an Act)

3. Delegated legislation is the product of intimate contact with the problems by its makers hence,

it is less prone to errors of procedure.

4. Legislations on technical matters which requires technical knowledge and skill may be effectively

done through delegated legislation.

5. The power of delegated legislation helps the government in tackling unforeseeable emergency

situations.

Disadvantages

1. The collective wisdom of the people’s representative is absent in delegated legislation.

2. The public opinion is absent in the delegated legislation. Which is drafted in government

clambers by some anonymous civil servant and mostly promulgated all of a sudden without much

publicity or notice.

3. In many cases, delegated legislation cannot be known in advance until it is notified.

Different forms of delegated legislation

There are six notably important forms by which the legislature delegates the law making

power to the executive. They are as follows.

1. Central Act may delegate law making power to the central government (Eg.) (i) S.3 of the

Defence of India Act, 1962; (ii) S.3 of the All India Services Act, 1951.

2. Central Act may delegate law making power to the state government. (Eg.) (i) S. 8 of the Opium

Act, 1878).

3. Central Act may delegate law making power to both central and state governments.

4. Central Act may delegate law making power to statutory bodies.

5. State Act may delegate legislative power to state government.

6. State Act may delegate legislative power to statutory bodies.

Sub-delegation

Delegated legislation means the delegation of the law making power by the legislature to

the executive. After getting such power from the legislature if the executive further delegates

those powers to any sub-ordinate authority or agency it is called sub-delegation.

Conditional legislation (or) Contingent legislation

During the colonial days of India, it was considered that Indian legislature was a

subordinate to the British Parliament and had no power to delegate legislative power to the

executive. This total prohibition of delegation created great hardships both to the legislature as

well as the executive in the administration of the country. As a compromise between total

prohibition of delegation and liberal delegation, the concept of conditional legislation was

introduced.

The doctrine of conditional legislation enunciated in the Burah case has been subsequently

used in several other cases.

Conditional legislation is very much useful in the area of socio-economic and welfare

legislation. Eg. the legislature may evolve a scheme the employee’s isurance.

Judicial control over delegated legislation

Among the various control mechanisms, judicial control stands first. The history of judicial

control over delegated legislation can be traced back to as early as 1877. In Queen v. Burah the

Calcutta High Court declared a delegated legislation as invalid.

GROUNDS FOR REVIEW:-

Following are the main ground on which the court can review (control) the delegated legislation.

1. The parent Act is ultra vires the Constitution.

2. Delegated legislation is ultra vires the Constitution.

3. Delegated legislation is ultra vires the parent Act.

4. Delegated legislation is ultra vires general law.

5. Unreasonableness.

6. Male fide.

7. Excessive delegation

1.Parent Act ultravires the Constitution

Ultra vires means beyond the power. The delegation of law making power to the executive

is valid only if the parent Act is inter vires the Constitution. If the parent Act violates either the

express or implied limits of the Constitution, such Act will be held as void and unconstitutional.

For that reason the delegates legislation made under the Act will also be held as void.

The Doctrine of ultra vires means that the executive must act according to the law. Usually

before deciding whether an act is ultra vires, the scope of the power of an authority has to be

determined.

In A.K. Kraipak v. Union of India

,the case involved the appointment of a selection board

to recommend candidates for promotion to higher positions. The board's recommendation was

challenged on the grounds that the appointment was not made as per the provisions of the parent

Act.The Supreme Court held that the appointment was ultra vires as it did not follow the statutory

procedure laid down by the parent Act, emphasizing that any action taken by an authority beyond

its statutory powers is invalid.

In Rashtriya Mill Mazdoor Sangh v. Union of India

, the case concerned the central

government's decision regarding the payment of wages under a specific Act, which was challenged

on the grounds that it was inconsistent with the provisions of the parent Act. The Supreme Court

ruled that if an administrative action or order is beyond the scope of the powers conferred by the

parent Act, it is deemed ultra vires and thus invalid.

M.C Jain Kagzi, The Administrative Law, Universal Publications (2016), p.361

S.P Sathe, Administrative Law, N.M Tripathi Private Ltd (1991), p.297

AIR 1970 SC 150

AIR 1984 SC 1432

In State of Kerala v. M. Bhaskara

,this case involved the Kerala government's decision

to issue certain orders affecting the appointment and promotion of officials, which were claimed

to be inconsistent with the parent Act.The Supreme Court held that administrative actions or orders

which do not adhere to the provisions or limitations prescribed by the parent Act are ultra vires

and cannot be upheld.

In B. P. Singhal v. Union of India

,the case dealt with the removal of a governor by the

President, which was challenged on the grounds of being ultra vires as it did not comply with the

provisions of the Constitution relating to the removal of a governor. The Supreme Court held that

the action was ultra vires the Constitution, reinforcing that any action taken by a public authority

must conform to the powers and limitations set out in the relevant statutes or Constitution.

2.Delegated legislation ultra vires the constitution

Sometimes the parent Act may be well within the limits of the constitution, still the

delegated legislation made under it may be challenged as ultra vires the Constitution, if it violates

the provisions of the Constitution.

In K.C. Gajapati Narayan Deo v. State of Orissa

, according to the facts of the case the

Orissa government issued regulations under a statute that were challenged for exceeding the

powers granted by the Constitution and the parent Act. The Supreme Court held that the regulations

were ultra vires the Constitution as they went beyond the powers delegated by the parent Act,

violating the constitutional limits on delegated legislation.

In Re: Delhi Laws Act

,the constitutionality of the Delhi Laws Act, which empowered the

Lieutenant Governor to legislate on various matters, was challenged. It was argued that the Act's

delegation of legislative power violated constitutional principles. The Supreme Court found that

the Act was unconstitutional as it delegated legislative powers in a manner that was ultra vires the

Constitution, thereby invalidating the delegation of powers.

In Vineet Narain v. Union of India

, the case involved the delegation of powers to enforce

anti-corruption laws, challenged as exceeding constitutional limits on delegated legislation. The

Supreme Court held that the delegation was ultra vires the Constitution as it lacked adequate

guidelines and safeguards, thus violating constitutional principles regarding delegation of powers.

In State of Tamil Nadu v. M. A. B. Industries

, according to the facts of the case the Tamil

Nadu's legislation on tax rates was challenged for exceeding the authority granted by the

Constitution. The Supreme Court held that the delegated legislation was ultra vires the Constitution

as it overstepped the limits of authority granted by the parent Act and violated constitutional

provisions.

3.Delegated legislation is ultra vires the parent act

The validity of delegated legislation can be questioned on the ground that it is ultra vires

the parent Act. But the question is when a delegated legislation can said to the ultra vires the

AIR 1981 SC 255

(2010) 6 SCC 331

AIR 1953 SC 375

AIR 1951 SC 332

(1997) 1 SCC 226

(1999) 6 SCC 549

parent Act. It is difficult to give an exhaustive list of cases where delegated legislation can be held

to be ultra vires the parent Act. In the following cases delegated legislation can be said to be ultra

vires the parent Act.

4.Delegated legislation is ultra vires any General Law

The validity of the delegated legislation can be challenged on the ground that it is ultra

vires any general law. A delegated legislation is said to be ultra vires the general law in the

following cases. (i) When it makes a particular act lawful which the general law treats unlawful.

(ii) When it makes an act unlawful the general law treats lawful.

5.Unreasonableness

Generally, a statute cannot be challenged on the ground of unreasonableness. Similarly,

delegated legislation also cannot be challenged on the ground of unreasonableness because it is

also a part of the statute, but in exceptional cases a statute as well a delegated legislation can be

challenged on the ground of unreasonableness.

Many statutes leave discretionary powers to the reasonable belief of the authorities. The

crucial question in such cases is how far reasonableness in this context can be made amenable to

an objective judicial scrutiny.

In T. K. Rangarajan v. Government of Tamil Nadu

,the government’s decision to dismiss

employees on grounds of their involvement in a strike was challenged as unreasonable. The

Supreme Court found the dismissal to be unreasonable and arbitrary, as it did not align with

principles of fairness and proportionality, thus invalidating the action.

In Indian Express Newspapers v. Union of India

,the government's decision to impose

restrictions on newspaper publications was challenged as unreasonable. The Supreme Court held

the restrictions to be unreasonable as they were disproportionate and did not meet the standards

of fairness and rationality required in administrative decisions.

6.Malafide

Malafide means bad faith, or ulterior motive. Delegated legislation can be challenged on

the ground of malafide if it has no relation to the purpose for which the law-making power was

delegated. It is extremely difficult to prove malafide before the court. Hence the ground of

malafide for challenging a delegated legislation is resorted only in rare cases where strong proof

of bad faith is available.

In K. C. Agarwal v. Union of India

,the case involved the transfer of a government

employee allegedly done to harass and disadvantage him. The Supreme Court held that the transfer

was mala fide, as it was motivated by personal vendetta rather than administrative necessity, and

thus it was declared invalid.

In P. S. Sadasivaswamy v. State of Tamil Nadu

, the appointment of a candidate to a

government position was challenged on grounds of mala fide, alleging that the appointment was

made to favor a particular individual. The Supreme Court ruled that the appointment was mala

fide, as it was influenced by extraneous considerations, rendering it void.

N.K Jayakumar, Administrative Law, The Academy of Legal Publication, p.39

(2003) 6 SCC 581

(1985) 1 SCC 641

(1988) 3 SCC 156

(1974) 1 SCC 410

In S. R. Bommai v. Union of India

, the imposition of President’s Rule in Karnataka was challenged as being motivated by mala

fide intentions to destabilize the state government. The Supreme Court found the imposition to be

mala fide, as it was motivated by political considerations rather than constitutional propriety, and

thus was invalidated.

7.Excessive Delegation

In India, only in few cases delegation of law-making power to the executive is struck down

by the courts on the ground of excessive delegation.

In Air India v. Nargesh Mirza

,the Court held that delegation is excessive, if it is

uncontrolled and unguided.

In Indira Nehru Gandhi v. Raj Narain

,the constitutionality of the Electoral Laws

(Amendment) Act, which granted extensive powers to the Election Commission, was challenged

on grounds of excessive delegation of legislative powers. The Supreme Court upheld the Act,

ruling that while some delegation is permissible, the powers granted were not excessive but

necessary for effective implementation of electoral laws.

In State of Punjab v. S. S. Chatha

, this case involved the delegation of powers to the

State Government under the Punjab Agricultural Produce Markets Act, which was challenged as

excessive. The Supreme Court held that the delegation was not excessive but within the limits

prescribed by the parent Act, provided it followed the framework set by the legislation.

In R. K. Garg v. Union of India

,the delegation of powers to impose additional tax by the

central government under the Income Tax Act was challenged as excessive. The Supreme Court

ruled that the delegation was not excessive as it was within the scope of the parent Act’s provisions

and adhered to constitutional limits.

In M.C. Mehta v. Union of India

,the delegation of authority to various environmental

agencies under the Environment Protection Act was challenged for being excessively broad. The

Court found that the delegation was valid as long as it was within the framework of the Act and

provided sufficient guidelines to prevent excessive exercise of power.

SUBSTANTIVE AND PROCEDURAL ULTRA VIRES

Substantive ultra vires: The following heading which have been discussed above may be

included under the area of substantive ultra vires (i) where the parent Act is ultra vires the

constitution, (ii) Delegated legislation is ultra vires the constitution, (iii) where delegated

legislation is ultra vires the parent Act (except conflict with prescribed procedure), (iv) Where

delegated legislation is ultra vires the general law, (v) Unreasonableness, and (vi) Malafide.

(1994) 3 SCC 1

AIR 1981 SC 1829

AIR 1975 SC 2299

(1974) 4 SCC 357

(1981) 4 SCC 675

(1987) 1 SCC 395

Procedural ultra vires: When delegated legislation is not made in accordance with the

procedure prescribed by the enabling Act, it is an instance of procedural ultra vires. But the

important question is whether the procedural requirement was mandatory or merely directory.

It includes the violation of the following

(i) Antecedent publicity

(ii) Post natal publicity,

(iii) Consultation with affected persons.

The requirement that the rule making authority should have consultation with affected interests or

an expert body is built in safeguard against arbitrariness.

PARLIAMENTARY CONTROL

The non use of these techniques raises the doubt whether the members are aware of these

techniques or not but the parliament control is effectively exercised by (i) laying of the delegated

legislation on the table and (ii) by scrutiny committees like Committee on Subordinate Legislation.

COMMITTEE ON SUBORDINATE LEGISLATION

Legislative History: The need for Parliament committee to check the exercise of delegated

legislation has been felt because of the fact that though majority of the delegated legislation are

placed before the House, in practice almost all of them escape without much scrutiny by the House.

To make the parliamentary control more effective the Committee on Ministers’ Powers, in

England, recommended for a select committee of the House for the purpose. In view of this

recommendation the Select Committee on Instruments was established in the House of Commons

in 1944 and it is functioning since then. There was also a Special Orders Committee of the House

of Lords (from 1924) which mainly scrutinizes the subordinate legislation subject to affirmative

resolution.

In 1973, following the report of the Joint Committee of House of Lords and Commons, the

two Houses formed the Joint Committee on Statutory Instruments merging the Scrutiny Committee

and the House of Lords Special Orders Committee on Statutory Instruments. Its Chairman is

normally a member with the policy of delegated legislation but it is concerned with the exercise of

delegated legislation.

On seeing its effectiveness in controlling the delegated legislation, the Indian Parliament

also created two committees on subordinate legislation. One consists of Lok Sabha members and

the other consists of Rajya Sabha members. The Lok Sabha Committee was established in the

year 1953 and the Rajya Sabha Committee in the year 1964. The purpose of creating two separate

committees was only to scrutinize more delegated legislation because two committees can

scrutinize more than what one committee can do.

Where as an Act, enactment or a statutute is made by the legislature, subordinate or delegated

legislation is created by an executive or administrative authority.

Structure and organization

(i) Lok Sabha Committee: It consists of 15 members. They are appointed by the Speaker from among

the members of the Lok Sabha representing all political parties in proportion to their respective

strength. They will hold office for one year. Chairman of the Committee will usually be a member

N.K Jayakumar, Administrative Law, The Academy of Legal Publication, p.39

Id., p.39

C.K Takwani, op. cit., p.67

from the opposition, or the Deputy Speaker, Ministers are totally excluded from being selected as

committee members.

(ii) Rajya Sabha Committee: It also consists of 15 members. They hold office for one year. Chairman

of the Rajya Sabha will nominate the members from the various political parties giving

proportionate representation depending upon their strength in the House. Ministers are not

excluded from being selected as members of the Rajya Sabha Committee.

Administrative Adjudication in India

Administrative adjudication begins when there is any inquiry, investigation and settlement of a

dispute involving a private party by an administrative department or agency.

One of the consequences of the enormous expansion of State activities in modern times, as we

clearly seen, was a corresponding increase in legislative activity leading to the practice of

delegation legislative powers.

What Administrative Tribunals Do

The constitution empowers the appropriate legislatures to make laws to provide for

adjudication or trial by tribunals of any disputes, complaints or offences with respect to all

or any of the specified matters.

Typically, such disputes are settled by administrative tribunals or administrative courts. Just like a

regular court, administrative tribunals hear both parties to the dispute, examine the evidence, and

pronounce decisions. However, administrative tribunals or courts are not considered to be part of

the ‘judiciary.’ Let’s understand why.

Remember, every government has three vital organs to ensure its smooth functioning, namely:

 The legislature

 The executive

 The judiciary

Administrative tribunal is not an executive body or administrative department of the government.

In Bharath Bank Ltd v. Employees

, the Supreme Court observed that although tribunals

share many characteristics of a court and perform quasi-judicial functions, they are not equivalent

to courts.

In Jaswant Sugar Mills Ltd. v. Lakshmi Chand

, the Court held that an administrative

tribunal is an adjudicatory body that exercises judicial powers conferred by a statute or statutory

rules. In Hira Lal Patni v. Kali Nath

, the Supreme Court held that if a tribunal lacks

jurisdiction, its proceedings are vitiated, and any orders passed are nullities. Simply put, this

means that when a tribunal does not have the legal authority to adjudicate a matter, its

actions and decisions are legally void and have no effect. This principle underscores the

importance of jurisdiction as a foundational requirement for the validity of legal

proceedings.

N.K Jayakumar, op. cit., p.49

Halsbury’s Law of India, Administrative Law, Lexis Nexis (2006), pp. 143-145

C.K Takwani, op. cit., p.247

AIR 1950 SC 188

AIR 1963 SC 677

AIR 1962 SC 199

Just as the human body depends on the smooth functioning of its vital organs to stay fit and

healthy, every government requires these three vital organs (listed above) to work perfectly. We

know that the legislature enacts laws to regulate activities in the society while the executive

implements these so as to maintain the law and order in the state. The relevance of the judiciary is

that when there are any crimes that are committed or if there are any disputes about rights, duties,

responsibilities or a question of law that arises, the judiciary interprets the law and delivers a

judgment to settle the dispute.

In Union of India v. Charles David

, the Court held that the factual errors in decision of

the Tribunal can be corrected by Tribunal only. Such correction can be made only by Tribunals.

S.P. Sampath Kumar v. Union of India

, here in this case the constitutional validity of the

Administrative Tribunals Act, 1985, was challenged for excluding the jurisdiction of High Courts

under Articles 226 and 227 in service matters. The Supreme Court upheld the Act but struck down

Section 6(1)(c), which allowed the government unrestricted power to appoint tribunal members

without consulting the Chief Justice of India. The court emphasized that judicial review, a part of

the Constitution’s basic structure, can only be excluded if an effective alternative mechanism

exists. The Act was later amended to reflect the court's directives.

Union of India v. R. Gandhi (President, Madras Bar Association

, here in this case the

petitioner questioned the constitutionality of the National Company Law Tribunal (NCLT) and

Appellate Tribunal (NCLAT). The Supreme Court upheld their validity but required amendments

to the Companies Act. The court acknowledged Parliament's authority to establish tribunals but

emphasized that tribunals must maintain the principles of rule of law, separation of powers, and

judicial independence. Judicial review remains essential to ensure these principles are upheld.

How Administrative Tribunals are Different from Regular Courts

A slight difference in the approach of administrative courts is that they do not follow the principles

of law and evidence but they follow the principles of natural justice. Further, administrative courts

in India are manned by officers from the executive organ of the government, and not from the

judiciary.

Other notable points that make administrative courts different from regular courts are as follows:

 It is not compulsory to have a lawyer to represent your case, if there is scope for adjustment on the

dispute.

 The decision can be determined by experts on a subject and they don’t have to be judges.

 Formal rules pertaining to evidence and witnesses are not necessary.

 There are no complex court procedures.

 Administrative courts are not bound by precedents as they can formulate policy and exercise

considerable flexibility to improve standards and procedures.

Advantages of Administrative Tribunals

The advantages of administrative tribunals are numerous. You don’t have to worry about paying

for court fees, legal representation or pleadings. None of this is essential in administrative courts

or tribunals. Further, as there are no complex procedures, there will be speedy justice. This system

also reduces the burden of pending cases in regular courts. The weight of expert opinion endows

the administrative tribunals with a higher level of professional expertise and transparency.

AIR 1975 AIR 2000 SC 204

(1987) 1 SCC 124,

11 SCC 1

So the advantages of administrative adjudication may be summarized as expediency,

expertise, cheapness, and flexibility.

Disadvantages of Administrative Tribunals

Administrative tribunals and courts have come under considerable criticism. It has limited or non-

existent right to appeal. It has separate laws and procedures that circumvent the celebrated judicial

principles followed by regular courts in the country. Further, the decisions of administrative

tribunals/courts are not documented, preserved or known to the general public.

Examples of Administrative Tribunals in India

Here are some examples of administrative tribunals in India:

 Income Tax Appellate Tribunals

 Election Tribunals

 Labor Courts

 Wage Boards

 Rent Tribunals

 Railway Tribunals

 Industrial Tribunals

 Compensation Tribunals

However, in India, there is a common feeling among laypersons that administrative tribunals do

not act impartially and as a result, citizens fail to secure justice.

Final Legal Take Away Tip: The Indian Constitution safeguards all citizens from such

miscarriage of justice under Articles 32, 136, 226 and 227. The decisions of administrative courts

or tribunals are open to judicial review.

CHAPTER 3

JUDICIAL, QUASI-JUDICIAL AND ADMINISTRATIVE FUNCTIONS

Judicial functions

According to the report of the Donoughmore Committee on Ministers Powers (England) a

judicial function presupposes an existing dispute between two or more parties and it involves the

following requisites:

(a) the presentation of their case by the parties to the dispute.

(b) If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by the

parties to the dispute and with the assistance of argument on behalf of the parties;

(d) A decision which dispose of the whole matter by applying the law to the facts in dispute.

Quasi-judicial function

In the case of quasi-judicial function an authority is not bound to apply the law to the facts

ascertained, but the decision can be arrived on considerations of public policy or administrative

expediency.

JUDICIAL FUNCTIONS QUASI JUDICIAL FUNCTION

1. Judicial function is exercised Quasi-Judicial function is exercised

by the court by administrative bodies.

2. A lis inter parties (dispute between A lis inter parties is not an essential

N.K Jayakumar, op. cit., p.50

two parties) is an essential characterstic in all cases of quasi-

Characteristic of a judicial function judicial function.

3. The rules of evidence should be It is not bound by the rule of

followed in the exercise of evidence

judicial function

4. It is bound by precedents. It is not bound by precedents.

5. It is bound to follow the procedural It is not bound by those procedural

Code (C.P.C., Cr.P.C. and codes

evidence Act)

Distinction between quasi-judicial and administrative functions

QUASI-JUDICIAL ADMINISTRATIVE

1. In the case of quasi-judicial function Administrative function is not a

the authority decides a dispute function of deciding disputes, but

between two contesting parties or it is a function of implementing

a dispute between the authority and a government’s policies.

contesting party.

2. In the case of quasi-judicial function No duty to act judicialy because

the authority has a duty to act the exercise of administrative judicially.

Function mainly depends upon the

discretion of the authority.

3. The principles of natural justice It need not be followed in all cases

must be followed in the exercise of of administrative functions.

quasi-judicial function CHAPTER 4

ADMINISTRATIVE TRIBUNALS

Definition: There is no precise definition to the term ‘tribunal’. Though the term tribunal is used

in our ‘Constitution in Art. 136 and 227 no definition is given to the term tribunal in the

Constitution. A tribunal may be defined as a body independent of a department which is entrusted

with adjudicatory function and whose decisions are binding on the parties (subject to regular

appeal).

Characteristic features of administrative tribunals

1. Administrative tribunals are established by the government by a statute or under a statue.

2. It performs quasi-judicial functions.

3. Its proceedings are deemed to be judicial proceedings.

4. It is not bound by the provisions of CPC or the Evidence Act.

The existing judicial system was inadequate to give a proper solution for the new problems;

hence many administrative tribunals gave birth to deal with such problems.

The economic programme of the state, in particular has created a situation in which new

disputes arise which the ordinary courts have never faced. To solve these disputes many tribunals

were created.

Demerits of administrative tribunal system

1.In India, as there is no general law governing the proceedings of the tribunal, different kinds of

procedure have been adopted by these tribunals and a large number of similar kind of tribunals

adjudicate on the same kind of disputes and give diverse decision.

2.There is no uniform system of appeal against the decisions of the tribunals.

3.In many cases the decision of a tribunal is made as final without affording further appeal to

an aggrieved party.

4.The persons sitting in the tribunals need not be legal experts not they require legal

qualification.

5.The procedural law like C.P.C. and Evidence Act do not apply to administrative tribunals.

6.The decisions are taken on the basis of expediency and various other extra-legal considerations.

7.Departmental bias is one of the inherent lacuna in most of the administrative tribunals.

8.Majority of the tribunals are not required to give reason for their decisions.

9.There is great danger of off-the record consultation by the tribunal ie. decision based on an-

evidence which is not brought to the notice of the other party.

French system

In France the Conseil d’ Etat function as the Supereme Appellate Tribunal over all other

administrative tribunals. Thus the decisions of the administrative tribunals are reviewed by the

Counseil d’ Etat and the ordinary courts have no jurisdiction over the tribunals.

In India the appointment of the Supreme Appellate Tribunal on the pattern Counseil d’ Etat

was considered by the Law Commission in its 14th Report.

Domestic tribunals

Domestic tribunals are adjudicators bodies meant for regulating the internal discipline of

certain associations, bodies, or institutions. Domestic tribunals are two types. They are (i)

Statutory domestic tribunal and (ii) Private domestic tribunals.

Statutory domestic tribunals are generally created either by or under a statute to deal with

the members of their respective organization. They are bound to follow the principles of natural

justice. Bar Councils under Advocates.

Private domestic tribunals are created by the management of the private sector or voluntary

association to enquire into the alleged misconduct of their workers. A domestic tribunal

constituted by a private college to enquire into the misconduct of its staff.

CHAPTER 5

PRINCIPLES OF NATURAL JUSTICE

The principles of natural justice is an important concept in the study of administrative law.

It is universal principle.

Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure

justice to citizens.Rules of natural justice are “basic values”.

Administrative authorities entrusted with quasi-judicial functions are required to act with

fairness and in just and equitable manner or in other words, they must observe the irreducible

minimum norms of judicial behavior.

The common lawyer however, understands the concept with a narrow precision as consisting of

two principles. They are

1. Nemo judex non causa Sua – Rule against bias (No one shall be a judge in his own cause). This

was laid down by Lord Coke in Dr. Bonhanm’s case This was further developed with a view to

strengthening the public confidence in the administration of justice.

2. Audi alteram partem – rule of fair hearing (No one shall be condemned without hearing).

C.K Takwani, op. cit., p.181

N.K Jayakumar, op. cit., p.50

S.P Sathe, op. cit., p.175

The principle of Audi alteram partem, which mandates that no one shall be condemned unheard,

is an aspect of natural justice.

It is settled law and there is no dispute that the principles of natural justice are binding on

all courts, judicial bodies, and quasi-judicial authorities.

THE RULE AGAINST BIAS

The rule against bias originates from the maxim “Nemo judex in causa sua”. It means no

one shall be a judge in his own cause (The term ‘judge’ used here means not only the judges of the

court but also all administrative adjudicatory authorities). The word ‘bias’ is derived from the

French word ‘bias’ meaning oblique as opposed to straight, literally it means as ‘interest’.

The judge must be impartial and neutral to decide the case objectively, fairly and

impartially. The rule against bias aims at guaranteeing an impartial adjudicator and strikes against

those factors which may influence a judge one way or other in deciding a dispute. The rule against

bias applies to judicial, quasi-judicial and administrative decisions.

The bias which disqualifies a person from being an adjudicator falls into four broad classes.

They are as follows: (i) Personal bias, (ii) Pecuniary bias, (iii) Official bias and (iv) Pre-judgement

of cases. I.PERSONAL BIAS

Personal bias means a personal feeling in favour or against a party ie. favouritism or

hostility towards a party to the dispute. Personal bias arises from certain relationship or enimical

terms between the adjudicatory authority and the parties before him. Here a judge may be a

relative, friend or business associate of a party.He may have some personal grudge, enmity or

grievance or professional against such party.

Personal bias disqualifies a person from acting as a

judge.

In State of U.P. v. Mohammed Nooh

, the Supreme Court of India ruled that if an

administrative authority is biased or unfair towards a party, any decision made by that authority

can be canceled. The Court stressed that fairness and impartiality are crucial in administrative

proceedings, and if the decision-maker shows personal bias, the decision becomes invalid.

(a) Personal Relationship

Adjudicator’s close personal relationship with a party to the dispute is a disqualification to sit as

an adjudicator.

In D.K.Khana v. Union of India

, the father in law was member of the Selection

Committee of I.A.S and the son in law was a candidate. Though the father in law did not take

part in the deliberations when the son in law’s candidature was considered his selection was

quashed.

(b) Personal Friendship

This may arise by virtue of professional, business, or other vocational relationship between

the judge and a party to the dispute. It may be a present or past friendship. Personal friendship

may disqualify a judge if there is real likelihood of bias.

M.C Jain Kagzi, The Administrative Law, Universal Publications (2016), p.143

C.K Takwani, op. cit., p.184

C.K Takwani, Lectures on Administrative Law, EBC Publication (2016), p.191

AIR 1958 SC 86

AIR 1973 HP 30.

If there is enimity or ill-will between an adjudicator and a party to the dispute it gives rise

to a real likelihood of bias and his decision can be quashed on the ground of personal hostility.

(d) Judge Witness Combination

When an adjudicator takes his own evidence to arrive the final decision, it is liable to be quashed

because when he takes his evidence in support of one party he becomes interested towards that

party and thereby becomes, disqualified to act as a judge. Principles of natural justice do not allow

a person to act in double role as judge and a witness.

(e) Judge Prosecutor Combination

In Parthasarathy v. State of A.P

, the person who framed the charges also acted as the Inquiry

Officer. The Court found that it is wrong

(f) Judge, prosecutor and witness combination

In Meenglass Tea Estate v. Workmen

, all the above three roles were played by one and the same

person in an enquiry. The Court quashed the findings.

(g) Judge in his own cause

In A.K. Kraipak v. Union of India

, a candidate for Indian Forest Service was also an ex-officio

member of the Selection Board. Though the father in law did not take part in the deliberations

when the son in law’s candidature was considered his selection was quashed.

II.PECUNIARY BIAS

Pecuniary bias arrises from a monetary interest in the subject matter of dispute.

Dimes v. Grant Jn. Canal Co.

is the leading English case on the rule against pecuniary

bias. In this case the decision of the Lord chancellor in favour of the Canal Company was quashed

by the House of Lords because he was a share holder in the company.

In Manak Lal v. Prem Chand Singhvi

, the Court ruled that even a small financial interest in the

subject matter of a case would completely disqualify a person from serving as a judge.

III.OFFICIAL BIAS

It is otherwise known as ministerial, departmental, or policy bias official bias denotes the

commitedness which an officer has towards the implementation of official policy.

In Gullappali Nageshwara Rao v. A.P S.R.T.C.

, the Supreme Court examined the application of

the doctrine of official bias. In this case, the hearing was conducted by the Minister, rather than by

the Secretary, which raised questions regarding the impartiality of the decision-making process.

IV.BIAS DUE TO PRE-JUDGEMENT OF ISSUES

If the prior policy statement was a final and irrevocable decision which closes the mind of

the authority to the merits of the case it is called pre-judement of the issues and the concerned

official is disqualified to act as the adjudicator in that particular matter.

EXCEPTION TO THE RULE-AGAINST BIAS

1.Doctrine of Necessity: In such cases natural justice has to give way to necessity.

Otherwise the administration of justice will break down because there is no other machinery or

means to decide.

2.Audi alteram partem rule/The Rule of Fair Hearing

AIR 1973 SC 2701.

AIR 1963 SC 1719.

AIR 1970 SC 150.

1982, 3 HLC 759.

AIR 1957 SC 425

AIR 1959 SC 1376

The second fundamental principle of natural justice is audi alteram partem ie. no

one shall be condemned unheared.

INGREDIENTS OF FAIR HEARING

(i) Notice : Notice is the starting point of hearing. The notice must be reasonable and

adequate ie. it must contain the time, place, nature of hearing.

(ii) Right to Present the Case and Evidence: A fair hearing necessarily involves that the

authority must give reasonable opportunity to the parties concerned to present their case in full ie.

it must provide full an defective opportunity to present, the relevant evidence (oral and

documentary). Otherwise the parties may not be in a position to prove the points in their favour.

(iii) Disclosure of Evidence to the Party : when the adjudicatory authority is relying on

some materials against a person, it can not base its decision on such material unless the person, it

can not base its decision on such material unless the person against whom it is sought to be utilized

has been given an documents and preliminary enquiry reports on a matter). This essentials of a fair

hearing gives an opportunity to a person to explain, criticize or rebut the evidence of the other side.

(iv) Opportunity to Rebut Adverse Evidence: It is not enough that the party should

know the adverse material on file but it is further necessary that he must have an opportunity to

rebut the adverse evidence against him.

(v) No Evidence should be taken in the Absence of the Other Party: Generally all

the evidences must be taken in the presence of the accused. This rule of evidence is followed in

administrative adjudication also as a part of the fair hearing, but in exceptional circumstances it

may be dispensed with.

(vi) Cross – Examination : Cross – examination is one of the most powerful weapon

to elicit and establish truth and expose falsehood.

In Kamalendu Prasad Pudhi v. Sambalpur University

, the Court observed there a denial

of natural justice if the right of cross-examining witness is refused when demanded.

(vii) Right to legal Representation: Representation through a lawyer in the

administrative adjudication is not considered as an indispensable part of the fair hearing.

Earlier, the judicial approach was hesitant in the matter of granting representation through

a counsel if the relevant statute was silent on the point. Presently, the situation has changed.

(viii) One who Hears must Decide:

In Pradyat Kumar Bose v. Chief Justice of Calcutta

, there was allegation of misconduct

against the Registrar of High Court. The CJ ordered Enquiry which was conducted by another

judge. On the basis of the Enquiry Report the Registrar was dismissed from service. The SC held

that in pure administrative matters ‘One who hears must decide’ rule need not be followed.

(ix) Reasoned Decision (or) Speaking Order: In India, inspite of the recommendation

of the first Law Commission there is no general statutory requirement that the quasi-judicial or

administrative bodies should state their reasons in support of their decision.

Reasoned decision introduces clarity and excludes or atleast minimizes arbitrariness and

gives satisfaction to the party against who the order is made.

The law relating to speaking order may be summed up as follows:

1. When a statute requires that reason must be stated it should be strictly followed.

AIR 1976 Ori 134

Halsbury’s Law of India, Administrative Law, Lexis Nexis (2006), p.005.001

AIR 1956 SC 255.

2.Where a statute is silent regarding reasoned decision, there arises the application of the

principles of natural justice to give reasons for its decision

3.There is no prescribed form or style for reasons. It need not be in elaborate or detail.

Giving the relevant reason are sufficient.

4.If the order is subject to appeal, revision or review, the necessity of recording reasons is

greater. Otherwise those remedies cannot be effectively exercised

5.It is not mandatory that reasons must be recorded in all administrative decisions.

CHAPTER 6

JUDICIAL

1.INJUNCTION

They are (i) temporary, (ii) perpetual and (iii) mandatory. The granting of injection is

regulated by C.P.C.

(i) Temporary Injunction: S. 37 (i) of the Specific Relief Act, 1963 deals with the

temporary injunction. Temporary injunction will continue only for a specified period or until

further order of the Court. It may be granted at any stage of a suit. It is also called as interlocutory

injunction.

(ii) Perpetual Injunctions: S. 37 (2) of the Specific Relief Act, 1963 deal with the

perpetual injunction. It can only be granted by the decree made at the hearing and upon the merits

of the suit. By perpetual injunction the defendant will be perpetually (permanent) restrained from

the assertion of a right, or from the commission of an act, which would be contrary to the right of

the plaintiff.

(iv) Mandatory Injunction: S. 39 of the Specific Relief Act, 1963 deals with the mandatory

injunction. It is an order of a court requiring the defendant to do some positive act for the purpose

of putting an end to a wrongful state of things created by him. It is, therefore, in its nature both

prohibitory and restitutory. II. DECLARATOY ACTION

Declaration is a judicial order issued by the court simply declaring the rights of the parties without

giving any further reliefs.

This order is not issued:

1. Where the plaintiff has no legal interest to sustain the action

2. Where the claim is premature

3. Where the issue is not real

4. Where the situation on which the petition/plaint was based no longer exist

5. When there is no substantial injury to the plaintiff

6. Where the defendant has not denied the plaintiff’s claim

7. Where the declaration may not give any benefit to the party obtaining it

8. Where there is inordinate delay

9. When the declaration is infructuous

10. Where there is an adequate alternative remedy.

CHAPTER 7

TORTIOUS LIABILITY OF THE STATE

After the commencement of the Constitution the question of the extent of the liability of

the state for the tortuous acts of its servants was raised in many cases. Following are some of the

important Supreme Court decisions on this question.

In State of Rajastan v. Vidyawathi

when a District Collector’s official jeep was taken

from a workshop after repair, due to rash and negligent driving, a pedestrian was knocked down.

He died and his widow sued the driver and the state for damages. The government claimed

sovereign immunity. A Constitution Bench of the Supreme Court negatived the government’s

claim and held that the state was vicariously liable for the rash and negligent driving of the driver.

The Court after referring to the P & O Steam Navigation case did not go deep into the

question of the distinction between sovereign and non-sovereign functions. It held that the rule of

sovereign immunity based on the English law had no validity in India. This decision makes it

clear that the distinction between sovereign and non-sovereign function is no longer necessary and

the government cannot claim any immunity so long as the tort is committed by its servant in the

course of his employment.

But in a later case Kasturilal v. State of U.P.

the observations quoted above in

Vidyawathi’s case was treated as obiter dictum and the distinction between sovereign and non-

sovereign function which was introduced in the P & O Steam Navigation case was reintroduced.

In this case the plaintiff was arrested by the police while he was going to meerut to sell gold, silver

and other goods, and the gold in his possession stolen property

In Union of India v. Sadashiv Vinayak Vaika

the plaintiff’s son was knocked down while

a military crane belonging to the defence department was being towed away for repairs by army

personnel. The Bomaby High Court held that the Union of India could not claim sovereign

immunity and made the government liable for damages.

In Union of India v. Mohd. Nazim

the Post Office was held liable for the theft of a railway

receipt from a registered envelope by one of its employees.

In Ramkonda Reddy v. State

the Andhra Pradesh High Court held that the State was liable

to pay compensation for the death of an undertrial prisoner, which took place due to negligence of

the prison authorities. The High court after reviewing the recent case laws observed that sovereign

immunity could no longer be applicable to cases of violations of fundamental right to life and

personal liberty guaranteed by Art – 21.

From the above decisions, the principle which emerges is that if the function involved is a

‘sovereign function’ the State cannot be held liable, but if it is a ‘non-sovereign function’ the state

is liable. But the difficulty lies in drawing a distinction between the sovereign and non-sovereign

function, because there is no definite criteria to define an act to which category it belongs. There

are instances where a similar type of function has been held sovereign as well as non-sovereign by

different High Courts. Though the Supreme Court has laid down certain tests, it is also defective

and confusing. A comprehensive legislation defining the extent of the State’s liability in tort is

the only remedy.

COMPENSATION FOR UNLAWFUL DETENTION

In Rudal Shah v. State of Bihar

the Supreme Court awarded Rs.30,000 as damages against

the State because the petitioner was kept in jail for 14 years after his acquittal by the court of

session, without any valid reason for his continued detention for such a long period. He was

released only when a habeas corpus petition was moved on his behalf in the Supreme Court.

(AIR 1962 SC 933)

(AIR 1962 SC 1039)

(AIR 1985 Bom. 345)

(AIR 1980 Sc 431)

(AIR 1989 A.P. 235)

(AIR 1983 SC 1086)

In Bhim Sing v. State J.K.

the Court awarded Rs.50,000 as compensation to a Kashmir

legislator, Mr. Bhim Singh, who was illegally detained to prevent him from attending the assembly

session. In the above two cases, though the tort was committed in the exercise of sovereign

function the court has awarded compensation.

Position in England: In England the principle of State immunity was developed on the force

of the maxim “King can do no wrong”. Before passing the Crown Proceedings Act, 1947 the

Crown was given full immunity from all legal proceedings. The courts were treated as the Kings’s

Court and the King could not be sued in hi sown court. After passing of the Crown Proceedings

Act, 1947 suit can be filed against the government for negligence of its servants.

In Nilabati Behra v. State of Orissa

the deseased’s mother was awarded Rs. 1,50,0000/- as

compensation

In Chandrima Das v. Railway Board

the Court awarded 10,00,000/-.

Position in U.S.A.: In S.S.A. Federal Torts Claims Act, 1946 deals with the State liability

in tort.

In the olden days State enjoyed so many privileges under the cover of the maxim ‘King

can do no wrong’. But in the modern welfare state, due to the development of the administrative

law many of those privileges were faded our step by step.

The main difference between estoppel and promissory estoppel is that estoppel is a rule of

evidence which can be pleaded as a defence in a suit but promissory estoppel gives a cause of

action for a suit ie. a suit can be filed on the basis of promissory estoppel.

Stated simply, estoppel is a bar which prevents a party from asserting a fact or putting up claim

inconsistent with the position he previously took either by words or by conduct.

CHAPTER 8

OMBUDSMAN

Increasing power of the administration result in greater opportunities of abuse or

misuse of power by officials. Judicial control, because of several limitations, can reach only

their periphery of administrative action. It was in this context that the institution of

ombudsman was introduced.

Ombudsman is an officer of the Parliament having the main function to investigate

allegation of maladministration and safeguard the citizens against misuse of administrative power

by the executive.

The institution of Ombudsman serves two important purposes,

1. Redressal of individual grievances arising out of maladministration

2. Making more effective legislative supervision of the administration.

The dictionary meaning of the term “Ombudsman” is a person appointed by a legislative

body, to receive, investigate and report on complaints by private individuals against government

official or a grievance man or an official who is appointed to investigate a complaint against the

administration, any official with similar function.

Origin of Ombudsman System

(1985 4 SC 677)

1993 SCR (2) 581

AIR 2000 SUPREME COURT 988

C.K Takwani, op. cit., p.477

N.K Jayakumar, op. cit., p.163

N.K Jayakumar, Administrative Law, The Academy of Legal Publications (1987), p.163

An important advantage of the ombudsman system is that the complainant is not requires

to prove his allegations before the Ombudsman. The Ombudsman has access t o departmental files

and he will make an enquiry to find out whether the complaint is justified or not.

The institution of Ombudsman originated in Sweden in 1809. Finland adopted this system

in1919 and Denmark in 1953. But New Zealand is the first country with a parliamentary form of

government to adopt it

. However the system of Ombudsman was popularized by the insurance

industry in UK. “Justice”, the British wing of the International Commission of Jurists constituted

a Committee headed by Sir John Whyatt published the Report with the title, ‘the Citizen and

Administration- the Redress of Grievances’, in 1961. In 1967 an institution which is rudimentary

form of Ombudsman came into being in England under the Parliamentary Commissioner Act.

1967. Object of Ombudsman System

The Ombudsman System is primarily intended to be an adjudicatory system for

administrative actions. It purpose is to rectify the various hardships faced by citizens from the

administrative authorities. The Administrative authorities may be insensitive or causing undue

delay or over enthusiastic pursuit of policy or mala fide exercise of power. To be precise

ombudsman system is intended to curb what is commonly referred as ‘maladministration’.

The term Ombudsman refers to an official who is appointed to investigate complaints

against the administration. An ombudsman can give relief on many grounds on which the courts

are not able to provide any relief. One essential feature of 'ombudsman' is that he has access to

departmental files on the basis of which conclusions regarding fault or lapse could be arrived at.

Engagement of lawyer is said to be not necessary as it is said that the Ombudsman himself is the

complaint's lawyer. Usually he is appointed by the legislature acting on behalf of it and reporting

to the legislature. To some extent he also acts as an external agency to probe into administrative

faults. Citizen's grievances are investigated independently and he assists the citizen to get adequate

remedy from the department concerned.

System of Ombudsman in India – Lokpal

The successful functioning of the Ombudsman System in New Zealand, England, and

Australia inspired India to establish an institution on similar lines.

The Administrative Reforms Commission recommended the adoption of an ombudsman

type institution in India. The Commission said that the redressal of citizens grievances is basic to

the functioning of democratic governments and will strengthen the government in administering

the laws of the land. There is a general feeling of prevalence of corruption and inefficiency. An

institution suitable to the federal structure, parliamentary form of government and ministerial

responsibility was to be evolved for the purpose. The Law Commission of India in its 100th Report

on Litigation by and against the Government recommended the adoption of the Ombudsman in

India. The Lokpal Bill of 1971 and the Lokpal Bill of 1977 though lapsed, provided the basis or

model for further legislation. The Bill of 1971 sought to provide for investigation of complaints as

well as redressal of grievances of citizens. Its emphasis lay on maladministration. The 1971 Bill

shifted the emphasis on corruption. Thus in a way the new approach has gone away from the

Ombudsman model. The Bill was again introduced in 1985 which was referred to a Joint

N.K Jayakumar, op. cit., p.163

it was adopted by New Zealand in 1962

N.K Jayakumar, op. cit., p.163

Committee of both the Houses. It was opposed as a very restrictive Bill. The opposition wanted to

bring the Prime Minister also within the purview of the Lokpal. The 1939 Bill included the Prime

Minister also within the purview of the Lokpal.

There can be a Chairman and two members appointed by the President in consultation with

the Chief Justice of India. Only persons who are or who have been judges of the Supreme Court

are eligible to be appointed. Persons holding office of profit are disqualified from becoming the

Chairman or members. Special procedure is prescribed for removal of a person once appointed.

The object is to inquire into any matter involved in or arising from or connected with any

allegation made in a complaint. A complaint is one as against a public functionary alleging the

commission of an offence under the Prevention of Corruption Act. Public functionary includes one

who holds, or has held, the office of Prime Minister, Minister Minister of state or Deputy Minister

of the Union. Connected matters as far as it is required for inquiry into the above mentioned

allegation may also be looked into. In effect it amounts to a pre-trial enquiry into matters alleged

to be offences under the Prevention of Corruption Act.

The complaint can be made by any person other than a public servant which is very widely

defined in the Act. The complaint is to be in the prescribed form. A deposit Rs. 1000 is to be made

with the complaint. This is to avoid frivolous and vexatious complaints. If the complaint has been

substantiated the complainant can be awarded a compensation. The Lokpal shall be entitled to try

certain offences like giving of false evidence. The Lokpal shall require any public servant to

furnish information or produce documents relevant to the inquiry. The evidence collected by the

Lokpal in the course of the inquiry is to be treated as confidential. No court could compel the

Lokpal or any officer working on its behalf to give evidence relating to the information collected.

The Lokpal is endowed with the jurisdiction to summon attendance of persons, to examine them

on oath, to require discovery and production of documents, to accept affidavits, to requisition

public documents and to issue commissions. Though the Lokpal is having the power to determine

the procedure of inquiry, there is no power to act suo mofu.

THE BANKING OMBUDSMAN SCHEME, 1995

In India presently there are two Ombudsman Schemes one in Banking Ombudsman and

other in the Building Society’s Ombudsman. The Banking Ombudsman Scheme was sponsored

by the banks through a voluntary scheme and started functioning w.e.f. January, 1986. The system

of Ombudsman is in vogue in various countries like U.K, New Zealand and Australia. The

Government of India also considered to introduce the system of appointing Banking Ombudsman

to redress the grievances of the customers against the banks.

The scheme known as Banking Ombudsman Scheme, 1995 was framed by the Reserve

Bank of India and issued under Section 35-A of the Banking Regulation Act, 1949 being satisfied

that it is necessary in public interest and in the interest of banking policy to provide such scheme

for redressal of grievances against deficiency in banking services concerning loans and advances

and other specified matters. Under Section 35-A Banking Regulation Act, 1949 the Reserve Bank

has the power to issue directions to the banks in public interest and in the interest of banking policy.

Such direction is binding on the banks. The Banking Ombudsmans have only administrative

powers and not having quasi judicial authority, whose decisions are binding upon the complainant

and the banks equally. Therefore the Banking Ombudsman has no authority to enforce the awards

passed by it against the complainant. The machinery which is provided by the Banking

Ombudsman is more of a persuasive nature. The awards passed by the Banking Ombudsman

cannot be enforced except with the help of the Reserve Bank of India, which may use its power

conferred to it under Banking Regulation Act, 1949. It would have been better and more

appropriate, if the Banking Ombudsman Scheme would have been enacted by a statute, conferring

all statutory powers on the Banking Ombudsman like a civil court, so that the scheme would have

been more useful.

Applicability of the Scheme

The Banking Ombudsman Scheme, 1995 applies to the business in India of every

commercial bank (other than Regional Rural Banks) and Scheduled Primary Co-operative banks

having a place of business in India, whether such bank is incorporated in India or outside India.

Object of the Scheme

The object of the scheme is to enable resolution of complaints relating to provision of banking

services and to facilitate the satisfaction, or settlement of such complaints.