BLS LLB 5 Years Sem 7 Administrative Law 2017-18 Question Paper with Solutions

Ivor Jennings: administrative law is "the law relating to the administration. It determines the organisation, powers and duties of administrative authorities."

K.C. Davis: it is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.

In substance it is the branch of public law that governs how the executive is organised, what powers it may exercise, by what procedure it must exercise them, and what remedies lie when it exceeds or abuses them.

Droit administratif is the French system of administrative law: a body of rules developed by the administrative courts, and not by the ordinary civil courts, which governs the relations between the citizen and the administration and the liability of the State and its officials.

At its apex is the Conseil d'Etat, which decides disputes between the citizen and the administration and to which an aggrieved citizen goes instead of to the ordinary courts.

A speaking order is an order that speaks for itself, that is, one which records the reasons on which it is based. It is also called a reasoned decision.

The requirement to pass a speaking order is now treated as the third principle of natural justice, alongside the rule against bias and the right to be heard, and applies to quasi-judicial and to most administrative orders affecting rights.

Public corporations are classified as:

1. Statutory corporations, created by a special Act of Parliament or a State legislature which fixes their powers, duties and management, for example the Life Insurance Corporation of India (LIC Act, 1956), the Reserve Bank of India and the Food Corporation of India;
2. Registered or Government companies, incorporated under the Companies Act with not less than 51 per cent of the paid-up capital held by the Government, for example Steel Authority of India Ltd.; and
3. Chartered corporations, created by royal charter, a class of historical importance only in India.

A further working division is into commercial, development, financial, promotional and regulatory or social service corporations, by the function performed.

A post-decisional hearing is a hearing given after the order has been made, in a case where a pre-decisional hearing was not possible because the situation required immediate action.

It is a substitute in exceptional cases, not the rule. The order remains provisional in effect until the hearing is held and the authority has genuinely reconsidered.

1. Illegality: the authority misdirected itself in law, acted without jurisdiction, or acted ultra vires the parent Act;
2. Irrationality: the decision is so unreasonable that no reasonable authority could have come to it, the Wednesbury standard from Associated Provincial Picture Houses v. Wednesbury Corporation (1948);
3. Procedural impropriety: breach of natural justice or of the procedure laid down by the statute.

Lord Diplock added that proportionality might in time be a fourth ground, and Indian courts now apply it where fundamental rights are affected.

Limits. The court will refuse relief where there is an adequate alternative remedy, where the petitioner is guilty of laches, where the question is a policy matter or one of pure academic interest, and where the petition raises disputed questions of fact requiring evidence.

4. the legislature exercises judicial functions in punishing for its own contempt and in impeachment;
5. the higher judiciary makes rules of procedure and exercises administrative control over subordinate courts under Articles 145, 227 and 229.

The leading cases. In Ram Jawaya Kapur v. State of Punjab (1955) the Supreme Court held that the Indian Constitution has not indeed recognised the doctrine in its absolute rigidity, but the functions of the different parts have been sufficiently differentiated. In Indira Nehru Gandhi v. Raj Narain (1975) clause 4 of the 39th Amendment, which purported to decide an election dispute by constitutional amendment, was struck down: adjudication of a specific dispute is a judicial function which Parliament cannot take upon itself. In Kesavananda Bharati separation of powers was held part of the basic structure.

4. usually has a technical or expert member alongside a judicial member;
5. is under the superintendence of the High Court under Article 227 and subject to Article 226 review.

Distinction from a court. A court is part of the traditional judiciary and exercises the judicial power of the State generally; a tribunal is an agency created for a specific purpose. A court is presided over by a judge trained in law; a tribunal may include an administrator or an expert. A court follows the CPC and the Evidence Act; a tribunal follows its own procedure. A court's decisions are precedents; a tribunal's are generally not.

Judicial control. S.P. Sampath Kumar v. Union of India (1987) upheld the Administrative Tribunals Act, 1985, on the footing that the tribunal was an effective substitute for the High Court. L. Chandra Kumar v. Union of India (1997) then held that the power of judicial review of the High Courts under Article 226 and 227 and of the Supreme Court under Article 32 is part of the basic structure and cannot be excluded: tribunal decisions are subject to review by a Division Bench of the High Court, and the exclusion clauses in Articles 323A(2)(d) and 323B(3)(d) are to that extent unconstitutional.

Atlas Cycle Industries Ltd. v. State of Haryana (1979) held that where the statute merely requires a rule to be laid, the laying requirement is directory, so a failure to lay does not by itself invalidate the rule; where it is a condition of validity, it is mandatory.

3. Scrutiny by committee. The Committee on Subordinate Legislation of the Lok Sabha (constituted 1953) and of the Rajya Sabha (1964) examine whether rules are within the powers conferred, whether they impose taxation or oust the jurisdiction of courts, whether they have retrospective effect, and whether there has been unjustifiable delay in laying them.

2. that the distinction between quasi-judicial and administrative functions is thin and is gradually being obliterated, and the principles of natural justice apply to administrative action as well wherever it affects rights;
3. that natural justice is not confined to a "judicial" enquiry: its aim is "to prevent miscarriage of justice", and what it requires depends on the facts, the framework of the law and the nature of the power.

2. that the earlier line of cases requiring a "superadded duty to act judicially", founded on R. v. Electricity Commissioners as read in Nakkuda Ali v. Jayaratne (1951), was wrongly decided and was departed from;
3. that an office held at pleasure may be terminated without a hearing, but an office from which a man can be removed only for cause cannot be, and a Chief Constable was in the second class.

(a) Is the removal of Ramesh correct? Give reasons.

No. The removal is bad in law and is liable to be quashed.

A head clerk in a Collector's office holds a civil post under a State, so the protection of Article 311 applies to him.

1. Article 311(2) provides that no such person shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. He was removed "without any intimation", so there was no charge sheet, no inquiry and no hearing. The mandatory constitutional requirement was simply not complied with.

4. Union of India v. Tulsiram Patel (1985) is the leading authority. The Constitution Bench held that the second proviso dispenses with the inquiry, not with natural justice generally, and that the reasons for invoking clause (b) must be recorded and are open to judicial scrutiny.
5. Article 311(1) must also be satisfied: he cannot be removed by an authority subordinate to that by which he was appointed (see State of Madhya Pradesh v. Shardul Singh, 1970, where the Court held that the dismissing authority need only be of equal or higher rank than the appointing authority).

(b) On what grounds Ramesh can file petition in the high court in the above situation?

He may file a writ petition under Article 226. The grounds are:

1. Violation of Article 311(2): removal without the constitutionally required inquiry and hearing;
2. Breach of the principles of natural justice: no notice of the charge, no opportunity to defend, and no speaking order recording reasons;
3. Violation of Articles 14 and 16: arbitrary State action in the matter of public employment;

(a) Can such nomination be challenged? Give reasons.

Yes. The Governor's power of nomination is a conditioned statutory power, not an unfettered discretion, and an appointment outside the condition can be challenged.

1. Article 171(3)(e) provides that the remainder of the members of a Legislative Council, that is one-sixth of the total, shall be nominated by the Governor.
2. Article 171(5) fixes the qualification: those members shall be persons having special knowledge or practical experience in respect of literature, science, art, co-operative movement and social service.

2. the office must be of a substantive character, that is, permanent and independent, not the office of a servant at the pleasure of another;
3. the holder must be in actual possession of the office; and
4. the holder must have been appointed contrary to law, or must not possess the qualification prescribed.

A seat in the Legislative Council is a public office of a substantive character created by the Constitution, and the alleged defect is want of the qualification prescribed by Article 171(5). Quo warranto therefore lies.

Two further points. In quo warranto the rule of locus standi is relaxed: any member of the public acting bona fide may apply, because the object is to prevent a usurper from occupying a public office and not to vindicate a private right. And the writ operates on the title to the office; it does not decide the merits of the appointee's work.

2. Violation of Article 19(1)(a): freedom of speech and expression includes the freedom to exhibit a film, and a direction to excise scenes is a restriction on it. The restriction must be saved by Article 19(2), that is, it must be a reasonable restriction imposed by law in the interests of, among other things, decency or morality.
3. Wrong legal test of obscenity: that the Board applied the discarded Hicklin test of Ranjit D. Udeshi v. State of Maharashtra (1965), which judged a work by its effect on the most susceptible mind, instead of the community standards test adopted in Aveek Sarkar v. State of West Bengal (2014), which judges the material as a whole by the standards of an ordinary person of common sense.
4. Irrelevant considerations and unreasonableness: that the Board looked at scenes in isolation instead of the theme of the film as a whole, contrary to Bobby Art International v. Om Pal Singh Hoon (1996), the Bandit Queen case, where scenes of rape and nudity were held not obscene when seen in the context of the film's message.

2. Section 5B(1) lays down the grounds, in language that tracks Article 19(2): a film shall not be certified if it or any part of it is against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of any offence. Section 5B(2) empowers the Central Government to issue guidelines, which it has.
3. Pre-censorship of films is constitutionally valid. In K.A. Abbas v. Union of India (1971) the Supreme Court upheld pre-censorship for films, holding that the motion picture stirs emotion more deeply than the printed word and can therefore be treated as a class apart, provided the standards are not vague and are within Article 19(2).
4. But the order is justified only if it is properly made. It must be based on the film as a whole and not on isolated scenes; it must apply the standard of a reasonable, strong-minded person and not the weakest member of the audience; and the apprehended effect must be, in the words of S. Rangarajan v. P. Jagjivan Ram (1989), like "a spark in a powder keg" and not remote or fanciful. On these facts, whether the specific cuts survive depends on the reasons the Board gave.

2. Equality before the law. Every man, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. There is no separate administrative law and no separate administrative court, as there is in France.
3. The constitution is the result of the ordinary law of the land. In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases brought by private individuals, and are not the source of, but the consequence of, individual rights.

3. The criticism. Each proposition is now qualified:

1. The first would abolish the modern State. Discretion is unavoidable in a welfare administration; the answer is not to forbid it but to structure, confine and check it. Dicey confused arbitrary power with discretionary power.

5. The rule of law in the Indian Constitution. It is not written in terms, but it runs through the text: Article 14 (equality before the law and equal protection of the laws), Article 21 (no deprivation of life or personal liberty except according to procedure established by law), Article 13 (laws inconsistent with fundamental rights are void), Article 20 (protection against ex post facto laws and double jeopardy), Articles 32 and 226 (enforceable remedies), Article 300 (the State may sue and be sued), and the independence of the judiciary.

6. The landmark Indian judgments.

1. Kesavananda Bharati v. State of Kerala (1973): the rule of law is part of the basic structure of the Constitution and cannot be destroyed even by a constitutional amendment.
2. Indira Nehru Gandhi v. Raj Narain (1975): clause 4 of the 39th Amendment placed the Prime Minister's election beyond the reach of any court. It was struck down. The Court held that the rule of law is a basic feature; a law that decides a particular dispute and withdraws it from adjudication offends both the rule of law and the separation of powers.

For full marks, cover: what natural justice is and why it has no fixed content; the two classical rules, each with its sub-rules and cases; the third modern rule of reasoned decisions; the exceptions; and the effect of a breach.

1. Meaning. Natural justice is the body of procedural fairness that the common law requires of anyone who decides a matter affecting another's rights or legitimate interests. It is not a code; it is, in Lord Reid's phrase, what a fair-minded person would consider fair in the circumstances. Its Indian foundation is the fairness read into Articles 14 and 21.

2. The first rule: nemo judex in causa sua, no man shall be a judge in his own cause.

The test is not actual bias but a real likelihood of bias, because justice must not only be done but must manifestly be seen to be done. The forms of bias are:

3. The second rule: audi alteram partem, hear the other side.

Its components are:

1. Notice, which must be adequate, must state the charge and the proposed action, and must give reasonable time. A defective notice vitiates the whole proceeding.
2. Opportunity to be heard, which ordinarily means the opportunity to make a representation. An oral hearing is not always necessary, though it is required where the facts are complex or credibility is in issue.
3. Disclosure of the material relied on. Dhakeswari Cotton Mills v. Commissioner of Income Tax (1955): an assessment based on material not disclosed to the assessee was set aside.
4. Evidence and cross-examination, where the case turns on the testimony of witnesses.
5. He who decides must hear. Gullapalli Nageswara Rao again: a decision taken by one officer on a hearing conducted by another is bad.
6. No evidence behind the back of the party, and no fresh material at the stage of decision.

5. Exceptions. Natural justice is excluded or curtailed in cases of:

1. statutory exclusion, express or by necessary implication;
2. emergency, where immediate action is required, as in the demolition of a dangerous building or the seizure of adulterated food, subject to a post-decisional hearing;
3. impracticability, as in Bihar School Examination Board v. Subhas Chandra Sinha (1970), where a whole examination centre's results were cancelled for mass copying and individual notices were held unnecessary;
4. legislative action, including subordinate legislation of a general character;
5. confidentiality and the security of the State;
6. "useless formality", where a hearing could make no difference, a very narrow exception the courts apply with reluctance;
7. contractual or purely administrative matters not affecting rights; and
8. interim preventive action, such as a suspension pending inquiry.

For full marks, cover: the definition and forms; the reasons for its growth; the constitutional problem of delegation; the test laid down in the Delhi Laws Act case; a list of what may be delegated and what may not, each with a case; and the controls.

1. Meaning. Delegated legislation is law made by an authority other than the legislature, under a power conferred by the legislature. Salmond defines it as legislation which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority.

It takes the form of rules, regulations, bye-laws, orders, notifications, schemes and directions.

2. Reasons for its growth.

1. Pressure on parliamentary time: the legislature cannot enact the volume of detailed law a modern State needs;

The test is therefore whether the parent Act lays down a policy and a standard which guides the delegate.

4. Permissible delegation. The legislature may validly delegate the power to:

1. commence an Act, or to extend it to a specified area or class (conditional legislation);
2. supply details, prescribe forms, fees, procedure and conditions;
3. make exemptions and grant exceptions, where the standard is laid down;
4. suspend the operation of a provision in stated circumstances;
5. apply an existing law with modifications, provided the modifications do not alter its essential policy, as held in Rajnarain Singh v. Chairman, Patna Administration Committee (1954);
6. fix rates and prices within limits fixed by the Act;
7. remove difficulties in bringing an Act into operation, the so-called Henry VIII clause, which is valid only in a narrow form.

5. Impermissible delegation. The legislature cannot delegate:

Hamdard Dawakhana v. Union of India (1960) is the standard illustration of impermissible delegation: Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act empowered the executive to add to a list of diseases "any other disease which may be specified in the rules", with no policy or standard to guide the addition. That was struck down as excessive delegation.

6. The controls. Delegated legislation is controlled in three ways:

1. Parliamentary control: policy fixed in the parent Act, laying before the House in one of its three forms, and scrutiny by the Committee on Subordinate Legislation;
2. Procedural control: prior publication, consultation of affected interests, and publication in the Official Gazette. Harla v. State of Rajasthan (1951) held that a law cannot be enforced against a person who had no means of knowing it, so publication is essential;
3. Judicial control, on the grounds of substantive ultra vires (the parent Act does not authorise the rule, or the parent Act is itself unconstitutional, or the rule is unconstitutional, or it is unreasonable or mala fide) and procedural ultra vires (a mandatory procedure such as consultation or publication was not followed).

The words "in the like cases" carry the liability back through a chain: Article 300 to Section 176 of the Government of India Act, 1935, to Section 32 of the Government of India Act, 1915, to Section 65 of the Government of India Act, 1858, which fixed the liability of the Secretary of State for India by reference to the liability of the East India Company. The result is that the extent of the Government's liability today is still governed by the law as it stood in 1858, unless Parliament changes it, and Parliament never has.

2. The sovereign and non-sovereign distinction. Because the East India Company had a dual character, trading and governing, the courts drew a line: the State is liable for acts done in the exercise of its non-sovereign functions, that is, functions that a private person could also perform, and not for acts done in the exercise of its sovereign functions, being those which only a State can perform, such as defence, the maintenance of law and order, the administration of justice and the collection of tax.

3. The landmark cases.

3. State of Rajasthan v. Mst. Vidyawati (AIR 1962 SC 933). A jeep owned by the State and maintained for the official use of the Collector of Udaipur was being brought back from the workshop after repairs; the driver knocked down a pedestrian who died. The State was held liable. The Court held that in a welfare State carrying on many activities like a private citizen, there is no reason to hold the State immune, and that the old feudal maxim "the King can do no wrong" has no place in a republic. Driving a car back from the workshop is not a sovereign function.
4. Kasturilal Ralia Ram Jain v. State of Uttar Pradesh (AIR 1965 SC 1039). Gold seized by the police from a partner of the firm was misappropriated by the head constable, who fled to Pakistan. The Supreme Court held the State not liable, because the seizure was made in the exercise of a statutory power of arrest and seizure, which is a sovereign function. Gajendragadkar CJ nonetheless recorded his dissatisfaction with the state of the law and urged legislation, which never came.

4. The constitutional tort. Alongside the ordinary suit, the Supreme Court and the High Courts award compensation in writ proceedings for the violation of fundamental rights. Rudal Shah v. State of Bihar (1983): a man kept in jail for fourteen years after his acquittal was awarded compensation under Article 32. Nilabati Behera v. State of Orissa (1993) made the basis explicit: the remedy is a public law remedy based on strict liability for the contravention of fundamental rights, distinct from and in addition to the private law remedy in tort, and sovereign immunity is no defence to it. D.K. Basu v. State of West Bengal (1997) laid down the custodial safeguards and confirmed the award of compensation.

5. The position today. The State is liable:

1. for all acts done in the non-sovereign or commercial sphere;
2. for acts done under statutory powers where the act is beyond the power or negligent, following Nagendra Rao;
3. for the violation of fundamental rights, in a writ petition, without regard to sovereign immunity;

and it remains immune only for the narrow class of inalienable sovereign functions and for acts of State properly so called.

2. Article 226, by every High Court, for the enforcement of fundamental rights and for any other purpose, that is, for the enforcement of ordinary legal rights as well. The High Court's writ jurisdiction is therefore wider than the Supreme Court's. It also extends, under Article 226(2), to an authority outside the High Court's territory if the cause of action arises within it.

2. The five writs.

(ii) Mandamus, "we command". It is a command to a public authority to perform a public duty which it has refused or failed to perform. Conditions: the applicant must have a legal right; there must be a public duty, statutory or otherwise, and not a merely discretionary or contractual one; there must have been a demand and a refusal; and there must be no other equally efficacious remedy. It does not lie against a private individual, against the President or a Governor (Article 361), to enforce a contract of personal service, or to compel the legislature to make a law. It can compel an authority to exercise a discretion, though not to exercise it in a particular way. Praga Tools Corporation v. C.V. Imanual (1969) settled that mandamus lies against a body performing a public duty even if it is a company. Comptroller and Auditor General v. K.S. Jagannathan (1986) held that the High Court under Article 226 can go beyond the strict limits of the English writ and mould the relief.

(iii) Prohibition. A writ issued by a superior court to an inferior court or tribunal forbidding it to continue proceedings in excess of its jurisdiction or in violation of natural justice. It is preventive: it issues while the proceeding is pending. It lies only against judicial and quasi-judicial bodies, not against a purely administrative or legislative act. East India Commercial Co. v. Collector of Customs (1962) is the standard authority.

3. The importance of writs. They are the machinery through which the guarantee of rights becomes a remedy. They are quick, because they are decided on affidavits without a trial; they are discretionary, so the court can shape the relief to the case; they reach every kind of public power, whether the authority is a Minister, a tribunal, a university or a corporation which is "the State" under Article 12; and under Article 32 the remedy itself is a fundamental right, so it cannot be legislated away. The growth of public interest litigation rests on the relaxation of locus standi in writ jurisdiction, established in S.P. Gupta v. Union of India (1981).

4. Limitations. The court will refuse a writ where there is an adequate alternative remedy; where the petitioner is guilty of laches or unexplained delay; where the petition raises disputed questions of fact requiring evidence; where the petitioner has suppressed material facts or comes with unclean hands; where the matter is one of policy; where the petition has become infructuous; and where res judicata applies, a writ petition finally decided on merits barring a second petition on the same cause.

3. Judicial control: the two heads. The courts do not ask whether the decision was the best one. They ask whether the discretion was exercised at all, and whether it was exercised lawfully.

A. Failure to exercise discretion. The authority has the power but has not brought its own mind to bear:

1. Acting under dictation. The authority takes orders from a superior or another body instead of deciding itself. Commissioner of Police, Bombay v. Gordhandas Bhanji (1952): a cinema licence was cancelled by the Commissioner on the direction of the Government; held bad, because the discretion was the Commissioner's to exercise. Anirudhsinhji Jadeja v. State of Gujarat (1995) is to the same effect on the invocation of TADA on instructions.
2. Self-imposed fetters, or acting on a rigid rule. An authority given a discretion must not convert it into an inflexible rule and refuse to look at the individual case. It may adopt a general policy, but it must always be willing to listen to an applicant with something new to say (R. v. Port of London Authority, ex parte Kynoch, 1919).
3. Non-application of mind, including mechanical repetition of the statutory language and passing an order without considering the material.

3. Irrelevant considerations, and failure to consider relevant ones. Barium Chemicals Ltd. v. Company Law Board (1967): an order for investigation was set aside because the circumstances relied on had no rational connection with the statutory grounds; the Court held that even where the statute says "in the opinion of", the opinion must rest on materials relevant to the grounds.
4. Colourable exercise of power, where the authority does indirectly what it cannot do directly.
5. Unreasonableness, on the Wednesbury standard from Associated Provincial Picture Houses v. Wednesbury Corporation (1948): a decision so unreasonable that no reasonable authority could ever have come to it. In India unreasonableness is also arbitrariness and so a breach of Article 14, following E.P. Royappa v. State of Tamil Nadu (1974) and Maneka Gandhi (1978).
6. Non-observance of natural justice, and failure to pass a speaking order.
7. Exceeding jurisdiction, and error of law.

3. act on its own satisfaction, but that satisfaction must be based on relevant material, and the existence of the material is justiciable even where the sufficiency is not;
4. change policy, subject to the doctrines of legitimate expectation and promissory estoppel. In Motilal Padampat Sugar Mills v. State of Uttar Pradesh (1979) the State was held bound by a promise of a tax exemption on which the company had acted, and the Court held that the doctrine of promissory estoppel is available against the Government in the exercise of its governmental and public functions, though it will not be applied to compel an act contrary to law.

6. The limits of review. The court is concerned with legality, rationality and procedural propriety and not with the merits. It will not sit in appeal on questions of policy, of expert or technical judgment, of the allocation of resources, or of the sufficiency of the material on which a subjective satisfaction rests.