BLS LLB 5 Years Sem 7 Administrative Law 2023-24 Question Paper with Solutions

A corporation is an artificial person created by law, having perpetual succession and a common seal, distinct from the members who compose it, and capable of holding property, contracting, and suing and being sued in its own name.

The species that concerns administrative law is the public corporation: a body created by a special statute, or registered under the Companies Act with a controlling Government shareholding, to run an undertaking on behalf of the State.

An irrelevant consideration is a matter which the statute conferring a discretion does not permit the authority to take into account, and upon which the authority nevertheless acts.

Acting on irrelevant considerations, or failing to take relevant ones into account, is a recognised head of abuse of discretion, and the resulting order is liable to be quashed even where the authority was honest.

A post-decisional hearing is a hearing given after the order has been made, in cases where a prior hearing was not possible because the situation required immediate action. The order is provisional until the hearing is held and the authority has genuinely reconsidered.

Conditional legislation is legislation which is complete in itself but whose operation depends upon a condition, the fulfilment of which the legislature leaves the executive to determine. The legislature makes the law; the executive decides only when, where or to whom it shall apply.

An injunction is an equitable order of a court directing a person to do, or to refrain from doing, a particular act. It is governed by Sections 36 to 42 of the Specific Relief Act, 1963, and, for temporary injunctions, by Order 39 Rules 1 and 2 of the Code of Civil Procedure.

It is temporary or perpetual by duration, and prohibitory or mandatory by form.

1. Meaning. An Ombudsman is an independent officer, appointed by and answerable to the legislature, who investigates complaints of maladministration against public authorities, reports his findings and recommends redress. The word is Swedish for a representative or agent.

2. Origin and spread. Created in Sweden in 1809, when the Riksdag appointed the Justitieombudsman to supervise the observance of the law by judges and officials. Finland 1919, Denmark 1955, Norway 1962, New Zealand 1962, the United Kingdom's Parliamentary Commissioner for Administration in 1967, and thereafter most of the Commonwealth.

3. Characteristics. Independence of the executive, with appointment by and reporting to the legislature and a fixed tenure; jurisdiction over maladministration, meaning bias, neglect, delay, inattention, incompetence, arbitrariness and rudeness, and not merely illegality; easy and cheap access, on a simple complaint without fee, formality or advocate, and often suo motu; wide powers of investigation, including access to files and the power to summon officials; and recommendatory conclusions enforced by report and publicity rather than by decree.

2. Maharashtra acted first, with the Maharashtra Lokayukta and Upa-Lokayuktas Act, 1971, the first such statute in India. The Lokayukta investigates a grievance (injustice or hardship from maladministration) or an allegation (abuse of position, corruption or improper motive), has the powers of a civil court for summoning and discovery, and reports and recommends to the competent authority, with a special report and an annual report laid before the State legislature.
3. At the Centre, after eight failed Bills between 1968 and 2011 and the movement of 2011, the Lokpal and Lokayuktas Act, 2013 was enacted. It provides for a chairperson and up to eight members, at least half judicial and at least half from the Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women; a selection committee of the Prime Minister, the Speaker, the Leader of the Opposition, the Chief Justice of India or his nominee, and an eminent jurist; jurisdiction over the Prime Minister with stated exclusions, Ministers, members of Parliament and all central Government servants; an Inquiry Wing (Section 11) and a Prosecution Wing (Section 12); a seven-year limitation under Section 53; and a duty on every State to establish a Lokayukta within one year.

1. The doctrine. Montesquieu, L'Esprit des Lois (1748): the legislative, executive and judicial powers should be vested in three separate organs; no organ should exercise the functions of another; and no person should be a member of more than one organ. The purpose is liberty, because concentrated power is abused.

2. Comparative position. The United States applies it strictly by constitutional text, tempered by checks and balances. England has never applied it: the Cabinet sits in Parliament, and the House of Lords was the final court of appeal until 2009. India occupies a middle position.

3. India: what reflects the doctrine.

1. Article 50: the State shall take steps to separate the judiciary from the executive in the public services, a Directive Principle;
2. Articles 53 and 154: executive power vested in the President and the Governors;
3. Articles 121 and 211: no discussion in the legislatures of a Judge's conduct in the discharge of his duties;

5. The cases. Ram Jawaya Kapur v. State of Punjab (1955): the doctrine is not recognised "in its absolute rigidity", but the functions have been "sufficiently differentiated", so no organ may assume a function essentially belonging to another. Indira Nehru Gandhi v. Raj Narain (1975): clause 4 of the 39th Amendment, deciding the Prime Minister's election dispute by amendment, was struck down as a usurpation of the judicial function. Kesavananda Bharati (1973): part of the basic structure. Asif Hameed v. State of Jammu and Kashmir (1989): each organ must stay within its sphere and courts must not enter the field of policy. Supreme Court Advocates-on-Record Association v. Union of India (2015): the 99th Amendment creating the NJAC struck down.

6. Conclusion. In India separation of powers works as a principle of interpretation and a basic feature, not as a textual rule. What is forbidden is not overlap but the assumption by one organ of the essential function of another.

1. Daryao v. State of Uttar Pradesh (1961): a petition under Article 226 heard and finally decided on the merits bars a subsequent petition under Article 32 on the same facts between the same parties, the rule resting on public policy and not on the technicality of the Code.
2. A dismissal in limine or on the ground of laches or of an alternative remedy, by a non-speaking order, does not bar a fresh petition.
3. Constructive res judicata applies: Devilal Modi v. Sales Tax Officer (1965); Forward Construction Co. v. Prabhat Mandal (1986).
4. Withdrawal without liberty to file afresh bars a second petition: Sarguja Transport Service v. State Transport Appellate Tribunal (1987).
5. Habeas corpus is treated differently: a fresh petition on fresh grounds lies, liberty being a continuing cause: Ghulam Sarwar v. Union of India (1967).
6. It does not apply to an interlocutory order, nor where the earlier decision is on a pure question of law decided per incuriam.

1. Meaning. The rule of law means that the State and every officer of it is subject to law; that power may be exercised only under and according to law; and that no person is above the law. Its ancestry runs from Bracton and Coke CJ in Dr. Bonham's Case (1610) to Dicey.

2. Dicey's three propositions (1885):

1. Supremacy of law, the absence of arbitrary power: no man may be punished except for a distinct breach of law established before the ordinary courts;
2. Equality before the law: every person, whatever his rank, is subject to the ordinary law and to the ordinary tribunals, so there is no separate administrative law and no administrative court;
3. The constitution is the result of the ordinary law: in England the general principles of the constitution are the outcome of judicial decisions in particular cases.

3. The criticism.

4. In India. The doctrine is embodied in the Preamble, Article 13 (inconsistent laws void), Article 14 (equality before the law, and after E.P. Royappa (1974) a guarantee against arbitrariness), Article 19 (restrictions must be reasonable and by law), Article 21 (procedure established by law, read after Maneka Gandhi as right, just and fair), Article 265 and Article 300A (no tax and no deprivation of property except by authority of law), Articles 32 and 226 (enforceable remedies), Article 300 (the State may be sued), and the independence of the judiciary.

5. The Indian cases. Kesavananda Bharati (1973): the rule of law is part of the basic structure. Indira Nehru Gandhi v. Raj Narain (1975): the 39th Amendment struck down. ADM Jabalpur (1976): the low-water mark, where the majority denied habeas corpus during the Emergency; Khanna J.'s dissent is now the law, the majority having been overruled in K.S. Puttaswamy (2017). Maneka Gandhi (1978): the substantive rule of law. Som Raj v. State of Haryana (1990): the absence of arbitrary power is the first postulate of the rule of law.

2. Departmental bias is not, by itself, disqualifying. If it were, no licensing, no assessment, no disciplinary proceeding and no externment could stand, because administrative adjudication is built on the premise that the department decides. The test is a real likelihood of bias, and a general departmental interest does not meet it. What does meet it is the officer having a personal or pecuniary interest, or having been himself the complainant, the investigator or a witness in the particular case.
3. Statutory entrustment excludes the objection so far as it goes. Section 56 of the Bombay Police Act, 1951 (Section 57 as originally numbered) empowers the Commissioner of Police, the District Magistrate or an authorised Deputy Commissioner to direct the removal of a person whose movements or acts are causing or calculated to cause alarm, danger or harm, or who is engaged or about to engage in offences involving force or violence, and where witnesses are unwilling to come forward for fear of their safety. The legislature has chosen a police authority in full knowledge of what that means; natural justice cannot be used to defeat the express words of a statute.

(b) When same department can act as prosecutor and judge?

1. Where the statute so provides, and the provision is constitutionally valid. The legislature may exclude or modify natural justice, and where it entrusts a decision to a departmental officer the objection of departmental bias is excluded to that extent.
2. Where the roles are separated inside the department, so that the investigating officer, the inquiry officer, the presenting officer and the disciplinary authority are different persons. This is the standard solution in departmental disciplinary proceedings.
3. Where the deciding officer has no personal interest and was not himself the complainant, the investigator or a witness. A.K. Kraipak v. Union of India (1970) is the boundary: general departmental interest is tolerated, a personal stake is not.
4. Under the doctrine of necessity, where the authority objected to is the only one competent to act and the alternative is that no decision can be made at all: Charan Lal Sahu v. Union of India (1990).
5. Where an independent appeal and judicial review remain, which in practice is what reconciles departmental adjudication with fairness. Here Section 60 provides an appeal to the State Government and Article 226 remains available.

1. The right and its limits. Article 19(1)(a) guarantees to every citizen the freedom of speech and expression. Article 19(2) permits the State to impose reasonable restrictions by law in 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 in relation to contempt of court, defamation or incitement to an offence.
2. A restriction must satisfy three tests. It must be imposed by a law and not by executive fiat; it must fall within one of the enumerated grounds; and it must be reasonable, which imports both substantive and procedural reasonableness and, where fundamental rights are affected, proportionality.
3. The "public order" ground is the one relied on here, and it is narrow. Ram Manohar Lohia v. State of Bihar (1966) drew the three concentric circles: law and order is the widest, public order narrower, and security of the State narrowest; an act may disturb law and order without disturbing public order. A restriction under Article 19(2) needs public order, not merely an apprehension of inconvenience.

1. an urgent case of nuisance or apprehended danger;
2. the Magistrate's satisfaction, on material facts, that immediate prevention or speedy remedy is desirable; and
3. that the direction is likely to prevent obstruction, annoyance or injury to any person lawfully employed; danger to human life, health or safety; or a disturbance of the public tranquillity, a riot or an affray.

The judicial glosses are: the danger must be imminent, not remote; the order must be proportionate in duration, area and content; the Magistrate must record the material facts in writing; the order must be published; it expires in two months, extendable by the State Government up to six months in specified cases; and the aggrieved person may apply to the Magistrate under sub-section (5) to rescind or alter it and is entitled to be heard, the Magistrate recording reasons if he refuses.

The constitutional authorities are Babulal Parate v. State of Maharashtra (1961), which upheld the section; Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970), a seven-judge Bench, which upheld it while insisting on a genuine emergency and judicial scrutiny; and Anuradha Bhasin (2020).

2. The college is bound by it. A college affiliated to a university and discharging a public function is amenable to Article 226 (Andi Mukta Sadguru Trust v. V.R. Rudani, 1989), and where it is "the State" under Article 12 it is bound by Article 14 as well.
3. What the rule requires in a disciplinary matter of this kind, following Board of High School and Intermediate Education, U.P. v. Kumari Chittra Srivastava (1970) and the school and college cases generally: a written statement of the allegation; an opportunity to explain; and, where the allegation is serious and rests on the testimony of the complainants, an opportunity to meet that testimony, though the manner of doing so in a case of sexual harassment must protect the complainant.
4. The defence of impracticability. Natural justice yields where a hearing is impossible or impracticable. Bihar School Examination Board v. Subhas Chandra Sinha (1970): where mass copying was found at an entire examination centre and the Board cancelled the whole examination, the Supreme Court held that individual notices to every candidate were not required, since the cancellation was not based on individual misconduct and a hearing of each was impracticable.

(b) In what situation the involved principle here can be exempted?

Audi alteram partem is excluded or curtailed in the following situations:

1. Express statutory exclusion, or exclusion by necessary implication from the scheme of the Act;
2. Emergency, where immediate action is required, as in the demolition of a dangerous structure, the seizure of adulterated food or the suspension of a licence to prevent imminent harm, subject to a post-decisional hearing: Maneka Gandhi (1978), Swadeshi Cotton Mills (1981);
3. Impracticability, as in Bihar School Examination Board v. Subhas Chandra Sinha (1970), and as is claimed here;
4. Legislative action, including subordinate legislation of a general character, since a rule affects the public at large and not an individual;
5. Confidentiality and the security of the State, where disclosure would defeat the purpose of the power or endanger a source;

(a) What can be done in such appointment? Is there any remedy available?

Yes. The appointment can be challenged and the appointee ousted, by a writ of quo warranto under Article 226.

1. The nature of the defect. Where a post carries prescribed qualifications, fixed by a statute, by rules made under Article 309, or by the recruitment rules, an appointment of a person who does not possess them is made without authority of law. It is not merely irregular; it is void, because the appointing authority had no power to appoint such a person at all.
2. The remedy is quo warranto, the writ that calls on the holder of a public office to show by what authority he holds it, and removes him if the answer is unsatisfactory.

9. Other remedies alongside it. A writ of certiorari to quash the order of appointment; a challenge under Articles 14 and 16, since an appointment made in disregard of the prescribed qualification denies equality of opportunity in public employment to those who were qualified and did apply; and, in a proper case, a departmental or vigilance complaint against the officers who made it.
10. What the court will not do. It will not appoint anyone in his place, and it will not itself decide who ought to have been appointed. It removes the person without title and leaves the authority to fill the post according to law.

(b) Explain the remedy available in details.

Quo warranto in detail:

1. Meaning. "By what authority". A writ requiring the holder of a public office to establish his title to it.
2. Object. To protect the public from the exercise of authority by a usurper, and to prevent an unqualified person from continuing in a public office. It is a public remedy, not a vindication of a private right.

7. The forum. The Supreme Court under Article 32 only if a fundamental right is involved, and the High Court under Article 226, which is the ordinary forum because Article 226 extends to "any other purpose".
8. Alternative and additional remedies. In a service matter falling under the Administrative Tribunals Act, 1985, the Central or State Administrative Tribunal is the court of first instance, subject to review by a Division Bench of the High Court under L. Chandra Kumar v. Union of India (1997).

For full marks, cover: three definitions and the criticism of each; the nature of the subject in five features; the reasons for its growth; the scope under ten heads; the distinction from constitutional law; and the sources.

1. Definitions.

1. Ivor Jennings: "Administrative law is the law relating to the administration. It determines the organisation, powers and duties of administrative authorities." Criticism: too wide, since it takes in most of constitutional law relating to the executive, and it omits control, which is the point of the subject.
2. K.C. Davis: "the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action." Criticism: it concentrates on adjudication and neglects rule-making, and it is framed for a system with a codified Administrative Procedure Act.

2. delegated legislation and the three systems of control over it;
3. administrative adjudication and tribunals under Articles 323A and 323B;
4. the principles of natural justice and the duty to act fairly;
5. administrative discretion, the grounds on which its failure and its abuse are reviewed;
6. judicial review and the writs under Articles 32 and 226, with the ordinary remedies of suit, injunction, declaration and damages;
7. the liability of the State in tort under Article 300 and in contract under Article 299, and the doctrines of promissory estoppel and legitimate expectation;
8. the civil services under Articles 308 to 323, the doctrine of pleasure and Article 311;
9. public undertakings and their accountability, including the reach of Article 12;
10. institutional controls: Lokpal and Lokayuktas, the Central Vigilance Commission, the Comptroller and Auditor General, the Central Bureau of Investigation, and the Right to Information Act, 2005.

5. Administrative law and constitutional law.

For full marks, cover: the meaning and constitutional basis of tribunals; their characteristics; the reasons for their growth; the differences from a court, in a table; the tests the courts use to identify a tribunal; why the distinction matters; and the case law on their control.

1. Meaning. A tribunal is a statutory adjudicating body outside the ordinary court hierarchy, which decides disputes between the citizen and the administration, or in a specialised field, by a procedure that is judicial in substance but simpler and more flexible than that of the courts.

4. Reasons for their growth. The volume of disputes created by a welfare State; the delay and cost of ordinary litigation; the need for technical expertise; the value of flexible procedure; and the need to apply policy alongside law.

5. The differences.

7. The tests used to identify a tribunal. In Bharat Bank Ltd. v. Employees of Bharat Bank (1950) and Durga Shankar Mehta v. Raghuraj Singh (1954) the Supreme Court treated the power to decide a lis judicially, with a duty to act judicially, as the mark of a "tribunal" for the purposes of Article 136. Associated Cement Companies v. P.N. Sharma (1965) put it best: the essential test is whether the State has clothed the body with part of its own inherent judicial power. A body that merely advises, or that decides on policy without a lis, is neither court nor tribunal.

8. Why the distinction matters. It determines whether Article 136 special leave lies; whether certiorari and prohibition lie; whether Article 227 superintendence applies; whether the Evidence Act binds; and whether the decisions can be cited as precedent.

For full marks, cover: why control is necessary; parliamentary control in its three stages; procedural control with the publication cases; judicial control under substantive and procedural ultra vires with a case for each ground; and an assessment of which control actually works.

1. Why control is necessary. Delegated legislation moves law-making from an elected and debating body to officials. The rules are made without debate, often without consultation, in very large volume, and they bind the citizen exactly as an Act does. The objection is not to the existence of the power but to the absence of scrutiny, and the three systems of control are the answer to that objection.

2. Parliamentary control.

(a) At the stage of delegation. The parent Act must lay down the policy and standard; the essential legislative function cannot be delegated: In re Delhi Laws Act, 1912 (1951); Hamdard Dawakhana v. Union of India (1960), where a power to add "any other disease" to a statutory list, with no standard, was struck down. Parliament also fixes the authority, the subject, the duration and the conditions of the power.

1. Prior publication of the draft and consideration of objections, where the parent Act requires it; Section 23 of the General Clauses Act, 1897 prescribes the standard procedure where rules are to be made "after previous publication".
2. Consultation of an affected interest or a named body. Whether the requirement is mandatory or directory depends on the object of the provision and the consequences of non-compliance: Raza Buland Sugar Co. v. Municipal Board, Rampur (1965); Banwarilal Agarwalla v. State of Bihar (1961).
3. Publication in the Official Gazette, generally mandatory. Harla v. State of Rajasthan (1951): an unpublished resolution of the Council of Ministers of the former Jaipur State could not be enforced, since it is against natural justice to punish a man under a law he had no means of knowing. State of Maharashtra v. Mayer Hans George (1965) on the mode and sufficiency of publication.

4. Judicial control. The effective control, exercised through the doctrine of ultra vires.

(a) Substantive ultra vires.

1. the parent Act is unconstitutional, so everything under it falls;

(b) Procedural ultra vires. Failure to comply with a mandatory procedural requirement of the parent Act: prior publication, consultation, or Gazette publication.

(c) The presumption of validity. Subordinate legislation is presumed valid, the burden lies on the challenger, and the court will not strike a rule down merely because it thinks another rule would be better. It is not the judge of policy.

5. Which control works. Parliamentary control is weak: thousands of instruments are laid each year, the negative resolution procedure requires a member to move a motion in a crowded House, and the committees can only report. Procedural control operates only where the parent Act provides for it. Judicial control does the real work, and within it the ground that succeeds most often is the plainest: that the rule contradicts or exceeds the parent Act.

3. Promissory estoppel, the branch that matters here. Where a party makes a clear and unequivocal promise intended to create a legal relation, knowing that it will be acted on, and the promisee alters his position on the faith of it, the promisor is bound by the promise although there is no consideration and no concluded contract. Its origin is Central London Property Trust v. High Trees House (1947).

4. Against the Government.

1. Union of India v. Anglo Afghan Agencies (1968): the Government announced an export promotion scheme under which exporters of woollen goods would receive import entitlements; the exporter acted on it; the Government gave less. Held bound.

3. It yields to an overriding public interest, which the Government must establish on material and not merely assert.
4. There is no estoppel where the promise was made by an officer without authority, since the Government cannot be bound by a representation beyond the officer's power.

6. Its relation to legitimate expectation. Estoppel requires that the promisee has altered his position; legitimate expectation does not, and asks whether it was fair to defeat the expectation. Estoppel can secure the benefit itself; legitimate expectation ordinarily secures only a hearing before the benefit is withdrawn.

(b) Factors for the growth of the Administrative Law

1. The change from the police State to the welfare State. The nineteenth-century State did three things: defence, law and order, and justice. The modern Indian State, under the Directive Principles, plans, licenses, allots, taxes, subsidises, employs, educates and provides. Every one of those functions is a power over the citizen, and each needs a law to control it.

7. The scope for experiment. A new social scheme cannot be got right at once; rule-making lets the administration try, observe and adjust, which an Act cannot do.
8. The growth of the concept of social justice and of enforceable rights, particularly after Maneka Gandhi (1978), the expansion of Article 21, and the arrival of public interest litigation in S.P. Gupta v. Union of India (1981), which relaxed locus standi and made administrative action challengeable by persons other than those directly affected.