BLS LLB 5 Years Sem 7 Administrative Law 2022-23 - ATKT Question Paper with Solutions

Subject-matter bias, also called official bias, arises where the deciding authority has a general interest in the subject matter of the dispute, as distinct from a personal or a financial interest in the parties, so that it cannot bring an open mind to the decision.

It is the third of the recognised forms of bias, the others being pecuniary, personal and departmental or institutional bias.

Article 299(1) of the Constitution lays down three essentials:

1. the contract must be expressed to be made by the President or the Governor;
2. it must be executed on behalf of the President or the Governor; and
3. it must be executed by a person authorised by the President or the Governor.

In addition the ordinary requirements of a valid contract under Section 10 of the Indian Contract Act, 1872 must be satisfied, and the award must not be arbitrary, since Article 14 applies.

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 remains provisional until the hearing has been held and the authority has genuinely reconsidered.

Conditional legislation, also called contingent legislation, is legislation which is complete in itself but whose operation is made to depend upon a condition, the fulfilment of which the legislature leaves to the executive to determine.

The legislature makes the law; the executive only decides 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, an act. Its kinds are:

1. Temporary (interlocutory), granted during the pendency of a suit and lasting until a specified time or the further order of the court, under Order 39 Rules 1 and 2 of the Code of Civil Procedure; and perpetual, granted by the decree at the hearing, under Section 38 of the Specific Relief Act, 1963;
2. Prohibitory, restraining the doing of a wrongful act; and mandatory, compelling the performance of an act or the undoing of what has been wrongfully done, under Section 39.

1. What each is. A court is a permanent organ of the State, part of the ordinary judicial hierarchy, which exercises the judicial power of the State generally and decides disputes according to law. A tribunal is a statutory body created for a specific field, which decides disputes judicially in substance but stands outside the ordinary hierarchy.

2. The differences.

4. The tests the courts use. The classic formulation is that a tribunal has the "trappings of a court" but is not a court. 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, on evidence, with a duty to act judicially, as the mark of a tribunal for the purposes of Article 136. In Associated Cement Companies v. P.N. Sharma (1965) the Court held that the essential test is whether the State has clothed the body with part of its own inherent judicial power.

5. Why the distinction matters. It decides whether Article 136 special leave lies; whether certiorari and prohibition lie; whether Article 227 superintendence applies; whether the Evidence Act applies; and whether the body's decisions can be treated as precedent. After L. Chandra Kumar v. Union of India (1997) the position is settled that a tribunal, however court-like, is subject to review by a Division Bench of the High Court and can never displace it.

4. Its application in writ jurisdiction. Section 11 does not in terms apply to writ petitions, but the general principle does.

1. Daryao v. State of Uttar Pradesh (1961) is the leading case. The Supreme Court held that where a writ petition under Article 226 has been heard and finally decided on the merits, a subsequent petition under Article 32 on the same facts between the same parties is barred by res judicata, because the rule is founded on public policy and not on a technicality of the Code.
2. But a petition dismissed in limine or on the ground of laches or of an alternative remedy, by a non-speaking order, does not operate as res judicata, because there has been no adjudication on the merits.
3. A petition withdrawn without liberty to file afresh bars a second petition on the same cause: Sarguja Transport Service v. State Transport Appellate Tribunal (1987).
4. Constructive res judicata applies to writ petitions as well: Devilal Modi v. Sales Tax Officer (1965), where a second petition raising a ground that could have been taken in the first was barred, and Forward Construction Co. v. Prabhat Mandal (1986).

1. The 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 judged from the standpoint of a reasonable person, because justice must not only be done but must manifestly and undoubtedly be seen to be done.

2. Pecuniary bias. Any financial interest, however small, in the subject matter disqualifies, and no inquiry is made into whether it in fact influenced the decision.

1. Dr. Bonham's Case (1610): the College of Physicians fined Dr. Bonham for practising without its licence, and by statute retained half the fine. Coke CJ held that the College could not be judge in its own cause.
2. Dimes v. Grand Junction Canal (1852): Lord Cottenham LC held shares in the company in whose favour he decreed; the decree was set aside by the House of Lords though nobody suggested he had been influenced.
3. Jeejeebhoy v. Assistant Collector, Thana (1965): Gajendragadkar CJ reconstituted the Bench when it was found that a judge was a member of the co-operative society that had acquired the land.

5. Departmental or institutional bias. Where the same department prosecutes and adjudicates, or where the whole institution has an interest. It is inherent in administrative adjudication and is therefore tolerated unless the statutory scheme is such that a fair decision is impossible, or unless there is a further personal interest.

6. Bias as to pre-judgment of the issue. Where the authority has made up its mind before the hearing, so that the hearing is a formality, or has committed itself publicly to a conclusion.

7. Policy bias, and the doctrine of necessity. A settled policy is not bias, because an administrator is expected to have one. And under the doctrine of necessity a person otherwise disqualified may act where he is the only authority competent and the alternative is that no decision can be made at all: Charan Lal Sahu v. Union of India (1990), and Ashok Kumar Yadav v. State of Haryana (1985), where a member of a Public Service Commission whose relative was a candidate was required to withdraw only from that candidate's assessment.

4. Articles 122 and 212: courts may not inquire into the validity of proceedings in the legislature on the ground of irregularity of procedure;
5. Article 361: the President and the Governors are not answerable to any court for the exercise of their powers;
6. Articles 124 to 147 and 214 to 231: the independence of the judiciary, by security of tenure, salaries charged on the Consolidated Fund, and removal only by the process in Article 124(4).

Provisions that depart from it:

1. the executive is drawn from, and collectively responsible to, the legislature (Articles 74, 75, 163 and 164);
2. ordinance-making power of the President and the Governors (Articles 123 and 213), which is a legislative power in executive hands;
3. judicial powers of the legislature: punishment for its own contempt, impeachment of the President under Article 61, and addresses for the removal of judges;
4. legislative and executive powers of the judiciary: rules of procedure under Articles 145 and 227, and appointment of its own officers under Article 229;

4. Asif Hameed v. State of Jammu and Kashmir (1989): the three organs must function within their respective spheres, and the judiciary must not enter the field of policy.
5. Supreme Court Advocates-on-Record Association v. Union of India (2015): the 99th Amendment creating the National Judicial Appointments Commission was struck down, the primacy of the judiciary in appointments being part of the independence of the judiciary.

4. Conclusion. In India separation of powers is a principle of constitutional interpretation and part of the basic structure, rather than a rule of the constitutional text. What is forbidden is not overlap but the assumption by one organ of the essential function of another.

(a) Whether any principle of law violated here? How?

The principle invoked is nemo judex in causa sua in its departmental form, but on the scheme of the Bombay Police Act the objection does not succeed by itself. The order is bad only if the procedure the Act itself lays down was not followed, or if there is more than mere departmental interest.

1. The principle relied on. The rule against bias forbids a man from being judge in his own cause, and one form of it is departmental or institutional bias, where the same authority investigates, prosecutes and then decides.

4. But the Act builds in a hearing, and that is where the real objection lies. Section 59 requires that before an order of externment is made, the person must be informed in writing of the general nature of the material allegations against him and given a reasonable opportunity of tendering an explanation, with a right to appear by an advocate and a right to lead evidence. He also has a right of appeal to the State Government under Section 60. If those requirements were not complied with, the order is bad, and that is the ground to argue.

2. the functions are separated within the department, so that the officer who investigates is not the officer who decides. This is the working solution in disciplinary proceedings, where the investigating officer, the inquiry officer and the disciplinary authority are different persons, and where a departmental representative presents the case;
3. the deciding officer has no personal interest in the outcome and has not himself been the complainant, the investigator or a witness. A.K. Kraipak is the boundary: a general departmental interest is tolerated, a personal stake is not;
4. the doctrine of necessity applies, that is, where the authority complained against is the only authority competent to decide and the alternative is that no decision can be made at all: Charan Lal Sahu v. Union of India (1990);
5. the decision is subject to an independent appeal or to judicial review, which is what in practice reconciles departmental adjudication with fairness. In externment, Section 60 provides an appeal to the State Government, and the High Court's jurisdiction under Article 226 remains.

1. The power. Section 144 empowers a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered, in urgent cases of nuisance or apprehended danger, to direct a person to abstain from a certain act or to take order with property in his possession, where he considers that such direction is likely to prevent obstruction, annoyance or injury, danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray.
2. The constitutional test. A restriction on Article 19(1)(a) and (b) must be reasonable and must fall within the grounds in Article 19(2) and 19(3), that is, public order, decency, morality, the sovereignty and integrity of India, security of the State, friendly relations with foreign States, contempt of court, defamation or incitement to an offence.
3. The limits the courts have imposed.
4. Babulal Parate v. State of Maharashtra (1961) upheld the constitutionality of Section 144, holding that the power is exercisable in an emergency, that the restriction is temporary, and that the safeguards, an order for a limited period, the right to move the Magistrate to rescind it, and revision, make it reasonable.

7. Ramlila Maidan Incident, In re (2012): the use of Section 144 to disperse a sleeping crowd at midnight was held to be an abuse; the Court emphasised that the power must be exercised in a just, fair and reasonable manner.
8. The procedural safeguards in the section itself. The order is normally ex parte but the Magistrate must record the material facts; it must be in writing; it may be directed to a particular individual, or to the public generally frequenting a particular place; it expires in two months, extendable by the State Government up to six months in the cases specified; and the Magistrate may rescind or alter it on the application of an aggrieved person, who is entitled to be heard, and must record reasons if he refuses.

(b) On what ground such power can be exercised?

The grounds, taken from the section itself, are:

1. that there is an urgent case of nuisance or apprehended danger;

(a) Is there any limitation to approach the court in such matters? Explain those limitation if any.

There is no statutory period of limitation for a writ petition, but there is the equitable bar of laches, and eight years' unexplained delay will ordinarily defeat the petition.

1. No statutory limitation. The Limitation Act, 1963 does not apply to proceedings under Articles 32 and 226. Neither Article prescribes any period.
2. But delay is fatal in practice. The writ jurisdiction is discretionary and equitable, and the maxim vigilantibus non dormientibus jura subveniunt, the law assists the vigilant and not those who sleep on their rights, applies. The court refuses relief where the petitioner has been guilty of laches.

5. The authorities. State of Madhya Pradesh v. Bhailal Bhai (1964): although the Limitation Act does not apply, the maximum period fixed by the legislature for a suit is a reasonable standard by which to measure delay in a writ petition, and a petition filed after that period will normally be refused. Tilokchand Motichand v. H.B. Munshi (1969): the Supreme Court refused relief under Article 32 after nine years, Hidayatullah CJ holding that the party must come within a reasonable time and that the court will not enquire into belated and stale claims. Rabindranath Bose v. Union of India (1970): no relief after a long delay even in a fundamental-rights case.
6. The exceptions. Delay is not fatal where the order is a nullity or wholly without jurisdiction; where there is a continuing wrong or a continuing cause of action, such as the continued denial of a pension or a continuing illegal detention; where the delay is explained by the pursuit of an alternative remedy; where the petition raises a pure question of law affecting many; where the impugned provision has been declared unconstitutional in another case, though even then the relief may be limited to the future; and in habeas corpus, where liberty is at stake.

4. Suppression of material facts or unclean hands: a petitioner who misleads the court is turned away without a hearing on the merits;
5. No locus standi, where the petitioner has no legal right and the case is not a public interest matter;
6. Res judicata, a petition finally decided on the merits barring a second petition on the same cause: Daryao v. State of Uttar Pradesh (1961), including constructive res judicata under Devilal Modi v. Sales Tax Officer (1965);
7. Infructuous or academic petitions, where no effective relief can be granted;
8. Acquiescence or waiver of an ordinary legal right, though fundamental rights cannot be waived: Basheshar Nath v. Commissioner of Income Tax (1959);
9. The petition is against a private body performing no public duty;
10. The matter is one of policy, or of pure academic or political character.

2. The Lokpal acts on a complaint, not on news. Under Section 2(1)(e) of the Lokpal and Lokayuktas Act, 2013, a "complaint" means a complaint made in such form as may be prescribed, alleging that a public servant has committed an offence punishable under the Prevention of Corruption Act, 1988. The Lokpal (Complaint) Rules, 2020 prescribe the form, and the complaint must be accompanied by an affidavit and by supporting evidence.
3. Jurisdiction over a Minister. Under Section 14(1) the Lokpal's jurisdiction extends to the Prime Minister, with exclusions for allegations relating to international relations, external and internal security, public order, atomic energy and space, and subject to the special safeguards in Section 14(1)(a); to Ministers of the Union under Section 14(1)(b); to members of either House under Section 14(1)(c), but not in respect of anything said or any vote given in Parliament, which repeats the Article 105(2) privilege; and to officers and employees of the Union and of bodies substantially financed by it.

6. The safeguard against frivolous complaints. Section 46 provides that a person who makes a false and frivolous or vexatious complaint is punishable with imprisonment up to one year and fine up to Rs. 1,00,000, on a complaint made by the public servant concerned and after the Lokpal's own inquiry.
7. So the answer to write: the Lokpal cannot take cognizance merely because something was said in Parliament, since that is neither a complaint in the prescribed form nor evidence; but if Mr. Ramesh files a complaint in the prescribed form with an affidavit, within seven years, against a Minister, alleging an offence under the Prevention of Corruption Act, the Lokpal has jurisdiction, and must proceed by preliminary inquiry after hearing the Minister.

(b) State the power of Lokpal.

1. Jurisdiction over the Prime Minister, Ministers, members of Parliament, and all groups of central Government officials, and over the officers of bodies and societies substantially financed by the Union or receiving foreign contributions above the prescribed limit (Section 14).

7. An Inquiry Wing under Section 11 headed by a Director of Inquiry, and a Prosecution Wing under Section 12 headed by a Director of Prosecution.
8. Administrative and financial autonomy: its expenses are charged on the Consolidated Fund of India (Section 18), and it appoints its own officers.
9. Power to act suo motu and to inquire on a reference.

Its limitations should be stated in a line: the Lokpal has no power to punish, only to inquire, investigate and prosecute before the Special Court; and its own inquiry against the Prime Minister requires the approval of a full Bench of not less than two-thirds of the members in a sitting held in camera.

For full marks, cover: three definitions with their criticism; five features of the nature of the subject; the reasons for its growth; ten heads of scope; 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 covers much of constitutional law, and it omits the element of control, which is the centre 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 agencies that adjudicate and says little about rule-making, and it is drawn from a system with a codified Administrative Procedure Act.

3. Reasons for its growth. The change from the laissez faire State to the welfare State; the inability of the legislature to make detailed law, producing delegated legislation; the inability of the ordinary courts to handle the volume and the technicality, producing tribunals; industrialisation, urbanisation and planning; emergencies; and the value of experiment.

4. Scope. It covers:

1. the organisation and composition of administrative authorities, tribunals, commissions, corporations and local bodies;
2. delegated legislation and its parliamentary, procedural and judicial control;
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, its failure and its abuse;
6. judicial review, the writs under Articles 32 and 226, and 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, with promissory estoppel and legitimate expectation;

6. Sources. The Constitution; statutes; delegated legislation; judicial decisions, which are the principal source of the governing principles; and administrative directions and departmental practice, which bind internally and may found a legitimate expectation.

3. It gives judicial review something to review. A reasoned order can be tested; an unreasoned one cannot. Without the duty to give reasons and to decide on disclosed material, review would be a formality.
4. It confers legitimacy. A person who has been heard accepts an adverse decision as he never accepts one taken behind his back, which is why the rule matters even where the outcome would have been the same.
5. It restrains the abuse of power, by forcing the decision into the open and requiring the decision-maker to face the case against his own view.
6. It is a constitutional guarantee in India, not merely a rule of practice. After Maneka Gandhi v. Union of India (1978), a procedure that denies a hearing is not "right, just and fair" and so violates Articles 14 and 21. A breach is therefore a breach of a fundamental right, enforceable under Article 32.
7. It fills the gaps in statutes, since the courts read the requirement into every statute that does not exclude it: Cooper v. Wandsworth Board of Works (1863), "the justice of the common law will supply the omission of the legislature".

5. The third rule: the reasoned order. Siemens Engineering v. Union of India (1976): recording reasons is "a basic principle of natural justice". S.N. Mukherjee v. Union of India (1990): reasons must be recorded unless expressly or by necessary implication dispensed with. Mohinder Singh Gill v. Chief Election Commissioner (1978): an order must stand or fall on the reasons it itself gives.

6. Exceptions. Statutory exclusion; emergency; impracticability (Bihar School Examination Board v. Subhas Chandra Sinha, 1970); legislative action; confidentiality and the security of the State; "useless formality", narrowly applied; purely administrative or contractual matters; interim preventive measures; and the second proviso to Article 311(2) as construed in Union of India v. Tulsiram Patel (1985).

7. Effect of a breach. The order is void, not voidable. It is quashed and the matter remitted, and the authority may decide again after giving a hearing.

1. simple laying, for information only, the rule taking effect regardless;
2. laying subject to negative resolution: the rule is effective at once but ceases if the House annuls it, usually within thirty days of sitting; this is the commonest Indian form;
3. laying subject to affirmative resolution: the rule has no effect until approved.

Atlas Cycle Industries Ltd. v. State of Haryana (1979): where the statute merely requires laying, the requirement is directory, and failure to lay does not invalidate the rule; where laying is made a condition of validity, it is mandatory.

(c) Scrutiny by committee. The Committee on Subordinate Legislation of the Lok Sabha (1953) and of the Rajya Sabha (1964) examine whether the rules are within the power conferred; whether they impose a tax; whether they oust the jurisdiction of the courts; whether they have retrospective effect without authority; whether they involve unusual or unexpected use of the power; and whether there has been unjustifiable delay in laying or publication. They report to the House.

3. Procedural control.

1. the parent Act is unconstitutional, so everything under it falls;
2. the delegation is excessive, that is, the Act lays down no policy or standard: Delhi Laws Act, Hamdard Dawakhana;
3. the rule exceeds or contradicts the parent Act, the commonest ground: General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav (1988); State of Karnataka v. H. Ganesh Kamath (1983);
4. the rule violates the Constitution, being "law" within Article 13(3)(a): Air India v. Nergesh Meerza (1981); Narendra Kumar v. Union of India (1960);
5. the rule is manifestly unreasonable or arbitrary (Kruse v. Johnson, 1898; and in India, arbitrariness as a breach of Article 14): Indian Express Newspapers v. Union of India (1985);
6. mala fides;
7. unauthorised sub-delegation: Agricultural Market Committee v. Shalimar Chemical Works (1997);
8. retrospective operation without express authority;
9. exclusion of the jurisdiction of courts, or the creation of a tax or an offence, without clear authority.

For full marks, cover: each of the three at about four marks, with a definition, the essentials, the case law and the limits. They are connected, and saying how they connect at the end is worth a mark.

(a) Estoppel

1. The general rule. Section 115 of the Indian Evidence Act, 1872, now Section 121 of the Bharatiya Sakshya Adhiniyam, 2023: where one person has by his declaration, act or omission intentionally caused or permitted another to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and that person to deny the truth of that thing.

1. No estoppel against a statute. The doctrine cannot compel an authority to act contrary to law or to exceed its powers: Excise Commissioner, U.P. v. Ram Kumar (1976).
2. No estoppel against the legislature in the exercise of its legislative function, nor against a change of law.
3. It yields to an overriding public interest, which the Government must establish and not merely assert.
4. It is a rule of evidence and equity, not a cause of action in itself in the strict sense, though in India it is enforceable in a writ petition.

(b) Writ of Mandamus

1. Meaning. Mandamus, "we command", is a command issued by the Supreme Court under Article 32 or a High Court under Article 226 to a person, corporation or inferior tribunal, requiring it to do a public duty which it is bound to do and has failed or refused to do.

2. Conditions.

1. The applicant must have a legal right to the performance of the duty;

5. What it can achieve. It can compel the performance of a duty; compel an authority to exercise a discretion it has wrongly refused to exercise, or to consider a case it has refused to consider; forbid the enforcement of an invalid law; and, in the Indian form under Article 226, be moulded to the justice of the case: Comptroller and Auditor General v. K.S. Jagannathan (1986), where the Supreme Court held that the High Court is not confined to the technical limits of the English writ and may direct the authority to act in a particular manner where injustice would otherwise result.

6. Kinds. Alternative (a nisi rule, calling on the respondent to show cause) and peremptory (absolute), and continuing mandamus, developed in Vineet Narain v. Union of India (1998), where the court keeps the matter on its board and monitors compliance over time.

(c) Legitimate Expectation

1. Meaning. Where a public authority has made a clear and unambiguous promise, or has followed a regular and settled practice, a person affected may reasonably expect that it will be honoured or continued, and the authority may not depart from it without acting fairly.

2. Its two forms.

4. Union of India v. Hindustan Development Corporation (1993): a legitimate expectation may be defeated by a change of policy in the public interest, and the court reviews the change only on Wednesbury grounds. The expectation must be founded on a promise or practice and must be "reasonable, logical and valid".
5. Punjab Communications Ltd. v. Union of India (1999) and Sethi Auto Service Station v. Delhi Development Authority (2009) confirm that the doctrine confers no enforceable right to the benefit and that mere anticipation is not enough.

4. The limits. The expectation must arise from an express promise or a settled practice; it must be legitimate, not merely hoped for; it cannot be founded on a promise that is ultra vires or contrary to law; and it yields to an overriding public interest, which the authority must justify.