Declaration as a Remedy Against the Administration
Chapter Ninety-Nine
Syllabus topic 6, "Remedies"
Pages 296 to 298 of 430
In one line
A declaration is a court's statement of what the legal position is, and it works against the administration because an administration that knows it has lost usually complies.
In the wording a student can write in an exam: section 34 of the Specific Relief Act 1963 provides that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny his title to such character or right, and the court may in its discretion make a declaration that he is so entitled; the proviso bars a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
The provision, in its own words
Section 34 also carries an Explanation: a trustee of property is a person interested to deny a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
Section 35 provides that a declaration made under Chapter VI is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, those parties would be trustees.
The elements a student must be able to list
A legal character or a right to property. Legal character means status: a citizen, an heir, a member of a service, the holder of an office. The expression is wide enough to cover a person's status as an employee, which is why the remedy matters in service cases.
A denial, or a person interested to deny. The defendant must be denying the plaintiff's title, or be interested in denying it.
The court's discretion. The section says the court may in its discretion make the declaration.
The proviso. If the plaintiff can ask for consequential relief and does not, no declaration will be made. So a dismissed employee who could ask for reinstatement and arrears must ask for them, and cannot sue for a bare declaration that his dismissal is void.
Section 35: binding only on the parties. This is the great weakness of the remedy compared with a writ, which quashes the order for all purposes.
Why the remedy matters against the administration
Because it fits an invalid order exactly. If the order is a nullity, what the citizen wants is a statement that it is, and a declaration says so.
Because it survives where a writ is refused. A civil suit is available as of right, so a person defeated by laches or by a disputed question of fact may still sue.
Declaration as a Remedy Against the Administration
Because it reaches questions a writ court avoids. Title, status and disputed facts are tried on evidence.
Because statutory regulations have the force of law. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, holds that an employee of a statutory corporation removed in breach of regulations having the force of law is entitled to a declaration that the removal is void and that he continues in service, rather than to damages alone. That is the most important Indian application of the remedy in this subject.
The disadvantages
It requires a suit, with pleadings, evidence, court fees, and notice under section 80 of the Code of Civil Procedure where the Government or a public officer is sued in his official capacity.
It is slow.
It binds only the parties, by section 35.
It is discretionary, and the proviso bars a bare declaration where consequential relief is available.
Declaration and certiorari compared
| Declaration under section 34 | Certiorari under Article 226 | |
|---|---|---|
| Court | Civil court, in a suit | High Court, in a petition |
| Effect | Binds the parties and those claiming through them: section 35 | Quashes the order for all purposes |
| Facts | Tried on evidence | Not tried |
| Availability | As of right, subject to the proviso and discretion | Discretionary throughout |
| Speed | Slow | Fast |
| Consequential relief | Must be asked for, or the declaration is barred | The court may mould relief |
A worked example
An employee of a State corporation is removed by an officer not empowered by the regulations to remove him. He sues.
He is entitled to a declaration that the order is void and that he continues in service, on Sukhdev Singh, because the regulations have the force of law. But he must also ask for the consequential reliefs of reinstatement and arrears, or the proviso to section 34 will bar the declaration. And the decree will bind the corporation and those claiming through it, and nobody else, which is section 35.
What this does NOT mean
It does not mean a declaration is available for any grievance. It requires a legal character or a right to property.
It does not mean the court must grant it. The discretion is real, and delay, conduct and futility all operate.
It does not mean a declaration cannot be sought in a writ petition. It can; section 34 governs the suit, not the writ jurisdiction.
Quick revision
Section 34: a person entitled to a legal character or to a right as to property may sue a person denying it, and the court may in its discretion declare that he is so entitled; the proviso bars a bare declaration where consequential relief is available and is not asked for; the Explanation covers trustees. Section 35 makes the declaration binding only on the parties and those claiming through them. Sukhdev Singh is the leading application: regulations with the force of law give a declaration of continuance in service rather than damages. The remedy is slow, needs a suit and section 80 notice, and binds only the parties, but it is available as of right and tries facts.
Declaration as a Remedy Against the Administration
Test yourself
1. What must a plaintiff show under section 34? Entitlement to a legal character or to a right as to property, and a defendant who denies it or is interested to deny it.
2. What does the proviso to section 34 do? It bars a declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
3. Why is a declaration weaker than certiorari? Because section 35 makes it binding only on the parties and those claiming through them, whereas certiorari quashes the order altogether.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.