Introduction Legislative Function Executive Functions

Introduction Legislative Function Executive Functions Judicial Functions Negative state → Positive Social welfare state Jain and Jain

1. Define the power of executives2. Limit defined3. Procedure to follow4. Control these by Judicial and other means- remedies

Griffth and Street 5. Way the administration power kept in those limits

Justice CK Thaker- same statement mentioned above Laissez faire – Policy non interference in commercial matters by government- police state

Sources of Administrative Law Constitution law, Precedents, Statutes, Ordinance, Reports of Commission, Administrative, Power control Techniques Hood Philips

Constitution law – government at Rest Administration law – government at motion

Origin and Development of administrative law English Speaking – common law France follows – civil law

Droit Administration- civil code by napoleon To make law – passed by French parliament and senate

• Administrative courts – officials rep of state – le droit public- Tribunaux Adminstratifs

• Civil Courts – private individuals – le droit private –o Civil – first degree court ( local court) court TGI- tribunal de grand e institute

second degree- cour d appeal or appeal courto Criminal - tribunal de police, Tribunal corretionnale

Main Feature

• Dual system of courts

• Conseil d Etat-highest administrative court in France – by napolean

• Tribunal des conflicts – conflict between ordinary courts and administrative courts

• Application of special rulesBasic constitutional Principle

• Doctrine of Separation of Power – Legislative , Executive, Judiciary

• Doctrine of Rule of LawRule of law

La principle de legalite AV Dicey

• Supremacy of law

• Equality before law

• Predominance of legal spirit ( independent, impartial, competent)Rex non protest peccare- King can do no wrong Indira Gandhi v Raj Narain- provide certain immunities to PM election from Judicial review AK Karipak v Union of India – every organ under state controlled by rule of law Re Arundhathi Roy – SC comment Rule of law is the basic rule of any civilized democratic polity Ram Jawaya v State of Punjab- Administration is apart from Judicial and Governmental function. Kesavananda Bharathi v State of kerala – Rule of law is the basic doctrine of constitution I C Golak Nath v State of Punjab

Function of administrative authorities

• Administrations or Residual functionso Discretionary functions- statueso Ministerial functions

• Legislative / Quasi legislative Functionso Supreme legislationo Subordinate legislations

• Judicial and Quasi judicial functionsI C Golak Nath v State of PunjabRam Jawaya v State of Punjab- Administration is apart from Judicial and Governmental function.

Page 1 of 5 Administrative Law - semester 2 Kerala University - 2017-2020

Read Anil K Nair Book, Before Reading This Short Notes ullaskrishnan.com/llb

Delegated Legislation Jain and Jain

• The exercise of legislative power by executive

• Rule made by executive by the power conferred on it by the legislature Reason for growth of delegated legislation – PTFEE US

• Pressure upon parliament

• Technicality

• Experimentation

• Not flexible ( difficulty in amendment)

• Emergency Situations

• Unforeseen contingency

• Secrecy Classification or Type of Delegated legislation

Title based classification- RROBDS Purpose based - OLIMPSR Discretion based

Rule Power to bring into operations Subordinate legislation

Regulation Extend scope life of the act Condition legislation

Order Include and exclude person or object

By Laws Modify the act or statute

Direction Prescribe punishment

Scheme Adopt law from other states

Remove difficulties

Permissible and Impermissible Delegation- “New Despotism”- Book by J Hewart

Permissible 1. Commencement of the Act – consumer protection act 1986 – date different by state 2. Power to fill in details

Kunj Behari lal v State of HP 3. Power of inclusion and exclusion

Edward mills v state of Ajmer 4. Power of Modify statute ( Henry VIII clause)

Sinai v Union of India Impermissible

1. Power to Repeal law Re Delhi Act

2. Retrospective Operations 3. Power to Impose tax 4. Essential Legislative functions Art 245

State of Rajasthan v Basant Nahata Conditional legislation

Left to the executive to bring the Act into operations on fulfilment of some conditions Inder Singh v State of Rajasthan – extend notification valid Jatindra Nath v Province of India -Indian legislator has no power to delegate legislative power

Types / Kinds of Control of Delegated Legislation

• Procedural – Drafting, consultation, publication of rules

• Judicial

• Legislative Other Controls Sub Delegation – if without authority its not valid Central talkies v Dwaraka Prasad Types of control over Delegated legislation – Procedural, Judicial, Legislative, Other control Judicial Control Over Delegated Legislation – Doctrine of Substantive Ultra Vires and procedural ultra vires

Challenging validity of delegated registration Courts apply two test to check that

1. Substantive ultra vires – a. Parent act is unconstitutional- chintamma rao v state of MP- bidi b. Delegated is inconsistent with parent act- Indian council of legal aid and advice v

Bar council of India – barred enrolment 45 c. Delegated legislation is unconstitutional- d. Unreasonableness- Air india v Nargeesh Meerza e. Malafide or bad faith – Bombay dyeing v Bombay Environmental action grp f. Sub-delegation g. Exclusion of judicial review h. Retrospective operations

2. Procedural ultra vires – subordinate legislation



a. Consultation i. Official consultation banking to consult with reserve bank

ii. Consultation with statutory board- banwarilal v mining board iii. Draft rules by affected Interest –employee affected – inspector of mines

b. Publications of by-laws– Harla v state of rajasthan c. Laying before legislature / parliment- narendra kumar v union of india

Parliamentary control over Delegated legislation 1. Direct general control 2. Direct special control- laying on table

a. Simple laying b. Laying subject to annulment c. Laying subject to affirmative resolution d. Laying subject to negative resolution e. Laying of draft rules

3. Indirect control Administrative Adjudication ( Quasi Judicial function of Administrative Authorities) The Principle of Natural Justice

Maneka Gandhi v Unioin of India AK Karaipak and Union Of India Administrative authority entrusted with Quasi-judicial function

1. Rule against bias a. Pecuniary bias

Dr Bonham’s Case – fine should go to college and king b. Personal Bias

Ak Kariapak v Unioin of India c. Bias as to subject

Gullapalli Nageswara Rao v APSRTC 2. Audi Altrem Partem

a. Notice Gupta v Union of India

b. Opportunity of hearing i. Allow to produce all evidence from his side

ii. Must disclose all evidence against him Dhakeswari cotton mills v CIT

iii. evidence if produced then given opportunity to comment Bishambhar Nath v State of UP Suresh Koshy v University of kerala – copy, caught

iv. Cross examination – not to be given always Kemchandh v Union of India - const art 311

v. Hearing not given by adjudicating authority Board of High School v Kumari Chithra

3. Speaking order or reasoned decision Order should contain reason for decision Maneka Gandhi v Union of India

Exclusion of natural Justice 1. Legislative actions 2. Urgency and public interest 3. Impracticability

Bihar School Exam Board v Subhash Chandra- mass copying 4. Useless formality theory

DRBA Ramaswamy Mudalliar Edu Inst v Education appellate Tribunal – leave for Phil joined Phd Service Under Union and State or Application of Doctrine of Pleasure

At 308-323 Doctrine of Pleasure under article 3110 and 311

Kemchand v Union of India State of UP v Harendra Arora- 42 amendment- not necessary if evidence proof

Compulsory Retirement Baikunth Nath v Chief Medical officer Sate of Gujarat v Umedbhai M Patel- suspension and compulsory retirement Protection not available – Criminal charge – Union of India v Tulsiram Patel Civil Post- Ramanatha Pillai v State of Kerala



Administrative Tribunals – Sec 322 A- Administrative Tribunal Act – 1985- Sec 4(1) Disputes and Complaint – Union

- Sec 4(3) Disputes and Complaint – State Can challenge by Writs: 32,226

Kinds of Tribunal Income tax, Industrial, Railway Rate, Administrative tribunal under Admi Act

Domestic Tribunal

Administrative Discretion and Judicial Control Court interfere in – respective circumstances

1. Failure to exercise discretion a. Sub delegation

Sahni Silk Mills v ESI – Director general assign to collect default by regional general b. Imposing fetters on exercise of discretion

Gell v Tejanoora – commissioner grant licence for land conveyance- if un fit, he made common rule for all.

c. Acting under Dictation Commissioner of Police v Gordhan Das Bhanji – cinema theatre license, cancel because of govt pressure.

d. Non Application of Mind Jagannath v State of Orissa – order detention -six condition – only two checked

2. Excess or abuse discretion a. Absence of power

Bengal Immunity v State of Bihar – tax on tax exempted b. Exceeding Jurisdiction

GES Corp v Workers Union – claim for employee only not family c. Irrelevant consideration

State of Bombay v K P Krishnan-need to transfer to industrial tribunal not transferred because of employee go slow strike condition, not valid

d. Malafied Prathap Singh v State of Punjab – doctor take leave to retire, revoked and suspension and inquiry,Chief Minister personal veganance

e. Improper Object / collateral purpose Banglore Medical Trust v B S Muddappa – paly ground to hospital, not allowed

f. Colourable exercise of power Doctrine of Proportionality – wednesbury principal

Test the validity of administration by court ,check reasonableness of admin action, mainly applied in case of disciplinary action Hind Construction v Workman – one day leave, dismiss, can have leave without pay Sardar sing v Union of India – liquor bottle – he was dismissed not good decision Associated provincial picture house v Wednesbury Principle-

i. Couldn’t interfere with punishment if proved misconduct ii. Punishment should not be irrational and shock concise of court

iii. Court should not give its own view iv. Court can nullify and refer v. To shorten punishment court can substitute its own view

Doctrine of Legitimate expectation Power of Judicial review to be executed when the act of authority is found to be unfair and against once reasonable expectation Public authority – imply certain procedure- should act fairly – interfere with its statutory duty Attorney general Hog Kong v ng Yuen Shiu – deported without opportunity

Judicial Remedy against administrative – writ Res judicata MS Sharma v Sinha – writ dismiss- same court cannot file Daryo v State of MP – if 226 dismiss on merit the cannot move to SC on 32 A R Choudhari v Union of India – not merits 226 can move to 32 Metal corp v Union of India – if 32 dismiss cannot move to 226

Lallubhai jogibhai v Union of India – habeas corpus- 226 dismiss can move 32 Locus standi- Public Interest Litigation – no needed SP Gupta and v President of India – Judge Transfer case People Union of Democratic Right- Asiad case, labour violation Olga Tellis v Municipal corp Bombay – pavements selling MC Mehta v State of Tamil nadu – match factory, child labour Murali S Deora v Union of India – Tobacco smoking public



Writ a. Habeas Corpus

Kanu Sanyal v District majistrate Darjeeling b. Mandamus

East india commercial v Customs c. Certiorary

Prabhodh varma v State of UP-act ordinance unconstitutional, only SC d. Prohibition

Hari Vishnu kammath v Ahamad Ishaque- inferior court takes matte with out jurisdiction e. Quo Warranto

Lakhanpal v A N Ray, SR Choudhary v State of Punjab Tortious Liability of State

P & O Steam Navigation Co v Secretary of State State of Rajasthan v Vidhyavathi- jeep BKD patil v State of Mysore- gold police liable Railway Board v Chandhrima Das State of AP v Challa Ramakrishna Reddy Dr Gowrikutty v Raghavan

Liability in contract – Article 298 State and union are competent to enter into business Atr 299

• All contract should be expressed in the name of governor or president

• All executed by authorize person

• Authorize person should sign on behalf of governor or president KP chowdhary v State of MP – not a valid agreement Union of Inda v N K private Ltd – Not authorized Damodharan v State of kerala – failed to pay kist in time- recovery- rejected

Quasi contractual Liability No one shall be benefitted freely State of WB v BK Mondal- Building built and rent used, no fees paid Whether State is bound by a Statute Director or Rationing V Culcutta Corp – premise for storing- no licence , but court said ok

Superintendent and Remembracer of legal Affairs WB v Corp Culcutta- liable if not excluded, daily market

Doctrine of Public accountability Lucknow Development Authority v M K gupta Common cause a Registered Society v Union of India – Petroleum pump Shi Sagar Tiwari v Union of India – Shops and stall Doctrine of Promissory Estoppel Century spg and Mfg Co v Ulhasnagar Municipality-octori- 7 years no need, Motilal padampat Sugar mills v State of UP Pawan alloy v UPSEB

1. No estoppel against statue a. Jitram V State of Haryana- otroi exempted

2. No Estoppel against public Interest a. Kasinka Trading v Union of India – exemption from customs duty

Government Privileges to hold Documents sec 123 of Indian Evidence act 1872 Action against him 114 evidence act Sodhi Sukhdev Singh v State of Punjab- Judge removed Indira Gandhi v Raj Narain Union of India v SP Gupta

