Sasi K.G.
01. INTRODUCTION
Administrative
law is the body of law that governs
the activities of administrative agencies of government. Government agency action can
include rulemaking, adjudication, or the enforcement of a
specific regulatory agenda.
Administrative law is considered a branch of public law. As a body of law,
administrative law deals with the decision-making of administrative units of
government (for example, tribunals, boards or commissions) that are part of
a national regulatory scheme in such areas
as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative
law expanded greatly during the twentieth century, as legislative bodies
worldwide created more government agencies to regulate
the social, economic and political spheres of human interaction.
02. JUDICIAL REVIEW IN ADMINISTRATIVE ACTION
Before
entering into the topic, we must be familiar with some basic concepts of Administrative
Law.
01. Administrative Law
01. Definitions of Administrative Law
An online
dictionary defines Administrative Law as[i];
1. Body of rules,
regulations and orders formulated by a government body (such as an environment
management agency) responsible for carrying out statute law.
2. Legal rules and
principles on which courts act in controlling the exercise of statutory powers
of adjudication and rule making by public authorities (other than judiciary and
legislature).
It is difficult to evolve a scientific precise and satisfactory definition of administrative law. Many jurist have attempted to define it. But none of the definitions has completely demarcated the nature, scope and contents of Administrative Law. Either the definitions are too broad and include much more than what is necessary or they are too narrow and do not include all the necessary contents.
It is difficult to evolve a scientific precise and satisfactory definition of administrative law. Many jurist have attempted to define it. But none of the definitions has completely demarcated the nature, scope and contents of Administrative Law. Either the definitions are too broad and include much more than what is necessary or they are too narrow and do not include all the necessary contents.
Definition by Ivor
Jennings
According to Ivor
Jennings in his "The law and the constitution, 1959",
"administrative law is the law relating to the administrative
authorities".
This is the most
widely accepted definition, but there are two difficulties in this definition.
(1) It is very wide
definition, for the law which determines the power and functions of
administrative authorities may also deal with the substantive aspects of such
powers.
For example:-
Legislation relation to public health services, houses, town and country
planning etc.. But these are not included within the scope and ambit of
administrative law, and
(2) It does not
distinguish administrative law from constitution law.
Definition by K. C.
Davis
According to K. C.
Davis, "Administrative law is the law concerning the powers and procedures
of administrative agencies, including especially the law governing judicial
review of administrative action".
Definition by Prof.
Wade
According to Wade
(Administrative Law, 1967) any attempt to define administrative law will create
a number of difficulties. But if the powers and authorities of the state are
classified as legislative, administrative and judicial, then administrative law
might be said "the law which concerns administrative authorities as
opposed to the others".
There are some
difficulties with this definition. It falls to distinguish administrative law
from constitutional law Like Jennings definition mentioned above, this is also
very wide definition. It includes the entire legal field except the legislature
and the Judiciary. It also includes the law of local government. It is also
said that it is not possible to divide completely and definitely the functions
of legislative, executive and judiciary.
It is very
difficult to say precisely where legislation ends and administrative begins.
Though enacting a law is function of the legislature the administrative
authorities, legislate under the powers delegated to them by the legislature
and this delegated legislation is certainly a part of administrative law.
Definition by Jain
and Jain
According to Jain
and Jain, "Administrative law deals with the structure, powers and
function of the organs of administration, the limits of their powers, the
methods and procedures followed by them in exercising their powers and
functions, the method by which their powers are controlled including the legal
remedies available to a person against them when his rights are infringed by
their operation".
Administrative law,
according to this definition, deals with four aspects:-
It deals with
composition and the powers of administrative authorities.
It fixed the limits
of the powers of such authorities.
It prescribes the
procedures to be followed by these authorities in exercising such powers and,
It controls these
administrative authorities through judicial and other means.
Definition by
Griffith and Street
According to
Griffith and Street, (Principles of administrative law, 1963), the main object
of Administrative law is the operation and control of administrative
authorities, it must deal with the following three aspects:-
What are the limits
of those powers?
What sort of power
does the administration exercise?
What are the ways
in which the administrative is kept within those limits?
Improvement to
Griffith and Street's Definition by Indian Law Institute
According to
the Indian Law Institute, the following two aspects must be added to have
a complete idea of the present-day administrative law:-
What are the
procedures followed by the administrative authorities?
What are the
remedies available to a person affected by administration?
Definition by
Garner
According to
Garner, administrative law may be described as "Those rules which are
recognized by the court as law and which relates to and regulate the
administration of government."
Modern Definition
Administrative Law is that
branch of the law, which is concerned, with the composition of powers, duties, rights
and liabilities of the various organs of the Government.
02. Scope of Administrative Law
The emergence of the social
welfare has affected the democracies very profoundly. It has led to state
activism. There has occurred a phenomenal increase in the area of sate
operation; it has taken over a number of functions, which were previously left
to private enterprise. The state today pervades every aspect of human life. The
functions of a modern state may broadly be placed into five categories, viz,
the state as:-
1. protector,
2. provider,
3. entrepreneur,
4. economic controller and
5. arbiter.
Administration is the
all-pervading feature of life today. The province of administration is wide and
embrace following things within its ambit:-
1. It makes policies,
2. It provides leadership to the legislature,
3. It executes and administers the law and
4. It takes manifold decisions.
5. It exercises today not only the traditional functions of administration,
but other varied types of functions as well.
6. It exercises legislative power and issues a
plethora of rules, bye- laws and orders of a general nature.
The advantage of the
administrative process is that it could evolve new techniques, processes
and instrumentalities, acquire expertise and specialization, to meet and handle
new complex problems of modern society.
Administration has become a
highly complicated job needing a good deal of technical knowledge, expertise
and know-how. Continuous experimentation and adjustment of detail has become an
essential requisite of modern administration. If a certain rule is found to be
unsuitable in practice, a new rule incorporating the lessons learned from
experience has to be supplied.
The Administration can change
an unsuitable rule without much delay. Even if it is dealing with a problem
case by case (as does a court), it could change its approach according to the
exigency of the situation and the demands of justice. Such a flexibility of
approach is not possible in the case of the legislative or the judicial process.
Administration has assumed such an extensive, sprawling and varied character,
that it is not now easy to define the term “administration” or to evolve a
general norm to identify an administrative body. It does not suffice to say
that an administrative body is one, which administers, for the administration
does not only put the law into effect, but does much more; it legislates and
adjudicates. At times, administration is explained in a negative manner by
saying that what does not fall within the purview of the legislature or the
judiciary is administration.
02. Administrative Action
Administrative
action is the residuary action which is neither legislative nor judicial. It is
concerned with the treatment of a particular situation and is devoid of generality.
It has no procedural obligations of collecting evidence and weighing argument.
It is based on subjective satisfaction where decision is based on policy and
expediency. It does not decide a right though it may affect a right. However,
it does not mean that the principles of natural justice can be ignored
completely when the authority is exercising “administrative powers”. Unless the
statute provides otherwise, a minimum of the principles of natural justice must
always be observed depending on the fact situation of each case.
In case A.K.
Kraipak v. Union of India[ii] ,
the Court was of the view that in order to determine whether the action of the
administrative authority is quasi-judicial or administrative, one has to see
the nature of power conferred, to whom power is given, the framework within
which power is conferred and the consequences.
Administrative action may be statutory, having the force of law, or non-statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
Administrative action may be statutory, having the force of law, or non-statutory, devoid of such legal force. The bulk of the administrative action is statutory because a statute or the Constitution gives it a legal force but in some cases it may be non-statutory, such as issuing directions to subordinates not having the force of law, but its violation may be visited with disciplinary action. Though by and large administrative action is discretionary and is based on subjective satisfaction, however, the administrative authority must act fairly, impartially and reasonable.
Grounds for
Judicial Review of Administrative Actions are
1. Illegality
2. Irrationality
3. Procedural
impropriety
4. Proportionality
03. Judicial Review
In 1610, in Dr Bonham case[iii]
when Lord Chief Justice Coke of England declared an Act of Parliament which had
put its seal on the Charter of Royal College of Physics as void, he gave effect
to the principle that an interested person being a beneficiary, cannot be a
prosecutor and a judge at the same time. Royal College was a society in whose
favour the Royal Charter was given. Under the Charter the society was
authorised to impose fine on the member - violator of the bye-laws/rules of the
society. In the fine imposed and collected by the society from such a member it
had one-half share.
Dr Bonham who was fined by the
society for violation of its rules and was imprisoned for non-payment of fine,
challenged the validity of the action of the society. Chief Justice Coke
declared the Act as void, the impugned action illegal and ordered his release.
This case may be said to be the beginning of the principle of judicial review
of the legislation. It may be noticed here that after the English revolution of
1688, supremacy of Parliament became the hallmark of the unwritten Constitution
of the U.K. Perhaps, for that reason, the doctrine of judicial review of
parliamentary legislation did not develop in the U.K. for over a century.
However, with reference to legislation of colonies, this principle was applied
and in that context, the English courts developed it later. In countries having
a written Constitution, the position is somewhat different. The principle of
judicial review gained firm ground in the U.S.A. in the beginning of the 19th
century. Though the doctrine of separation of powers is incorporated in the
Constitution of the United States, there is, however, no conferment of express
power of judicial review of legislation by the Congress on the Supreme Court of
the United States. That principle was ingrained by Chief Justice Marshall of the
Supreme Court of the United States in the famous case of Marbury v. Madison[iv]
holding:
"Certainly, all those who
have framed written Constitutions contemplate them as forming the fundamental
and paramount law of the nation, and consequently, the theory of every such
Government must be, that an Act of the legislature, repugnant to the
Constitution, is void. This theory is essentially attached to a written
Constitution, and is, consequently, to be considered, by this Court, as one of
the fundamental principles of our society."
The elections of 1800 in the U.S.A. resulted in change of the President.
In February 1801, about 200 years ago Marbury, along with 41 persons, was
appointed as Justice of Peace for a period of five years by the outgoing
President, John Adams (they were called midnight appointees). The Senate
confirmed the appointments and the warrants of appointment were signed and
sealed. In March 1801, Thomas Jefferson took charge as the President of the
U.S.A. At his instance, the Secretary of State, James Madison, declined to
deliver the warrant of appointments to Marbury and others who sought a writ of
mandamus against the Secretary from the Supreme Court for delivery of warrants.
At that time, such an action was considered as an attempt to intrude and
intermeddle with the prerogatives of the executive. Chief Justice Marshall,
nevertheless, held that the Act establishing the judicial courts of the United
States conferring authority on the Supreme Court to issue writ of mandamus,
inter alia, to public officers in its original jurisdiction which was not
warranted under the Constitution, was void. Thereafter, the principle of
judicial review was firmly established in the American jurisprudence. President
Charles Evan Hughes in his speech aptly remarked, "We are under a Constitution
but the Constitution is what the Judges say it is." The principle of
judicial review became an essential feature of written Constitutions of many
countries.
Judicial
review is a great weapon in the hands of judges. It comprises the power of a
court to hold unconstitutional and unenforceable any law or order based upon
such law or any other action by a public authority which is inconsistent or in
conflict with the basic law of the land.
Broadly
speaking, judicial review in India deals with three aspects:
(i)
judicial review of legislative action;
(ii)
judicial review of judicial decision; and
(iii)
judicial review of administrative action.
It
is necessary to distinguish between ‘judicial review’ and ‘judicial control’.
The term judicial review has a restrictive connotation as compared to the term
judicial control. Judicial review is ‘supervisory’, rather than ‘corrective’,
in nature. Judicial review is denoted by the writ system which functions in
India under Arts. 32 and 226 of the Constitution. Judicial control, on the
other hand, is a broader term. It denotes a much broader concept and includes
judicial review within itself. Judicial control comprises of all methods
through which a person can seek relief against the Administration through the
medium of the courts, such as, appeal, writs, declaration, injunction, damages
statutory remedies against the Administration.
The principle of judicial
review has been held to be a basic feature of our Constitution. It is
incorporated in Articles 226 and 227 of the Constitution insofar as the High
Courts are concerned. Supreme Court Articles 32 and 136 of the Constitution
embody the principle of judicial review. Article 32 is included in Part III as
a fundamental right for enforcement of any of the fundamental rights conferred
under Part III.
Under our Constitution,
judicial review can conveniently be classified under three heads:
(1) Judicial review of
constitutional amendments
This has been the
subject-matter of consideration in various cases by the Supreme Court; of them
worth mentioning are: Shankari Prasad case[v],
Sajjan Singh case[vi], Golak Nath case[vii],
Kesavananda Bharati case[viii],
Minerva Mills case[ix], Sanjeev Coke case[x] and
Indira Gandhi case[xi]; the
test of validity of constitutional amendments is conforming to the basic
features of the Constitution.
(2) Judicial review of
legislation of Parliament, State Legislatures as well as subordinate
legislation
Judicial review in this
category is in respect of legislative competence and violation of fundamental
rights or any other constitutional or legislative limitations;
(3) Judicial review of
administrative action action of the Union of India as well as the State
Governments and authorities falling within the meaning of State
Judicial review of administrative
action may relate to either a non-statutory administrative action or a
statutory administrative action. In both these cases violation of
constitutional provisions like Articles 14, 19, 29, 30, 301, 304 etc., or any
statutory provision will invalidate the administrative decision. We may in this
connection be benefited by judgments of our Supreme Court in Ajay Hasia case[xii],
Royappa case[xiii] and Maneka Gandhi case[xiv].
Judicial review of administrative action, observed Lord Diplock in Council of
Civil Service Union[xv]:
"... one can conveniently
clarify under three heads the grounds upon which administrative action is
subject to control by judicial review. The first ground I would call
'illegality', the second 'irrationality' and the third 'procedural impropriety'.
That is not to say that further development on a case-by-case basis may not in
course of time add further grounds." Going by this classification, insofar
as the illegality is concerned, errors of law which vitiate the ultimate
decision are open to judicial review.
In Pearlman v. Governors of
Harrow School[xvi] Lord Denning, M.R.
observed: "no court or tribunal has
any jurisdiction to make an error of law on which the decision of the case
depends. If it makes such an error it goes outside its jurisdiction".
01. Public Law Explained
To simplify things, public law deals with issues that
affect the general public or state - society as a whole. Some of the laws that
its wide scope covers are:
Administrative law - laws that govern government
agencies, like the Department of Education and the Equal Employment Opportunity
Commission
Constitutional laws are laws that protect citizens'
rights as afforded in the Constitution
Criminal laws are laws that relate to crime
Municipal laws are ordinances, regulations and by-laws that govern
a city or town
International laws are laws that oversee relations
between nations
02. Private Law Explained
Private
law affects the rights and obligations
of individuals, families, businesses and small groups and exists to assist citizens
in disputes that involve private matters. Its scope is more specific than
public law and covers:
Contract law - governs the
rights and obligations of those entering into contracts
Tort law - rights,
obligations and remedies provided to someone who has been wronged by another
individual
Property law - governs forms of
property ownership, transfer and tenant issues
Succession law - governs the
transfer of an estate between parties
Family law - governs
family-related and domestic-related issues
However
Private Law Review in Administrative Law cannot be taken under this
classification as Administrative Law itself is a branch of Public Law. Hence
Public Law Review and Private Law review in Administrative Action has to be
viewed in a different but limited angle.
03. Public Law Review
The
Indian Constitution adopted the Judicial Review on lines of U.S. Constitution.
Parliament is not supreme under the Constitution of India. Its powers are
limited in a manner that the power is divided between centre and states. Moreover
the Supreme Court enjoys a position which entrusts it with the power of
reviewing the legislative enactments both of Parliament and the State
Legislatures. This grants the court a powerful instrument of judicial review
under the constitution.
Both the
political theory and text of the Constitution has granted the judiciary the
power of judicial review of legislation. The Constitutional Provisions which
guarantee judicial review of legislation are Articles 13, 32, 131-136, 143, 145,
226, 227, 246, 251, 254 and 372.
Article
13 declares that any law which contravenes any of the provisions of the part of
Fundamental Rights shall be void. Articles 32 and 226 entrusts the roles of
the protector and guarantor of fundamental rights to the Supreme and High
Courts. Articles 131-136 entrusts the court with the power to adjudicate
disputes between individuals, between individuals and the state, between the
states and the union; but the court may be required to interpret the provisions
of the constitution and the interpretation given by the Supreme Court becomes
the law honoured by all courts of the land. Article 227 confers certain powers
on the High Courts. Article 251 and 254 states that in case of inconsistency
between union and state laws, the state law shall be void. Article 246 (3)
ensures the state legislature’s exclusive powers on matters pertaining to the
State List. Article 245 states that the powers of both Parliament and State
legislatures are subject to the provisions of the constitution. Article 372 (1)
establishes the judicial review of the pre-constitution legislation.
The
legitimacy of any legislation can be challenged in the court of law on the
grounds that the legislature is not competent enough to pass a law on that
particular subject matter; the law is repugnant to the provisions of the
constitutions; or the law infringes one of the fundamental rights.
There is
no express provision in our constitution empowering the courts to invalidate
laws, but the constitution has imposed definite limitations upon each of the
organs, the transgression of which would make the law void. The court is
entrusted with the task of deciding whether any of the constitutional
limitations has been transgressed or not.
The object of the judicial
review is to demarcate the boundaries of power of Parliament, the State
Legislatures and the executive actions of the Union and the States under law
and also to ensure observance of procedural safeguards. It is not exercised to
scuttle the authority of the legislature in the larger sense (which includes
Parliament) or the executive. The courts interpret the Constitution, relevant statutes,
rules or bye-laws, define the scope of power thereunder and determine whether
the impugned action is intra vires or ultra vires the authority and examine as
to how the power has been exercised. In exercise of judicial review of administrative
action there can be no doubt that the executive power of the Union of India
under Article 73 of the Constitution extends to all matters which are within
its legislative competence (List I and List III of the Seventh Schedule); so
also the executive power of the State under Article 162 of the Constitution
extends to all matters in respect of which it is competent to legislate (List
II and List III of the Seventh Schedule of the Constitution).
The power of judicial review
is available to the superior courts in respect of matters falling within the
realm of public law and not in respect of matters of private law. What matters
fall within the purview of public law and what matters fall within the purview
of private law is a moot question which needs to be debated in the seminar.
04. Private Law Review
The action of awarding
contract by a public authority falls within the purview of public law but the
terms of contract regarding rates, time specified for completion of work and
other similar condition in the contract between public authority and the
private individual as also the quantum of damages for breach of the contract,
all fall within the purview of private law in respect of which no judicial
review will be permissible.
Thus, grant of licences,
imposition of fees, classification of land, rules relating to dealership of
essential commodities, etc. which fall within the domain of public law, can be
the subject-matter of judicial review. Judicial review should not be mistaken
for the appeal. The right of appeal is a statutory right which can be invoked
when it is so provided in the relevant Act whereas the right to seek judicial
review is available even when there is a finality clause or ouster clause in an
Act that the order passed by an authority thereunder is final and shall not be
questioned in a court of law or that the civil court has no jurisdiction to
entertain a suit in respect of any matter required to be dealt with by the
authority under the Act. In the face of such a provision in any Act, an
ordinary civil court has no jurisdiction to entertain a suit for adjudication
of any question arising under such an Act but the extraordinary jurisdiction of
the High Courts and the Supreme Court, conferred by the Constitution, is not
barred. Chandra Kumar case[xvii] is
a glaring example.
One important aspect to be
borne in mind is that in judicial review the courts are mainly concerned with
the competence of the authority and the mode in which the authority takes the decision
and not the decision taken by the authority. They are not concerned with the
merits of the decision. The courts do not substitute their opinion or decision
in place of the impugned decision of the authority but in appeal the appellate
court does have the power to consider the merits of the case and substitute its
own decision for that of the subordinate court or tribunal. It is profitable to
be apprised of the words of Lord Hailsham L.C., in the case of Chief Constable
of N.W.[xviii]:
"Judicial review is
concerned not with decision but with decision-making process. Unless that
restriction on the power of court is observed, the court will under the guise
of preventing the abuse of power, be itself guilty of usurping power."
STATUTORY JUDICIAL
REMEDIES
Apart from the Constitutional remedies contained in Arts. 32, 136,
226 and 227, which have already been discussed in the last few chapters,
certain statutes also provide for seeking remedies through the Courts by
aggrieved persons against the administration. These statutory judicial remedies
are of two types:
(i) general statutory
remedies;
(ii) specific
statutory remedies provided by specific statutes for agitating questions
thereunder.
The latter may
take several forms. The purpose of this chapter is to discuss some of these
statutory judicial remedies available against administrative bodies.
GENERAL STATUTORY
REMEDIES
The classical
remedy which a person has to vindicate his legal right against an administrative
authority is by way of filing a civil suit in a Court claiming the proper
relief. Although with the institution of the writ system by the Constitution,
the importance of this remedy has been devalued, yet it has not lost all its
significance, and may have to be taken recourse to by a person affected by an
administrative action if desires a relief which he may not possibly get by
invoking the writ jurisdiction. For example, a writ is not available to enforce
payment of money or a claim for damages accruing from a civil liability and
such a matter is better determined through a civil suit may also be preferable
to a writ petition when determination of a claim against the administration
involves decision on questions of fact on the basis of evidence produced by the
parties. The High Courts are extremely reluctant to undertake such a task in
writ proceedings and hence a suit may have to be filed in such a situation.
04. Judicial Review in Administrative Action
Up to the 19th century the functions of the State in England were confined
to (i) defence of the country from foreign invasion, and (ii) maintenance of
law and order within the country.
Feudal, agricultural society, was relatively simple and social relations
were uncomplicated. There were few laws, mainly customary (not statutory). But
with the advent of industrial revolution in the 18th and 19th centuries,
society became complex. Concentration of people in urban areas called for new
regulatory State authorities for town planning, housing improvement, public
health, education, factory management, street lighting, sewerage, drainage,
sanitation, schemes for providing water, electricity, etc. Also the early 20th
century laid the foundation for a Welfare State dealing with health insurance,
unemployment allowance, sickness and old age benefits, free and compulsory
education, etc.
This vast expansion in the State functions called for a huge amount of
legislation and also for wide delegation of State functions by Parliament to
executive authorities, so also was there a need to create a body of legal
principles to control and to check misuse of these new powers conferred on the
State authorities in this new situation in the public interest. Thus, emerged
administrative law. Maitland pointed out in his Constitutional History:
"Year by year the subordinate Government of England is becoming more
and more important. We are becoming a much governed nation, governed by all
manner of councils and boards and officers, central and local, high and low,
exercising the powers which have been committed to them by modern
statutes."
But in the early 20th century following the tradition of Dicey's classic
exposition in his The Law of the Constitution, there was a spate
of attacks on parliamentary delegation culminating in the book New
Despotism by the then Chief Justice of England, Lord Hewart published in
1929. In response, the British Government in 1932 set up a committee called the
Committee on Ministerial Powers headed by Lord Donoughmore, to examine these complaints
and criticisms. However, the Donoughmore Committee rejected the argument of
Lord Hewart and accepted the reality that a modern State cannot function
without delegation of vast powers to the executive authorities, though there
must be some control on them.
Parliament could theoretically exercise this control, but in practice it
could not, since it did not have the time. Hence it became the duty of the
Judges, though unelected, to become representatives of the people and ensure
that executive authorities do not abuse their powers, but instead use it in the
public interest.
But Judges too are not supposed to act arbitrarily. Hence a body of legal
principles was created (largely by Judges themselves in their judgments and not
by Parliament) on the basis of which Judges had to exercise their powers of
judicial review of administrative action on settled principles but not
arbitrarily. It is this body of rules which is known as administrative law.
Being largely Judge-made, administrative law is not contained in any Administrative
Law Act, just as the income tax law is contained in the Income Tax Act or the
sales tax law in the Sales Tax Act. Hence some writers have criticized
administrative law as a "wilderness of single instances, and not a
separate, coherent branch of law". However, the fundamental principle
behind administrative law has always remained the same, namely, that in a
democracy the people are supreme, and hence all State authority must be
exercised in the public interest.
It is a mistake to think that administrative law is necessarily
antagonistic to efficient government. As Wade points out "intensive
administration will be more tolerable to the citizen, and the Government's path
will be smoother, where the law can enforce high standards of legality, reasonableness
and fairness".
As pointed out by Sir John Donaldson, M.R.,
in R. v. Lancashire CC, ex p Huddleston[xix] the
development of administrative law
"has created a new relationship between the courts and those who
derive their authority from the public law, one of partnership based on a
common aim, namely, the maintenance of the highest standards of public
administration".
In Tata Cellular v. Union of India[xx] (para
113) the Supreme Court laid down the following basic principles relating to
administrative law: (SCC pp. 687-88, para 94)
(1) The modem trend
points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the
manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative
decision. If a review of the administrative decision is permitted it will be
substituting its own decision, without the necessary expertise which itself may
be fallible.
(4) The terms of the invitation to tender cannot be open to judicial
scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the
tender or award the contract is reached by process of negotiations through
several tiers. More often than not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of contract. In other words, a fair
play in the joints is a necessary concomitant for an administrative body
functioning in an administrative sphere or quasi-administrative sphere. However,
the decision must not only be tested by the application of Wednesbury principle
of reasonableness (including its other facts pointed out above) but must be
free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the
administration and lead to increased and unbudgeted expenditure.
There are two kinds of controls on executive powers viz.:
(1) statutory, and
(2) non-statutory.
Statutory controls
Statutory controls are given in the statute (or rules or regulations made
under the statute). Any executive action in violation of the same will be
declared illegal by the courts, by applying the ultra vires doctrine.
Thus, where the London County Council had statutory powers to purchase and
operate tramways, it was held by the House of Lords that it had no power to run
omnibuses, which was not incidental to the running of tramways[xxi] Similarly
a local authority with the power to acquire land other than "park, garden
or pleasure house" acts in excess of jurisdiction in acquiring land which
is part of a park.[xxii]
An executive authority may also act unlawfully if it fails to perform a
duty imposed upon it by statute such as maintenance of civic services (e.g.
sewerage, drainage, water supply, etc.) by the Municipalities or other local
bodies whose duty under the statute is to maintain such services. Here also a
mandamus will issue from the courts to compel such authority to perform its
statutory duty.
Where the statute delegates a power to a particular authority, that
authority cannot sub-delegate that power to another authority or person unless
the statute permits such sub-delegation. Similarly, discretion exercised by the
prescribed authority on the direction of a higher authority would be illegal.[xxiii]
When the statute prescribes the manner of doing an act, the authority must
do it in that manner alone.[xxiv]
Difficulty, however, arises in the matter of what is called
"subjective discretion" conferred by the statute. An instance of such
subjective discretion is where the statute says that an executive authority can
take such decision "as it deems fit". Another example is where the
statute says that action can be taken or order passed where the authority has
"reasonable grounds to believe" to take that action or pass such
order e.g. Section 132 of the Income Tax Act which confers power on the
Commissioner of Income Tax to order search and seizure where he has
"reason to believe" that some person is concealing his income.
In Liversidge v. Anderson[xxv] the
Defence (General) Regulations, 1939 provided: "If the Secretary of State
has reasonable cause to believe any person to be of hostile origin or
association he may make an order against that person directing that he be
detained."
The detenu Liversidge challenged the detention order passed against him by
the Secretary of State. The majority of the House of Lords, except Lord Atkin,
held that the Court could not interfere because the Secretary of State had
mentioned in his order that he had reasonable cause to believe that Liversidge
was a person of hostile origin or association. Liversidge was delivered
during the Second World War when the executive authority had unbridled powers
to detain a person without even disclosing to the Court on what basis the Secretary
had reached to his belief. However, subsequently, the British courts accepted
Lord Atkin's dissenting view that there must be some relevant material on the
basis of which the satisfaction of the Secretary of State could be formed.
Also, the discretion must be exercised keeping in view the purpose for which it
was conferred and the object sought to be achieved, and must be exercised
within the four corners of the statute.[xxvi] Sometimes
a power is coupled with a duty. Thus, a limited judicial review against administrative action is
always available to the courts.
Non-statutory controls
Some of the non-statutory controls are:
(a) The Wednesbury principle
(b) Rules of natural justice
(c) Proportionality[xxvii]
(d) Promissory estoppel[xxviii]
(e) Legitimate expectation[xxix]
We may only consider some of these in detail.
Wednesbury Principle
Up to 1947 the law in England was that the courts could interfere only with
judicial or quasi-judicial decisions and not with administrative decisions.
This legal position changed after the famous decision of Lord Greene
in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn[xxx] in
which it was said:
“A person entrusted with discretion must, so to speak, direct himself
properly in law. He must call his attention to matters which he is bound to
consider. He must exclude from his consideration matters which are irrelevant
to what he has to consider. If he does not obey those rules he may truly be
said to be acting unreasonably. Similarly, there may be something so absurd
that no sensible person could ever dream that it lay within the powers of the
authority.” The above observation incorporates what is frequently called as
the Wednesbury principle. The courts often intervene to quash as illegal
the exercise of administrative discretion on the ground that it suffers from
"Wednesbury unreasonableness".
Thus, in Dy. Director of Consolidation v. Deen Bandhu Rai[xxxi],
the settlement officer rejected an application for permission to effect an
exchange of holdings on the grounds (i) that the granting of the permission
would entail considerable work on the part of officers of the department, and
(ii) that the applicants were big landholders. The Supreme Court held that
these reasons were not germane and pertinent for the rejection of the
petitions.
In Barium Chemicals Ltd. v. Company Law Board[xxxii] the
Secretary of the Company Law Board issued an order under Section 237(b) of the
Companies Act, 1956 appointing inspectors to investigate the affairs of a
company. Section 237(b) of the Act authorized such an appointment to
investigate the affairs of a company "if, in the opinion of the Central
Government" there were circumstances suggesting
(a) that the business of the company was being conducted with the intent to
defraud its creditors, members, or any other person;
(b) that the persons concerned in the formation of the company or the
management of its affairs had been guilty of fraud or misconduct towards the
company or towards any of its members;
(c) that the members of the company had not given out all the information
with respect to its affairs. The Supreme Court held that before the discretion
conferred by Section 237(b) of the Companies Act can be exercised, there must
exist circumstances which in the opinion of the authority suggest the grounds
set out in the statute.
Unfettered discretion would also be inconsistent with Article 19 of the
Constitution which permits only reasonable restrictions on the rights conferred
by that Article. Similarly, it would also be violative of Article 14 which
prohibits arbitrariness.[xxxiii] In Shalini
Soni v. Union of India[xxxiv] the
Supreme Court observed: (SCC p. 549, para 7)
"It is an unwritten rule of the law, constitutional and
administrative, that whenever a decision-making function is entrusted to the
subjective satisfaction of a statutory functionary, there is an implicit
obligation to apply his mind to pertinent and proximate matters only, eschewing
the irrelevant and the remote."
In Rohtas Industries v. S.D. Agarwal[xxxv],
an investigation into the affairs of a company was ordered under Section 237 of
the Companies Act, 1956. The Company Law Board took into account the fact that
there were complaints of misconduct against one of the leading directors of the
company in relation to other companies subject to his control for which he was
being prosecuted. The Court held that this factor was irrelevant in
establishing fraud.
The Wednesbury principle is often misunderstood to mean that any
administrative decision which is regarded by the Court to be unreasonable must
be struck down. The correct understanding of the Wednesbury principle is that a
decision will be said to be unreasonable in the Wednesbury sense if (i) it is
based on wholly irrelevant material or wholly irrelevant consideration, (ii) it
has ignored a very relevant material which it should have taken into
consideration, or (iii) it is so absurd that no sensible person could ever have
reached to it.
As observed by Lord Diplock in Council of Civil Service Unions v. Minister
for the Civil Service[xxxvi],
a decision will be said to suffer from Wednesbury unreasonableness if it is
"so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided
could have arrived at it."
An administrative decision cannot be struck down by the Judge merely
because he disagrees with the administrator.[xxxvii] There
may be degrees of unreasonableness, and the Wednesbury unreasonableness refers
only to the extreme degree of unreasonableness which no sensible
person could reach after taking into account the relevant materials or relevant
considerations. Thus, in W (An infant), In Re,[xxxviii] Lord
Hailsham observed:
"Two reasonable parents can perfectly reasonably come to opposite
conclusions on the same set of facts without forfeiting their title to be
regarded as reasonable. ... Not every reasonable exercise of judgment is right,
and not every mistaken exercise of judgment is unreasonable."
Hence, the Wednesbury unreasonableness means "unreasonableness verging
on absurdity" as observed by the House of Lords in R v Hillingdon LBC ex parte Puhlhofer.[xxxix]
Rules of Natural Justice
The rules of natural justice were originally only two viz.:
1. Audi alteram partem i.e. the person(s) to be affected by an
order of the authority should be heard before the order is passed, and
2. The rule against bias.
Subsequently, some more rules of natural justice are in the process of
development e.g. that the administrative authority should give reasons for its
decisions, particularly when the decisions affect the rights and liabilities of
the citizens.
It must, however, be made clear that the rules of natural justice are
flexible, and are not a straitjacket formula.[xl] In
exceptional cases not only can they be modified but even excluded altogether.[xli] Natural
justice is not an unruly horse. If fairness is shown, there can be no complaint
of breach of natural justice.[xlii]
As regards the rule audi alteram partem, up to 1964 the legal position
in England was that in judicial and quasi-judicial proceedings opportunity of
hearing had to be given, but it was not necessary to do so in administrative
proceedings. This legal position changed in Ridge v. Baldwin[xliii] in
which the House of Lords held that opportunity of hearing had to be given even
in administrative proceedings if the administrative order would affect the
rights and liabilities of the citizens. This view of the House of Lords was
followed by the Supreme Court in State of Orissa v. Dr. Binapani
Dei[xliv] and State
of Maharashtra v. Jalgaon Municipal Council[xlv] wherein
it was held that administrative orders which involve civil consequences have to
be passed consistently with the rules of natural justice. The expression
"civil consequences" means where rights and liabilities are affected.
Thus, before blacklisting a person he must be given a hearing.[xlvi]
It may be noted that even if the statute does not expressly require that
opportunity of hearing must be given before passing an order which affects rights
and liabilities, the courts have held that such opportunity of hearing must be
given unless expressly excluded by the statute.[xlvii] Thus,
natural justice is an implied requirement of administrative decisions which
affects rights and liabilities.
It may be mentioned that a hearing need not always be an oral hearing. In
certain circumstances, the Administrator can only issue a show-cause notice to
the party likely to be affected and on his/her reply can pass the decision
without giving a personal hearing to the parties. However, in certain
circumstances where the party may be very seriously affected the courts have
insisted that an oral hearing with opportunity of presenting witnesses and
cross-examining the witnesses on the other side must be given.
Similarly, the principle that "no man should be a judge in his own
cause" disqualifies an Administrator from giving a decision which affects
the rights and liabilities, if he is biased.
It may, however, be pointed out that in H.C.
Narayanappa v. State of Mysore[xlviii] the
Supreme Court observed that the Minister or officer invested with the power to
hear objections to a scheme is acting in his official capacity and unless there
is reliable evidence to show that he is actually biased, his decision will not
be liable to be called in question merely because the objections to the
government scheme are heard by the government itself or by its officers.
The requirement to give reasons in administrative decisions which affect
rights and liabilities has been held to be mandatory by the Supreme Court
in S.N. Mukherjee v. Union of India.[xlix] This
reduces the chances of arbitrariness on the part of the authority, as the
reasons recorded by him are subject to judicial scrutiny by the higher courts
or authorities.
Before concluding, it must also be mentioned that there are certain
administrative matters which are inappropriate for judicial review. One of
these is policy decisions of the government or of the executive authority which
ordinarily should not be interfered with by the courts unless they are clearly
violative of the statute or shockingly arbitrary.[l] In a
case, the Central Government had initially decided to locate the headquarters
of South Western Railways at Bangalore. Later it was decided to locate it at
Hubli, and this decision was challenged. The Supreme Court held that it was a
policy decision and hence the Court cannot interfere, even if the decision was
political.[li]
Similarly, maintenance of law and order is an executive function, and the
courts should not ordinarily interfere with the same.[lii] Apart from that, practically every legal
system recognizes certain subjects as inappropriate for judicial review e.g.
foreign affairs, declaration of wars, etc.
05. Remedies in Judicial Review
01. Constitutional Remedies
Judicial control of
administrative action provides a fundamental safeguard against the abuse of
power. Since our Constitution was built upon the deep foundations of rule of
law, the framers of the Constitution made sincere efforts to incorporate
certain Articles in the Constitution to enable the courts to exercise effective
control over administrative action. Let us discuss those articles of the
constitution: -
(a) Under article
32, the Supreme Court has been empowered to enforce fundamental rights guaranteed
under Chapter III of the Constitution. Article 32 of the Constitution provides
remedies by way of writs in this country. The Supreme Court has, under Article
32(2) power to issue appropriate directions, or orders or writs, including
writs in the nature of habeas corpus, certiorari, mandamus, prohibition and
quo- warranto The court can issue not only a writ but can also make any order
or give any direction, which it may consider appropriate in the circumstances.
It cannot turn down the petition simply on the ground that the proper writ or
direction has not been prayed for.
(b) Under article
226 concurrent powers have been conferred on the respective High Courts for the
enforcement of fundamental rights or any other legal rights. It empowers every
High Court to issue to any person or authority including any Government, in
relation to which it exercises jurisdictions, directions, orders or writs
including writs of habeas corpus,. mandamus, prohibition, quo warranto and
certiorari.
(c) Under Article
136 the Supreme Court has been further empowered, in its discretion, to grant
special leave to appeal from any judgment, decree, determination, sentence or
order by any Court or tribunal in India. Article 136 conferred extraordinary
powers on the Supreme Court to review all such administrative decisions, which
are taken by the administrative authority in quasi-judicial capacity.
An order made by a
quasi-judicial authority having jurisdiction under an Act which is intra virus
is not liable to be questioned on the sole ground that the provisions of the
Act on the terms of the notification issued there under have been
misinterpreted. The rule of maintainability of petition under Article 32 held
above is subject to three exceptions.
First, if the
statute for a provision thereof ultra vires any action taken there under by a
quasi-judicial authority which infringes or threatens to infringe a fundamental
right, will give rise to the question of enforcement of that right and petition
under Article 32 will lie.
Second, if a
quasi-judicial authority acts without jurisdiction or wrongly assumes
jurisdiction by committing error as to a right, the question of enforcement of
that arises and a petition under Article 32 will lie even if the statute is
intra vires.
Third, if the
action taken by a quasi-judicial authority is procedurally ultra virus, a
petition under Article 32 would be competent.
Remedy through
Special Leave to appeal under article 136. Articles 132 to 135 of the
Constitution deal with ordinary appeals to the Supreme Court in constitutional,
civil and criminal matters. Article 136 deals with a very special appellate
jurisdiction conferred on the Supreme Court. Under this provision the Supreme
Court has power to grant in the discretion, special leave to appeal from
(a) Any judgment,
decree, determination or order;
(b) In any cause or
matter;
(c) An order passed
or made by any court or tribunal in the territory of India.
Remedies for enforcing administrative law are available before the higher
judiciary e.g. the Supreme Court under Article 32 of the Constitution and the
High Courts under Article 226 of the Constitution. The higher judiciary can
issue writs of certiorari, mandamus, habeas corpus, prohibition and quo
warranto and also issue orders or directions "in the nature of
writs".
The language used in Articles 32 and 226 is thus wide, and it has been held
that the Indian courts have wider powers than the British courts in issuing
writs.[liii] Article
226 confers powers on the High Court not only to issue prerogative writs, but
also issue order or direction to enforce fundamental and other legal rights.[liv] Hence
the High Courts in India are not confined to the procedural technicalities of
the English rules.[lv] The
Court can also mould the relief to meet the peculiar and complicated
requirements of this country, provided the High Court does not contravene any
provisions of the Constitution or the law.
A writ can be issued by the High Courts and the Supreme Court not only to
the Government, but also to what are called instrumentalities of the State. A
writ of certiorari will be issued when the court finds that there is an error
of law apparent on the face of record. A mandamus will be issued to a public
authority to compel it to do its public duty.
In the grants of public contracts the courts usually (though not
invariably) insist that such grants be made by public auction/public tender
after advertising the same in well-known newspapers having wide circulation so
that there is transparency and compliance with Article 14 of the Constitution.
Such grants by private negotiation are ordinarily disapproved.[lvi]
A writ can be issued to enforce the statute or statutory rule or order.
However, a question may arise whether it can be issued to enforce non-statutory
government orders or executive instructions. The earlier decisions of the
Supreme Court were of the view that no mandamus will issue to enforce mere
administrative instructions which have no statutory force.[lvii] However,
subsequently, certain exceptions have been carved out to the above principle.
In certain exceptional circumstances, mandamus can be issued to enforce a
non-statutory administrative order. Some of such exceptions are:
(i) Where the principle of promissory estoppel applies e.g. in Union
of India v. Indo Afghan Agencies Ltd,[lviii] Motilal
Padampat Sugar Mills Co. Ltd. v. State of U.P.[lix],
etc.
(ii) Where the principle of legitimate expectation applies.[lx]
(iii) In service matters, where there are no statutory rules,
administrative instructions can fill in the gap, and are enforceable.[lxi]
(iv) In many matters e.g. awards of public contracts, an executive
authority must be rigorously held to the standards by which it professes its
actions to be judged, even if such actions are non-statutory.[lxii]
02. Statutory Review
The method of
statutory review can be divided into two parts:
i) Statutory
appeals
There are some
Acts, which provide for an appeal from statutory tribunal to the High Court on
point of law. e.g. Section 30 Workmen’s Compensation Act, 1923.
ii) Reference to
the High Court or statement of case
There are several
statutes, which provide for a reference or statement of case by an
administrative tribunal to the High Court. Under Section 256 of the Income-tax
Act of 1961 where an application is made to the Tribunal by the assessee and
the Tribunal refuses to state the case the assessee may apply to the High Court
and if the High Court is not satisfied about the correctness of the decision of
the Tribunal, it can required to Tribunal to state the case and refer it to the
Court.)
03. Ordinary Remedies or Equitable Remedies
Meaning of Equity
Before we discuss
equitable remedies, it is necessary for us to know something about equity.
Since the administration of justice has begun on the basis of law in the world,
a class of society has always been against the rigidity of law. This class of
society is of the opinion that howsoever mature and legally skilled men may
make the laws, yet they cannot experience the circumstances which the judges
may have to face in future. The circumstances in which the provisions of law
may prove to be unjust for the people if is necessary to make the provisions of
law flexible, and injustice caused by such rigidity of law should be stopped.
Equity is based on this consideration. Equity is a voice against injustice
caused by rigidity of low. Equity, which is not a synonym of natural justice,
demands that justice should be made in accordance with the circumstances.
Equities a new and independent system of law which developed in England. It has
its own history and origin. It made an important contribution in the English
system of law as a supplementary of main legal system till 1873, when it was
merged in the common law According to Ashburner. “Equity is a word which has
been borrowed by law from morality and which was acquired in law a strictly
technical meaning.”
Apart from the extra-ordinary
(Constitutional Remedies) guaranteed as discuss above there are certain
ordinary remedies, which are available to person under specific statutes
against the administration. The ordinary courts in exercise of the power
provide the ordinary remedies under the ordinary law against the administrative
authorities. These remedies are also called equitable remedies. This includes:
i) Injunction
ii) Declaratory
Action
iii) Action for
damages.
In some cases where
wrong has been done to a person by an administrative act, declaratory judgments
and injunction may be appropriate remedies. An action for declaration lies
where a jurisdiction has been wrongly exercised. Or where the authority itself
was not properly constituted. Injunction s issued for restraining a person to
act contrary to law or in excess of its statutory powers. An injunction can be
issued to both administrative and quasi-judicial bodies. Injunction is highly
useful remedy to prevent a statutory body from doing an ultra vires act, apart from
the cases where it is available against private individuals e.g. to restrain
the commission or torts, or breach of contract or breach of statutory duty.
Before discussing
these remedies let us find out what is the meaning of equity.
04. Injunction
An injunction is a
preventive remedy. It is a judicial process by which one who has invaded or is
threatening to invade the rights of another is restrained from continuing or
commencing such wrongful Act. In India, the law with regard to injunctions has been
laid down in the Specific Relief Act, 1963. Injunction may be prohibitory or
mandatory.
Prohibitory
Injunction
Prohibitory
injunction forbids the defendant to do a wrongful act, which would infringe the
right of the plaintiff. A prohibitory injunction may be interlocutory or
temporary injunction or perpetual injunction.
Interlocutory or
temporary injunction
Temporary
injunctions are such as to continue until a specified time or until the further
order of the court. (S. 37 for the specific Relief Act). It is granted as an
interim measure to preserve status quo until the case is heard and decided.
Temporary injunction may be granted at any stage of a suit. Temporary
injunctions are regulated by the Civil Procedure Code. Temporary injunction is
provisional in nature. It does not conclude or determine a right. Besides, a
temporary injunction is a mere order. The granting of temporary injunction is a
matter of discretion of the court.
Perpetual
injunction
A perpetual
injunction is granted at the conclusion of the proceedings and is definitive of
the rights of the parties, but it need not be expressed to have perpetual
effect, it may be awarded for a fixed period or for a flexed period with leave
to apply for an extension or for an indefinite period terminable when
conditions imposed on the defendant have been complied with; or its operation
may be suspended from a period during which the defendant is given the
opportunity to comply with the conditions imposed on him, the plaintiff being
given leave to reply at the end of that time.
Mandatory
injunction
When to present the
breach of an obligation, it is necessary to compel the performance of certain
acts which the court in capable of enforcing, the court may in the discretion
grant an injunction to prevent the breach complained of an also to compel
performance of the requisite acts. (S. 39 of the Specific Relief Act.) The
mandatory injunction may be taken as a command to do a particular act to
restore things to their former condition or to undo, that which has been done.
It prohibits the defendant from continuing with a wrongful act and also imposes
duty on him to do a positive act. For example construction of the building of
the dependent obstructs the light for which the plaintiff is legally entitled.
The plaintiff may obtain injunction not only for restraining the defendant from
the construction of the building but also to pull down so much of the part of
the building, which obstructs the light of the plaintiff.
05. Declaration (Declaratory Action)
Declaration may be
taken as a judicial order issued by the court declaring rights of the parties
without giving any further relief. Thus a declaratory decree declares the
rights of the parties. In such a decree there is no sanction, which an ordinary
judgment prescribes same sanctions against the defendant. By declaring the
rights of the parties it removes the existing doubts about the rights and
secures enjoyment of the property. It is an equitable remedy. Its purpose is to
avoid future litigation by removing the existing doubts with regard to the
rights of the parties. It is a discretionary remedy and cannot be claimed as a
matter of right.
06. Action for Damages
If any injury is
caused to an individual by wrongful or negligent acts of the Government servant
the aggrieved person can file suit for the recovery of damages from the
Government concerned. This aspect of law has been discussed in detail under the
topic liability of Government or state in torts.
07. Other Remedies
There are some
other remedies available for private law reviews by subordinate Courts.
03. SCOPE, EXTENT AND TYPES OF PRIVATE LAW REVIEW IN ADMINISTRATIVE ACTION
01. Scope and Extent of Private Law Review
The general rule
of law is that when an infringement of a legal right is alleged, a cause of
action arises, and unless there is a bar to the entertainment of the suit, the
ordinary civil courts are bound to entertain the claim. To enable a person to
file a civil suit s. 9 of the Code of Civil Procedure provides that the Courts
shall have jurisdiction to try "all suits of civil nature excepting suits
of which their cognizance is either expressly or impliedly barred." This
provision confers jurisdiction on civil courts to hear and decide all disputes
of a civil nature. But this is circumscribed by the rider that a suit barred
expressly or implicitly may not lie. A suit may be barred impliedly or
expressly by a statute against administrative authority. Further suits against
the Government for damages arising out of a tort or breach of a contract though
could be filed under s. 9, C.P.C., are subject to a few constitutional
restrictions and this matter is again examined in the next two chapters. If
there is no implied or express bar, a civil suit can be filed against an
administrative authority and proper relief sought against it. For example, a
suit may be filed for refund of tax which has been paid under a law, which is
later declared unconstitutional and the plaintiff has not passed on the burden
of tax to others.[lxiii]
In many situations
involving wrongs done to persons by administrative authorities, damages may not
be an appropriate remedy, or the person concerned may be more interested in
making the administration comply with the law in question so that either it
desists from taking, an action which may be injurious to the person concerned,
or it rights a wrong done to him. Suits for injunctions and declarations under
the Specific Relief Act, 1963 are the remedies appropriate to achieve the
desired ends. These remedies have been considered below.
The remedies
mentioned here, viz.; a civil suit to claim damages, or a suit for an injunction
or a declaration, are essentially private law remedies which have been pressed
into service in the area of public law as well.
02. Types of Private Law Review
Private Law Review as we have already seen, covers all judicial reviews
except Public Law Reviews whose remedies are mostly by way of writs. The
remedies of Private Law Reviews are ordinary or equitable remedies. They may be
classified as:
01. Injunctions
02. Declarations
03. Action for Damages
04. Other Remedies
04. INJUNCTIONS
01. Injunction in General
An injunction is an
order made by the court to stop a public body from acting in an unlawful way. Less
commonly, an injunction can be mandatory, that is, it compels a public body to
do something. Where there is an imminent risk of damage or loss, and other
remedies would not be sufficient, the court may grant an interim injunction to
protect the position of the parties before going to a full hearing. If an interim
in injunction is granted pending final hearing, it is possible that the side which
benefits from the injunction will be asked to give an undertaking that if the
other side is successful at the final hearing, the party which had the benefit
of the interim protection can compensate the other party for its losses. This
does not happen where the claimant is legally aided. An injunction can be
temporary or permanent, prohibitory or mandatory.
Through an
injunction, a public authority may be commanded to do a thing which the law
requires it to do, or to refrain from doing something which is illegal. An injunction
can be issued to an administrative or a quasi-judicial body. An injunction is
primarily private law remedy, but is used in the area of public law as well to
prevent the administration from breaking the law.
Before the
Constitution came into operation, under s. 45 of the Specific Relief Act, 1877,
each of the three High Courts of Bombay, Calcutta, and Madras could issue orders,
in the nature of mandamus, to public authorities, that is, they could
"make an order requiring any specific act to be done or forborne" by
a public authority within the local limits of its ordinary original civil
jurisdiction. Under this provision, the order could be issued only to such
authorities as were located within the three Presidency Towns and not in the
mofussil. No other Court could issue such an order.
There was a
historical reason for the three High Courts to enjoy such a power. The three
High Courts enjoyed the power to issue the writ of mandamus as
inheritors of the jurisdiction or their predecessors, the Supreme Courts,
established earlier. The Supreme Courts
had the same jurisdiction and authority as the judges of the Court of King's
Bench in England. As the three High Courts had absorbed into themselves the Supreme
Courts, they secured their powers and became entitled to issue the writ within
the same territorial ambit as the Supreme Courts had been entitled to. S. 45 of
the Specific Relief Act, 1877 gave statutory recognition to this position by
conferring power on them to issue mandatory injunctions against public
authorities. The same Act through s. 50 enjoined upon all the High Courts not
to issue the writ of mandamus.
After the
Constitution came into operation, it became redundant to retain the peculiar position
of the three High Courts as Art. 226 of the Constitution conferred power on all
the High Courts in India to issue writs. In fact, the Adaptation of Laws Order,
1950 provided in s. 50 of the Specific Relief Act of 1877 that "Nothing in
the Chapter shall affect the power conferred on a High Court by clause (1) of article 226 of the Constitution." The Law
Commission of India recommended the abolition of s. 45 of the Act as it had become nugatory after the Constitution.[lxiv]
Consequently, s. 45 was dropped when the Specific Relief Act of 1963 was
enacted. Apart from s. 45, sections 54 and 55 of the Specific Relief Act, 1877
conferred a general power on the courts to issue perpetual and mandatory injunctions
respectively. Under sections 54 and 55, a suit for the grant of injunction
normally had to be filed in the lower court from whose decision
appeal could be preferred to the High Court by the dissatisfied party. Sections
45 and 55 were regarded as being independent of each other and all the High
Courts could issue mandatory injunctions under section 55. The remedy provided
in section 45 was held to be in the nature of a summary remedy, which in no way
interfered with regular suits.[lxv]
At present, the law
relating to injunctions is laid down in the Specific Relief Act, 1963 which has
repealed the corresponding Act of 1877. Injunctions are classified into three categories;
temporary, perpetual, and mandatory. Temporary and perpetual Injunctions are
preventive in character. According to s. 36, preventive relief is granted, at
the discretion of the Court, by injunctions - temporary or perpetual. According
to s. 37(1), a temporary injunction is to continue until a specified time, or
until further order of the Court; it may be granted at any stage of a suit, and
is regulated by the Code of Civil Procedure. Rules 1 and 2 of Order 39 of the C.P.C.,
deal with temporary injunctions. Such an injunction is grantable at the
instance of the plaintiff at the discretion of the court if it is proved to its
satisfaction that unless the defendant is immediately restrained by an
injunction, irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The
purpose of a temporary Injunction is, thus, to maintain the status quo pending,
hearing and disposal of the suit on merits till further orders are made by the
court. A court grants an interim injunction if three conditions are satisfied: (i)
making out a prima facie case; (ii) showing that the balance of
convenience is in the applicant's favour in that the refusal of the injunction
would cause greater inconvenience to him; and (iii) whether on refusal
of the injunction he would suffer irreparable loss. In Chandulal v Delhi
Municipal Corporation[lxvi] the
court refused to grant an interim injunction against the Corporation in a
matter of cancellation of the plaintiff's licence to use a kiosk. The Court pointed
out that such an injunction can be granted only if the plaintiff shows that he has a legal right which has been infringed. Granting of an injunction is a
matter of discretion with the Court and in its exercise the Court has to
satisfy itself whether the plaintiff has a triable case. While seeking an
interim injunction, plaintiff has to disclose existence of a prima facie case.
Prima facie case is not to be confused with prima facie title.
Non grant of injunction must result in irreparable injury to the party seeking relief.
The balance of convenience must be in favour of grant of injunction. As a
principle ex parte injunction would be granted under exceptional circumstances.[lxvii]
While dealing with a prayer of temporary injunction, the court is not to deal the
case as if it is deciding the case finally. The existence of a prima facie case
is enough.[lxviii] The
purpose of grant of temporary injunction is to lessen the risk of irreparable injury and injustice, which cannot be compensated
in terms of money, which would result from the violation by the defendant of
some right of the plaintiff.[lxix]
The object of
grant of injunction is to prevent the threatened injury or breach of the right.[lxx] In Dorab
Cawasji's case, the Supreme Court laid down the
criterion in cases wherein an ex parte injunction can be granted.[lxxi]
The aforesaid principle was approved in Matro Martins case.[lxxii]
The court should not grant the relief of mandatory injunction in temporary form
without assigning any special reason or without recording a finding that a
prima facie case is made out. Interlocutory injunction being an equitable
relief is in the discretion of the court. The conduct of the party seeking the injunction
has to be fair.[lxxiii]
When the balance
of convenience lies in favour of the defendant, an interim injunction cannot be
granted in favour of the plaintiff on the ground that there is a prima facie
case in his favour. The principle of balance of convenience cannot be ignored in such a case.[lxxiv]
The court has no
jurisdiction under section 41(b) of the Specific Relief Act. 1963 or under its
inherent jurisdiction, under its inherent powers or under section 151 of the
Code of Civil Procedure, 1908 to grant temporary injunction restraining a
person from instituting any proceedings which such person is entitled to institute.[lxxv]
A perpetual
injunction can be granted, under s. 37(2), by a decree made after the hearing
and upon the merits of the suit. According to s. 38(1), it may be granted to the
plaintiff to prevent the breach of an obligation existing in his favour whether
expressly or by implication. Through a perpetual injunction, the defendant is
perpetually enjoined from assertion of a right, or from the commission of an
act, which would be contrary to the rights of the plaintiff. Ordinarily, an
injunction is not issued to prevent breach of a contract because a contract is
usually not specifically enforceable and damages may be a sufficient recompense
for breach of a contract. If, however, there exists no standard to ascertain
damages caused by the non-performance of a contract, or where the act agreed to
be done is such that compensation in money for its non-performance would not afford adequate relief an injunction may be
granted to prevent its breach.[lxxvi]
When the defendant invades or threatens to invade the plaintiff's right to, or
enjoyment of, property, the court may grant a perpetual injunction, inter alia,
where there exists no standard for ascertaining the actual damage caused,
or likely to be caused, by the invasion, or where the invasion is such that
compensation in money would not afford adequate relief, or where the injunction
is necessary to prevent multiplicity of judicial proceedings.
A mandatory
injunction not only involves prohibition but also imposes a positive duty on
the defendant to do something. According to s. 39, when to prevent the breach of an obligation, it is necessary to compel the
performance of certain acts which the court is capable of enforcing. The Court
may, in its discretion, grant an injunction to prevent the breach complained
of, and also to compel performance of the requisite acts. Under s. 40, the
plaintiff in a suit for perpetual or mandatory injunction can also claim damages either in addition to, or in
substitution of, such injunction. The Court may, in its discretion, award
damages.
An injunction is
pre-eminently a discretionary remedy, but the Court has to exercise its
discretion judicially. Since injunction is an equitable remedy, it may be refused,
inter alia, when the conduct of the plaintiff is such as to disentitle
him of the assistance of the Courts (S 41 (i)) or when equally efficacious
relief can be obtained by any other usual mode of proceedings [s. 41(h)].[lxxvii] For
instance, an injunction will not be issued when damages would be an adequate
remedy to the aggrieved party,[lxxviii]
as in the case of a breach of contract. As regards alternative legal remedy, it
will differ from case to case whether the law provides for an equally
efficacious remedy through usual mode of proceedings, and no hard and fast rule
can be laid down in this regard.[lxxix]
The stress is upon the words "equally efficacious" and "usual
mode of proceedings.” In Montogemery Municipality V. Sant Singh[lxxx], the Municipal Committee imposed a tax
on a person, on whom it could not be imposed under the Municipal Act, and
committed a breach of obligation, implicitly existing in his favour. It was held
that the person aggrieved could relieve himself from harassment by invoking the
relief of injunction, as there was no "other usual mode of
proceeding" available to him which could be considered to be "equally
efficacious." Where a Municipal Committee issued a notice to a house-owner
asking him to remove certain encroachments on the municipal land, a suite for
injunction against the municipality would lie as there was no other efficacious
remedy open to him.[lxxxi]
On the whole, in practice, this provision has hardly proved to be a significant
restriction on the Court's power to issue injunction.[lxxxii]
In Vaish Degree College v. Lakshmi Narain[lxxxiii], the Supreme Court emphasized that the
relief of injunction is purely discretionary and the plaintiff cannot claim it
as a matter of right. It is more in the nature of an equitable relief than a
legal remedy. The Court grants the relief according to legal principles and ex-debito
justitiae. The Court must keep in mind the principles of justice and fair play and should exercise the discretion only if the ends
of justice require it. The Court refused to grant the relief to the
plaintiff-teacher as it was a matter of employer-employee relationship, even though
regulated by statute, and it would have caused undue hardship to the college
authorities. Instead, the Court awarded some monetary compensation to the
plaintiff. The result reached by the court in the instant case is not happy. It
is coloured by the private law approach that a service contract is not
specifically enforceable. But this approach should not apply when there is some statutory protection given to the
employee or when there is an element of public employment in service contract. This
approach is depicted by Sirsi Municipality v. CKF Tellis[lxxxiv] where in a suit for declaration the
Court held that the order of the municipality was void when it failed to carry
out its mandatory duty, embodied in a rule, in terminating the services of an
employee . The reason for this was that a municipality was a statutory body and
service therein had elements of public employment. Colleges are affiliated to
universities which are statutory bodies: the colleges function under statutory rules made by the concerned university and
security of tenure of teacher is an accepted value at the present day.
The Specific Relief Act of 1877 contained a provision [so
56(d)] laying down that an injunction could not be granted "to interfere
with the public duties of any department of the Central Government or any State
Government.” In actual practice, however, this hardly operated as a limitation
on the Courts in the matter of issuing injunctions. The clause did not immunize
ultra virus actions of the government.[lxxxv] In one case, a District Magistrate was
held not to be a department of the government and, consequently, the clause did
not bar issue of injunction to him.[lxxxvi]
As a result of the comments of the Law Commission that such a principle
"is inconsistent with the principal embodied in the second proviso to Article
361(1)" of the Constitution. Clause (1) of article 361 protects the
official acts of the President and Governors. The proviso provides that
"nothing in this clause shall be construed as restricting the right of any
person to bring appropriate proceedings against the Government of India or the
Government of a State." This
restrictive clause his now been dropped and is not to be found in the present
Act.
02. Injunction compared with Mandamus
Basically, the nature of all
injunctions is very much like the writ of mandamus. Both are orders
passed by the Court asking an administrative authority to perform a legal duty,
or to desist from doing an illegal act. Disregard of both operates as contempt
of the Court. In both, the Courts would not extend their protection of there is
an alternative legal remedy available to the individual.
An injunction has several advantages
over mandamus. First, a suit for injunction can be filed in the district
courts, whereas a petition for mandamus has to be made to the High
Court. For an individual, therefore, injunction may be, as a practical matter,
a less expensive remedy, and more convenient if he is located at a place away
from the High Court. Secondly, while oral evidence can be taken by the courts
in a suit for injunction, the High Courts in writ petitions are generally
averse to investigating disputed questions of fact. The scope of judicial
review is, therefore, wider in a suit for injunction. Thirdly, claims for
injunction and damages may be combined in the same suit. Courts do not award
damages while entertaining
applications for mandamus.
In spite of these advantages of an
injunction, it is not as effective and popular a remedy as mandamus. This
is due to several reasons. First, mandamus is a constitutional remedy
and no statute can exclude the jurisdiction of the High Courts to grant it. On
the other hand, since injunction is a statutory remedy, a statute may bar the Courts from entertaining suits for
injunction.[lxxxvii]
Another limitation from which the
remedy by way of injunction suffers is the notice requirement prescribed by s.
80 of the Civil Procedure Code,[lxxxviii]
though the rigours of this requirement have been somewhat lessened by the Code
of Civil Procedure (Amendment) Act, 1976. Thirdly, injunction is a dilatory remedy as the District
Courts take long in disposing of cases. A writ petition, on the other hand, is
disposed of by the High Court comparatively expeditiously. This factor attracts
people to resort to writs
rather than to injunctions.[lxxxix]
05. DECLARATIONS
A declaration is a
judgment by the Administrative Court which clarifies the respective rights and obligations
of the parties to the proceedings, without actually making any order. Unlike
the remedies of quashing, prohibiting and mandatory order the court is not
telling the parties to do anything in a declaratory judgment. For example, if
the court declared that a proposed rule by a local authority was unlawful, a declaration
would resolve the legal position of the parties in the proceedings.
Subsequently, if the authority were to proceed ignoring the declaration, the
applicant who obtained the declaration would not have to comply with the
unlawful rule and the quashing, prohibiting and mandatory orders would be
available.
01. Declaratory Actions
A declaratory action or decree denotes that action of the
Court wherein it declares the rights of the parties without living further
relief. It differs from an ordinary judgment which can be enforced through
execution proceedings. A declaratory judgment does not prescribe any sanction
against the defendant. The rationale behind such a judgment is that coercion is
not always necessary for obeying a verdict of a court and often the parties
would obey the law without any sanction. This is particularly true of public
authorities. If the existing doubt regarding the legal rights is removed, then
it can be supposed that public authorities would act according to law. In fact,
every decision against the government is a sort of declaration because it is up
to it to obey the same or not, the judiciary possessing no physical power of
its own to enforce obedience.
The purpose of declaration is to avoid
future litigation by removing existing causes or controversies, e.g., where
a man is in possession of some property under a title about which there is
sonic legal doubt, he may obtain a declaration in his favour to clear his
title. Or, to take another illustration, where there exists a dispute about the
status of two persons as husband and wife and the legitimacy of the children,
declaration would be an appropriate remedy to clarify the legal position. A
declaratory action is particularly
useful where a legal dispute exists but no positive wrong has been committed or
has taken place entitling a party to claim coercive relief. As de Smith states,
through declaration "inconvenience and the prolongation of uncertainty are
avoided.”
It is important to remember that courts
do not give advisory opinions or opinions on hypothetical questions and it is
essential that some genuine dispute should exist, though no violation of the
rights of either party may have taken place, before a court will give a
declaratory relief. In Bai Shri Vaktuba v. Thakore[xc], the
plaintiff-husband filed a suit for declaration that a two year old boy
allegedly born to the defendant wife was not his son. An objection was taken
that the suit was premature as no maintenance and rights in the plaintiff's
estate were being claimed against the plaintiff and that the interest of the
minor should not be prejudiced by deciding a question which would arise in
future. The court did not accept the contention as the wife had been making an
open assertion that the boy was plaintiff's son. In the opinion of the Court,
the infant's case could be sufficiently placed before the Court by a duty
constituted guardian. To hold otherwise would amount to holding that the
plaintiff, openly threatened with this serious claim, is condemned to
inactivity for, it may be 20 or 30 years, leaving it to the claimant to file
his suit at such time as would most assist him taking the plaintiff at a
disadvantage." Further, questions of birth and paternity should be
determined while the evidence is still available.
It was in the year 1859 that the Civil
Procedure Code, 1859 provided in s. 15 that no suit would be open to objection
on the ground that a mere declaratory decree or order was sought thereby, and
that it would be lawful for the civil courts to make binding declaration of
rights without granting consequential relief. Subsequently, provision was made in s. 42 of the
Specific Relief Act of 1877 for declaratory decrees and the provision in the
C.P.C. was repealed. Now declaratory relief can be granted under s.
34 of the Specific Relief Act, 1963. Apart from this provision, it is usual for
the courts, as seen in a previous chapter, to pass declaratory orders by which
they declare an administrative action, rule or statute ultra vires without
giving further relief in writ petitions under Arts. 32 and 226.
02. Declarations under Specific Relief Act etc.
S. 34 of the
Specific Relief Act, 1963 provides that any person entitled to any legal
character, or to any light as to any property, may institute a suit against any
person, denying, or interested to deny, his title to such character or right,
and the Court may in its discretion make therein a declaration that he is so
entitled, and the plaintiff need not in such suit ask for any
further relief. No court would, however, make any such declaration where the
plaintiff, being able to seek further relief than a mere declaration of title,
omits to do so. To seek a declaration, therefore, two things are essential:
(1) The plaintiff is entitled to any legal
character, or any right as to any properly, and the same is being denied by any
person.
(2) The plaintiff
is not able to seek further relief in addition to declaration. But if he is
able to seek a further relief, then the Court would not grant a mere
declaration.
Under s. 35 of the
Act, a declaration made by the court is binding only on the parties to the suit
and persons claiming through them.
There was a
conflict of judicial opinion whether the provisions made by the Specific Relief
Act are exhaustive of the declaratory actions or whether a court could grant a
declaration outside the Act. In some cases,[xci]
the view was taken that it was not exhaustive and declarations could be granted
independently of the section, but in others a contrary view was taken.[xcii]
The Supreme Court in Ramaraghava Reddy v. Seshu Reddy[xciii] preferred
the first view. A worshipper filed a suit for declaration that certain
properties belonged to the deity. Here it is clear that the worshipper himself
was not claiming any legal character or right in the property, and, therefore,
the suit did not fall within the purview of s. 34. The court held that s. 34
was not exhaustive of declaratory decrees and the
worshipper was entitled to maintain the suit. Such a suit lies independently of
s. 34 and is governed by the general provisions of the CPC, like s. 9, or Order
7, rule 7.
"Legal character"
means a position recognized by law. Legal character is synonymous with legal status,[xciv]
"Legal character" in s. 34 includes the status of a person and
would Cover many situations, where a legal right of a person is infringed by an
illegal or ultra vires action of an administrative authority, e.g., a
right to vote or stand as a candidate at a municipal election, Thus, a
declaration can be sought that the plaintiff's nomination paper at a municipal
election has been illegally rejected and that the defendant has not been duly elected
as a member of the Municipal Committee.[xcv]
Similarly, a suit lies for declaration that an order compulsorily retiring the
plaintiff is illegal and ultra vires,[xcvi] Where
the Board of Revenue converted, in revision, the order of
suspension of the plaintiff into one of dismissal, the plaintiff could sue for
a declaration that the board's order was without jurisdiction
and infringed the relevant law.[xcvii]
In the matter of
employer-employee relationship, a court can grant a declaration in any of the
three situations:
(i) where a public
servant has been dismissed in contravention of the guarantee contained in Art.
311;
(ii) where a worker has been dismissed in
contravention of industrial and labour law; and (iii) where a statutory body
has acted in breach of a mandatory obligation imposed by a statute.[xcviii]
Further, the expression 'right as to property' is of broad
significance as it does not mean a right in the property. Thus, an
individual rate-payer of a municipality can maintain a suit for declaration
that sale of municipal land by the municipality is in contravention of the statute.[xcix]
This is on the basis that the rate-payers have a peculiar and special interest in municipal properties and are vitally
concerned with illegal or ultra vires acts of the Municipal Committee.
The expression
"legal character" or "right to property" does not cover
merely pecuniary[c] or
contractual relationship.[ci]
In such a situation, a suit for debt or damages, as the case may be, will lie
but not a suit for declaration. There is a difference between a declaration
coupled with a claim for a specified sum as a consequential relief and a case
where the sole prayer is for declaration that a certain sum belongs to the plaintiff.[cii] The
former comes within the
purview of the Specific Relief Act but not the latter.
The proviso to s.
34 requires that if the plaintiff can claim further relief he must do so. The
object of the proviso is to prevent multiplicity of suits. The relief provided
for in the section does not mean every kind of relief but one which would complete the claim of the plaintiff and not lead to multiplicity
of suits. It is further relief and not other relief. The relief ought to
flow necessarily from the effect of the declaration and should be available in
the same proceedings. But, if the relief is remote, and not connected with the
cause of action, then the plaintiff need not claim it. The relief should be
appropriate to, and consequent on, the right asserted or denied.[ciii]
A suit for declaration is liable to be thrown out if the consequent relief
which the plaintiff can claim is not claimed though the Court may permit the
plaintiff to amend the plaint.[civ]
Whether the consequent relief could have
been claimed or not depends upon the facts and circumstances of each case.[cv]
There has been a mass of case-law, and much judicial uncertainty on this
question. Here only one illustration may be taken to show the application of
the principle. In the matter of wrongful dismissal from service, it has been
held in several cases that the plaintiff should claim not only a declaration
that his dismissal was wrongful but also the consequential relief of
reinstatement, arrears of salary, and damages wherever necessary. If the
consequent relief is not claimed then the court would not entertain the suit
for declaration.[cvi]
Where in a suit a relief was only to a declaration for
reinstatement in service of the State Government it was held in such
proceedings, arrears of salary and other consequential relief could not be
granted.[cvii]
The further relief
contemplated is against the defendant and not a third party. Thus, where a
property is under attachment, it is enough to file a declaratory suit against the defendant claiming title to the property and
no further relief for delivery of possession is necessary. As the Supreme Court
has observed: "The authorities clearly show that where the defendant is
not in possession and not in a position
to deliver possession
to the plaintiff, it is not necessary for the plaintiff in a suit for
declaration of title to property to claim possession."[cviii]
A question may be
raised as to why a plaintiff will not pray for consequential relief when it
arises out of declaration. One reason is that the plaintiff may not be sure of
the consequential relief. Another important reason appears to be the
court-fees. The Court-fees Act 1870 regards a suit for declaration with
consequential relief as distinct from that for a declaration simpliciter. In
the former, the court-fee is to be computed according to the amount of the
relief sought; in the latter case, only a fixed nominal fee is payable. Therefore,
a plaintiff may like to go in for a declaration simpliciter
to save on court-fees.
The Law Commission
expressed the opinion that the proviso to s. 34 should be abolished. It observed:
“The proviso was
introduced by the Specific Relief Act with the object of preventing
multiplicity of proceedings. The proviso has, however, given rise to a mass of
case-law as to what is 'further relief' and whether, 'further relief' is such
relief as could be sought for in the suit in which or in the Court before which
the declaration is sought. It leads to injustice in many cases and it only results in an addition to the revenue to a certain extent.”
As stated earlier,
until a case is decided there is often a good deal of uncertainty whether the
plaintiff could have claimed the consequential relief or not.[cix]
The recommendation of the Law Commission was not implemented when the Specific Relief Act, 1963 was enacted. If the law is modified as
suggested by the Law Commission, declaration may come to serve as a useful
remedy in administrative law as an alternative to writs and thus some pressure
of work may be eased from the High Courts.
Giving of declaratory relief is
discretionary with the Court. The Supreme Court has ruled in Mysore S.R.T. Corp. v. Mirja
Khasim[cx] that the discretion exercised by the
lower court can be reversed by the superior court only if the discretion is not
exercised by it in the spirit of the statute or fairly or honestly or according
to the rules of reason and justice.
A court may refuse to give the declaration if
it would be a useless and infructuous relief. A court does not grant a
declaration when it has no utility.[cxi]
For example, when the prayer for consequential relief is for mandatory
injunction and the court would not grant it in the circumstances of the case[cxii],
or because of events subsequent to the filing of the suit (such as subsequent legislation passed retrospectively),
the suit becomes useless.[cxiii]
The court did not
grant a declaration in 1942 that a licence
should have been renewed by a Municipality for the year 1936-37 as such a
declaration was useless.[cxiv]
The relief may also be refused in other suitable cases, e.g.,
where another appropriate or alternative legal remedy is available.[cxv] A declaration was sought that a bill passed by the legislature was ultra
vires. The plaintiff apprehended that after the receipt of the Governor’s assent the bill would become Act and when enforced
would adversely affect his property
rights. The court refused the
declaration saying that the grant of such a relief lay entirely within the
Court's judicial discretion and a party cannot claim it as a matter of law during its formative stages.[cxvi]
The declaratory
remedy lies by way of suit which normally has to be filed before the District
Court. In spite of several advantages in favour of the declaratory action, it
is not as popular and effective a remedy as the writs. The reasons are the same
as in the case of injunctions. Firstly, since a declaratory decree is a
statutory remedy it can be excluded by a Statute.[cxvii]
Secondly, two months' notice under s. 80, CPC has to be given
before a suit for declaration against the government can be filed.[cxviii]
Thirdly, a suit for declaration is to be filed in a lower court where its
disposal takes long while a person can go straight to the High Court for a
writ.
03. The English Position
In England, the most
interesting development in the
area of administrative law has been the raise of the action for a declaration
as a means of challenging decisions of administrative tribunals as an
alternative to certiorari.[cxix] It
has developed into a useful, popular and an efficient remedy, to challenge ultra
vires acts of administrative authorities. The landmark case in England is Dyson v. Attomey-General[cxx]
where the Court of Appeal justified a subject testing the
justifiability of action of government officials purporting to act under
statutory provisions. Declaration has been used in a number of cases as a means
to circumvent the technicalities of certiorari when
administrative authorities act against law.[cxxi]
Declaration can be granted whether or not any consequential relief is or can be
claimed. Another major advantage of declaration over prerogative remedies is that it is a good substitute for remedies which
cannot be granted against the Crown, such as, injunction and mandamus. With
the introduction of new procedure “application for judicial review" in
1977 which made the declaratory action interchangeable with the prerogative
remedies, the former advantage of declaration has been lost.
06. SUIT FOR DAMAGES
Damages are
available as a remedy in judicial review in limited circumstances. Compensation
is not available merely because a public authority has acted unlawfully. For
damages to be available there must be either:
(a) A recognized
‘private’ law cause of action such as negligence or breach of statutory duty
or;
(b) A claim under Human Rights Act.
(c) Any another legally recognized
right.
The formula that no
suit shall lie for anything done or purported to be done in good faith under the
Act has been held to include an 'omission' as well.[cxxii]
Section 117 of the Factories Act, 1948 provides indemnity in respect of
'anything done or intended to be done under this Act'. It was held that
protection conferred can only be claimed by a person who can plead that he was
required to do or omit to do something under the Act or that he intended to
comply with any of its provisions. The clause cannot confer immunity in respect
of actions which are not done under the Act but are contrary to it.[cxxiii]
This formula bars suits for damages and compensation for administrative acts
done under the Act.[cxxiv]
In this connection, the Bombay Port case may be referred to.
The plaintiff had
imported certain goods. The Bombay Port Trust delivered a part of the goods to
the plaintiff but could not deliver the rest as they were not traceable. He
brought a suit after the six-month time limit. As stated earlier, the court had
ruled that “omission to do an act" was covered by the expression "act
done". The plaintiff argued that the failure to do what the Act mandated:
the Port Trust to do, viz., to deliver the goods goods, could not be
"in pursuance of this Act." It was held that though the authority might
have neglected to comply with the law, yet the ouster clause gave protection to
it, as the act of non-delivery was in the discharge of official duty under the
Act. There has to be a reasonable or legitimate connection between the act or
omission and the discharge of official duty. The short delivery of the goods
was in purported exercise of the bailee's obligation under the Act and was
covered by s. 87.
The ouster clause
will not cover the case of breach of contract. In Bombay Housing Board v.
Karbhase Naik & Co.[cxxv], it was held that non-payment of an
amount of money due to the respondent on the basis of breach of contract
between him and an administrative authority could not be said to be an act done
or purported to be done in pursuance of the Act under which the said authority
functions but is an act under the contract. While the authority may have
entered into the contract in pursuance of the Act, the breach of
contract cannot be regarded as having any reasonable connection with any duty
cast upon the authority by the Act. Therefore, the privative (ouster) clause
would not apply. Similarly, the ouster clause will not prevent a person from
suing the government for the recovery of the price for the goods supplied to
it, under s. 70 of the Indian Contract Act, 1872.[cxxvi]
S. 68 of the M.P.
Excise Act, 1915 bars suits against the government in respect of “anything
done" in pursuance of this Act, unless the suit is instituted within six
months from the date of the act complained of. The plaintiff was granted a
licence for retail sale of country liquor after an auction. The Government
undertook to supply a minimum quantity of liquor for sale. But the government
defaulted in fulfilling its undertaking. The plaintiff sued for compensation
for breach of contract. The High Court ruled that s. 68 would not come in the
way as the plaintiff's complaint did not relate to an act done or omitted by
the state under the Act. . His complaint related to recovery of damages for
breach of a contractual obligation which would not fall within the scope of s.
68.[cxxvii]
Under Section 119 of Ajmer Land and Regulation Act, 1877 adoption by a widow
was confirmed by Central Government. The aforesaid adoption was challenged in a
civil suit. It was held that jurisdiction of civil court is not barred as the
adoption itself was challenged in civil suit and issue raised in civil suit was
outside the scope of ouster clause.[cxxviii]
07. OTHER REMEDIES
01. Specific Statutory Remedies
Apart from the
general remedies mentioned above, a statute imposing a specific obligation on a
person, or conferring power on an administrative body, may provide a specific
mechanism of its own to invoke the jurisdiction of a Court in some way at some
stage of the proceedings for some purposes. For example, s. 18 of the Land Acquisition
Act, 1894 enables a person, whose land has been acquired, but who has not
accepted the award of compensation for the same, by written application to the collector,
to "require that the matter be referred by the collector, for the
determination of the court." He may claim this right whether his objection
be to the measurement of the land, or the amount of compensation, or the
persons to whom it is payable, or the apportionment of the compensation amongst
the persons interested. After a reference by the collector to the court, the
matter assumes a judicial complexion. The Court may award any compensation
between the amount awarded by the collector and the amount claimed.[cxxix]
Whenever such an application is made to the Collector to make a reference of
the question of compensation to the court, it is the duty of the collector to
make the reference unless there is a valid ground for rejecting the
application, as for instance, it is time barred.[cxxx]
The condition regarding limitation is a sine qua non for a valid
reference by the collector. It would, therefore, appear that when a person
concerned makes a request to the collector to make a reference to the court for
determining the question of compensation, and if the collector does not take
any action on it, the person concerned would be entitled to go to the High
Court under Art. 226 for a writ of mandamus asking the collector to
discharge a duty which he is bound to do under the law. The collector's duty to
make the reference is mandatory and not discretionary unless he has a valid
ground to refuse to make the reference. In a case where the compensation is
determined by Land Acquisition Officer on account of acquisition of land, on
filing of an application under Section 18 of Land Acquisition Act, 1894 by the
claimant, the Collector is under an obligation to make a reference.[cxxxi]
Some statutes provide for an appeal
from the decision of the authority concerned to a court. s. 169 (1) of the
Delhi Municipal Corporation Act, 1957 provides that "an appeal against the
levy or assessment of any tax under this Act shall lie to the court of the
district judge of Delhi." Under s. 169(2), questions of law may be
referred by the court to the High Court for decision. Under s. 15 of the U.P.
Motor Vehicles Taxation Act, 1935 an appeal could be filed against the order of
the assistant transport commissioner within 30 days. Section 6-A of the
Essential Commodities Act, 1955 confers power on the collector to confiscate
any essential commodity seized in pursuance of an order made under s. 3 of the
Act in relation thereto. Section 6-B confers a duty on the licensing authority to give a notice informing the person to whose
detriment the action is proposed to be taken, the grounds on which it is proposed
to confiscate the essential commodity and further give him an opportunity to
make a representation within a reasonable time and also a reasonable
opportunity of being heard in the matter. Section 6-C provides for an appeal
against the order of confiscation. The state government is required to appoint
a "judicial authority" to entertain and hear appeals against the
order of confiscation. The appellate authority so constituted has power to
modify or annul the order of confiscation. In one instance, the state
government appointed the sessions judge as the judicial authority’ for purpose of
s. 6-C. The question raised in Thakur Das v, State of Madhya Pradesh[cxxxii] was whether the sessions judge was a
"persona designata" and so not, or whether he was, an inferior court
subordinate to the High Court for the purposes of ss. 435 and 439 of the
Criminal Procedure Code. There was a cleavage of opinion among the High Courts
on this point. Some High Courts refused to treat the judicial authority as an
inferior court, as in Mysore v. Pandurang P. Naik[cxxxiii]; Gujarat v. C.M. Shah[cxxxiv];
Madhya Pradesh v. Basant Kumar, Jabalpur[cxxxv].
Some High Courts regarded him as an inferior court, as in Public Prosecutor v.
L. Ramayya.[cxxxvi]
The Supreme Court
explained that the term "Judicial authority" clearly indicated that
the appellate authority must be one such preexisting authority which was
exercising judicial power. Such an authority has its own hierarchy of superior
and inferior courts. The concept of appeal "inheres hierarchy and the
appellate authority broadly speaking would be higher than the authority against
whose order the appeal can be entertained." Therefore, the sessions judge
is to function as a court while hearing appeal from the order of confiscation
and this court would be subject to the revisional jurisdiction of the High
Court.
Under the
Advocates Act, 1961, the disciplinary committee of a State Bar Council has
power to impose punishment on an advocate for professional or other misconduct.
The concerned advocate has a right to appeal to the Bar Council of India. Every
such appeal is heard by its disciplinary committee. Finally the advocate can
appeal to the Supreme Court.[cxxxvii]
Explaining the scope of appeal, the Supreme Court has emphasized in Chandra
Shekhar Soni v. Bar Council of Rajasthan[cxxxviii] that
as a general rule, the court would not interfere with the concurrent finding of
fact given by the disciplinary committee of the Bar Council of India and the
State Bar Council “unless the finding is based on no evidence or it proceeds on
mere conjectures and unwarranted inferences".[cxxxix]
Some statutes
confer a limited power of judicial review of questions of law. An oft-repeated formula
found in the statutes in this regard is to give to the authority concerned the
power of making a reference on a law point to the court, usually the High
Court. In some cases, the court is also given a compulsive power to require the
authority to make a reference to it on a point of law which may have arisen in
a case. One illustration of this technique is to be found in the Stamp Act,
1899 where, under s. 57, the Chief Controlling Revenue Authority may state any
case to the High Court concerned along with its own opinion thereon. Explaining
the implications of this provision, the Supreme Court has stated that the power
contained in this provision is “in the nature of an obligation or is coupled
with an obligation and under the circumstances can be demanded to be used also
by the parties affected by the assessment of the stamp duty.”[cxl]
It is a duty cast on the authority, as a public officer, to do the right thing and when an important and intricate question
of law in respect of construction of any document arises, it is his duty,
as a public servant, to make the reference. If he omits to do so, it is within
the power of the court to direct him to discharge that duly and make a
reference to the court. It will thus be seen that although the statutory provision
only confers on the authority concerned a power to make a reference to the High
Court, by a process of judicial interpretation the same has been converted into
an obligation, a duty, on it.[cxli]
Also, it is not necessary for a party to move the authority by way of an
application for making a reference to the High Court. The authority may itself
act suo motu and refer a case to the High Court even without an
application from the aggrieved assessee.[cxlii]
It is not only the authority that can make the reference; it is open to the
High Court as well, in pursuance of a petition to it under Art. 226, to direct
the authority to make a reference to the court in case it omits to do so when
an important question regarding the interpretation or construction of a
document is involved in a case. Furthermore, the authority is competent to make
a reference when the case is pending before it and not after it has closed the
case and passed the final order; but the High Court acting under Art. 226 is
not bound by any such restriction, and it can require the authority to state a
case even after it has closed the case and made the final order.[cxliii]
In Sarup Singh,[cxliv] the authority imposed a stamp duty of over
Rs. 3000 on the document in question and a penalty of an equal amount. The question
was whether or not the document in question was a gift deed and so subject to
the stamp duty levied by the authority. On a writ petition under Art. 226, the
High Court directed the authority to refer the question with its opinion
thereon to it under s. 57. The jurisdiction of the High Court extends to the
entire case; it can consider any question of law which emerges in the case and
the court is not confined merely to such questions as may be referred to it by
the authority.[cxlv]
The example par
excellence of the reference technique is furnished by several Central Statutes.
Section 35H of the Central Excise Act, 1944 provides that the Commissioner of
Central Excise or the other party may within 180 days of the date on which he
is served with the notice of an order under Section 35C, may by application in
the prescribed form apply to the High Court to direct the Appellate Tribunal to
refer to the High Court any question of law arising from such order of the
Tribunal. Similarly Section 57 of the Indian Stamps Act, 1899 empowers the
Chief Controlling Revenue Authority to state any case referred to in Section 56
(2) of the Act, if it arises in a State, to the High Court of that State. If
only questions of fact arise from a tribunal order, and no point of law arises,
the High Court will be justified in declining to give direction to the tribunal
to refer a case to it.[cxlvi]
The limitations of
this procedure may be noted. In the first place, only questions of law can be
referred. This means that the tribunal is the final authority in regard to questions
of fact.[cxlvii] Where in
a petition or reference under Section 256[cxlviii]
of Income Tax Act, 1961 a question of fact is raised, it cannot be referred.[cxlix]
The question
whether surplus realized on sale of shares is a capital gain exempt under
section 47(iv) of the Income-tax Act, 1961, is a question raising mixed issue
of law and fact, accordingly the matter was directed to be referred to High
Court by IIAT.[cl] Secondly,
only such questions of law may be referred as arise out of the order of the
Tribunal. This means that new questions of law cannot be referred to the High
Court for opinion. The reference technique
thus differs from the appeal technique in so far as in the latter case new
questions of law if they arise from established facts may be urged before the
appellate forum,[cli]
but the same cannot be done through the reference technique. The idea
underlying this restriction is to protect the High Court from being flooded by
income tax cases delaying both the judicial as well as the tax assessment
processes.[clii] What is
a question of law arising out of the order of the Tribunal? Answering this, the
Supreme Court has laid down the following propositions;[cliii]
(1) When a question is raised before the
tribunal and is dealt with by it, it is clearly one arising out of its order;
(2) when a question of law is raised before
the Tribunal, but it fails to deal with it, it can be deemed to have arisen out
of its order;
(3) When a question
is not raised before the tribunal but it deals with it, that will also be a
question arising, out of its order;
(4) when a question
of law is neither raised before the tribunal nor considered by it, it will not
be a question arising out of its order notwithstanding that it may arise out of
the findings given by it.
What the Supreme
Court means by "question of law" in the above propositions is a
‘legal issue’ which is a broader term than the former. To prove a legal issue,
the person concerned could adduce several legal points or contentions. Though a
new legal issue cannot be raised, yet a new legal point or contention can be
adduced in support of the issue. In the Scindia case,[cliv]
the question referred to the High Court was whether a certain sum received by
the company "was properly included in the assesse company's total income
computed for the assessment year 1946-47". Before the High Court, the
company raised a completely new contention for the exemption of the sum from
the tax. The Supreme Court held that that could be done because "it is
competent for the court in such a case to allow a new contention to be
advanced, provided it is within the framework of the question as
referred". However, no new additional evidence could be permitted to be
raised at that stage.[clv]
The High Court in a reference under Taxation statute exercises advisory
jurisdiction in regard to questions
of law. The High
Court cannot, in reference proceedings, go behind the facts found. It cannot
look at the evidence that was not before the tribunal when the tribunal
recorded the impugned findings, to hold that findings are perverse.[clvi]
It is well settled
that a reference court cannot go into the vires of an Act. It is based
on the assumption of a notion of physical law that a river cannot rise above
its source.[clvii]
Though the
tribunal is the final judge of facts, yet if there is no legal evidence to support
the facts found by the tribunal, or the findings are unreasonable or perverse, then
it may be regarded as a question of law and the court may quash the findings on
a reference being made to it by the tribunal.[clviii]
The Supreme Court has reiterated in Amarchand Sobhachand v. C.I.T.[clix] that
where a finding of fact by the Income-tax Appellate Tribunal is supported by
evidence, it is binding on the court in the exercise of its jurisdiction under
Art. 136. But the position of a mixed question of law and fact is different.
The High Court can interfere if the tribunal has misdirected itself in law.
Such a question does not have the same unassailability as a pure finding of
fact. Where the tribunal misdirects itself in applying the law to the facts as
found by it, the court can interfere with the same as this gives rise to mixed
questions of law and fact.[clx]
Jurisdiction under Section 256 of Income-tax Act, 1961 cannot be exercised in respect
of findings of fact, though amount involved may be large.[clxi]
The High Court can
interfere with finding of fact given by ITAT if the finding of fact in a
question referred to it appears to be perverse. Otherwise the High Court is bound
to proceed upon such findings of fact to answer question of law. ITAT is the final
fact finding authority.[clxii]
The reference
procedure has been criticized by the Law Commission of India on the ground that
many a time the statements of the case drawn up by the tribunal for reference
to the High Courts have been perfunctory so much so that the High Courts have
had to remit the cases to the tribunal for a further and better statement of
the case with fuller particulars.[clxiii]
From the decision
of the High Court on a reference made by the tribunal, an appeal may go to the
Supreme Court in any case in which the High Court certifies it to be a fit case
for appeal. The High Court has to exercise its power of certification not
mechanically but after applying its mind judicially and the Supreme Court may
decline to hear a case if in its view the certificate has not been granted
properly by the High Court. When the High Court granted a certificate
containing a bold statement that the case was a fit one for appeal to the
Supreme Court, the court held the certificate to be invalid, and refused to
hear the appeal.[clxiv]
The Supreme Court can also hear an appeal under Alt. 136 from a High Court's
decision in a reference. In appeal, the Supreme Court would not exercise any
wider power than the High Court does in a reference.[clxv]
Besides, if the tribunal is of the opinion that, on account of conflict in the decisions
of the High Courts in respect of any particular question of law, it is expedient
that a reference be made direct to the Supreme Court, the tribunal may draw up a statement of the case and refer it through its President direct to the
Supreme Court. It is thus possible for the tribunal to refer a question of law
direct to the Supreme Court so that conflict of judicial opinions thereon may
be resolved. This helps in securing uniformity in the interpretation of the
income tax law.
Apart from the reference procedure, there are possibilities of
judicial review in income tax proceedings through Arts. 32, 226 and 136 of the
Constitution. In spite of the reference procedure laid down in the Income-tax
Act, resort is still had to the High Court under Art. 226 in quite a large
number of income tax cases. Generally speaking, these are cases which are not
covered by the reference procedure, such as, matters in which no appeal lies to
the tribunal and hence no reference can possibly be made by it to the High
Court. One such situation arises when a taxpayer seeks to appeal to the
Appellate Assistant Commissioner against the order of the income tax officer. In
such a case, the income-tax officer has a discretion to stay payment of the tax
pending appeal. If he refuses to stay tax payment, no appeal lies against the
order to the tribunal- If the income tax officer exercises his discretion
improperly, relief can be had from the High Court under Art. 226.[clxvi]
Further, the High Courts have also intervened, under Art. 226, when the
exercise of jurisdiction by an income tax officer was patently wrong, e.g., where
he sought to assess a person to tax after the clear expiry of the period of
limitations,[clxvii] or
without the issue of the preliminary notice as required by the statute,[clxviii]
or against the clear language of the statutory provision,[clxix]
or when the income tax officer assumed jurisdiction by deciding a
jurisdictional fact erroneously.[clxx]
Where such special circumstances were not present, the High Courts have refused
to intervene.[clxxi] The
answer to the question whether the writ jurisdiction is muzzled by statutory
finality of orders regardless of their illegality, is in the negative.[clxxii]
The Court should
be reluctant to interfere against mere issuance of a show cause notice.
Adjudication proceedings must not be stalled.[clxxiii]
Where the validity
of notice issued under Section 148 of Income-tax Act, 1961 is challenged the
High Court should not go into the question whether the notice is partly valid
and partly invalid.[clxxiv]
Finally reference
may be made to s. 115 of the C.P.C. This provision enables the High Court to
call for the record of any case decided by any "court subordinate" to the High Court and make such order as it thinks fit if the
subordinate court has acted outside its jurisdiction, or has failed to exercise
its jurisdiction or has acted illegally or with material irregularity
in exercising its jurisdiction. The provision is operative only when no appeal lies from the subordinate court to the
High Court.
The question has been raised whether the term 'court' in
s. 115 can be interpreted in a broad sense so as to include tribunals and
quasi-judicial bodies. This will mean that the High Court will have a review
power on all such bodies. There has been a difference of opinion among the High
Courts on this point. A claims tribunal constituted under Motor Vehicles Act,
1988 has been held to be a civil court for purposes of s. 115.[clxxv]
In some cases, the authority under the Payment of Wages Act, 1936, has been
held to be not subordinate to the High Court within the meaning of s. 115,
C.P.C..[clxxvi] In Yeshvant
Rao v. Sampat,[clxxvii]
the Madhya Pradesh High Court ruled that the commissioner for workmen's
compensation would not fall within the purview of s. 1 is. Under s. 19(2), Workmen's Compensation Act, the
Commissioner decides any question as to the liability of any person to pay compensation or as to its amount or duration. The
Commissioner has all powers of a civil court to take evidence on oath or compel
attendance of witnesses. While there may be some similar features between a
court and a tribunal, e.g., both can give binding decisions, both follow
a similar procedure, except that the tribunal's procedure may not be as
strictly prescribed as that of a court, the two also differ insofar as a court
is a part of the ordinary hierarchy of courts while a tribunal is constituted
under a special statute to exercise some special jurisdiction. The High Court
opined that the word 'court' in s. 115 has been used in a narrow
sense, meaning only a 'civil court in the normal hierarchy of courts'. S. 115
does not include tribunals and so an order passed by the Commissioner under s.
19, would not be reviewable by the High Court. There are, however, some
contrary pronouncements as well.[clxxviii]
In any case, under Art. 227, the High Court can always exercise review power
over such bodies. Under Section 115 of the Civil Procedure Code, order of
proceedings sought to be scrutinized must be that of subordinate authority or
of court.[clxxix]
08. OUSTER CLAUSE IN ADMINISTRATIVE LAW AND PRIVATE LAW REVIEW
01. Ouster Clauses
It is becoming rather common for the legislature to
confer decision making powers on various authorities and to seek to
limit or exclude court's power to review those decisions. In India, because of
Art. 226 of the Constitution, the writ system is entrenched and thus no
statutory provision can affect High Courts' power to issue a writ. But the position is different when a person wishes to seek an
ordinary remedy through a suit for injunction, declaration, or any other
appropriate relief. S. 9 of the CPC being a statutory
provision, its scope can be curtailed by another statutory provision. S. 9 C.P.C. itself envisages that this jurisdiction of the civil
court may be excluded expressly or implicitly. CA question arises from time to
time as to how far an ouster or privative clause, i.e., a provision in a
statute seeking, to exclude courts' review power affects the ordinary remedies.
The question is
significant in the modern context when the legislature freely establishes
bodies enjoying large discretionary powers and at the same time seeks to make their
decisions free of judicial review. Not all decisions made by such bodies raise any
policy issues which may justifiably be characterized as non-justiciable. In
most of the cases, the contest is between a citizen and the administration, and
the matter is decided by an authority aligned with the administration, and to
make such a decision non-reviewable by the Courts would seem to be an extremely
one-sided arrangement. In such a case, at no stage, there is an objective
assessment of the legal rights of the concerned citizen. These decision-making
bodies may tend to act as petty despots in the absence of any independent
judicial control from the above. True, in India, writ jurisdiction can always
be invoked. This is a built-in safeguard of great consequence (against misuse
of administrative power, but it may not always be possible for all and sundry
to go to the High Court to vindicate their rights. It is necessary that a
remedy be available to a citizen nearer at hand. From this point of view,
remedy by way of suit ought to be available to him which he can invoke in the
lower court at less expense. Denial of judicial remedies at lower level only
increases the burden of the High courts. Then, there are many questions which
cannot be satisfactorily resolved through the machinery of a writ-petition. For
example, High Courts are reluctant to go into questions of fact in a writ
petition;[clxxx] writ is
not regarded as a suitable remedy for seeking refund of money illegally
collected by the administration as a tax,[clxxxi]
or for impeaching contractual obligations.[clxxxii]
For any such purpose, one has to resort to the remedy by way of suit. If
that approach to justice is barred by a statutory provision, the citizen may be
left high and dry with no effective remedy to vindicate his rights against
infringement at the hands of the administration. Unfortunately, not much
attention has so far been directed towards improvement of ordinary remedies
against the administration because of the availability of the writ system, but
development of ordinary remedies is intimately connected with the idea of easy
access to justice by ordinary persons.
Statutes use
various ouster or privative clauses to exclude court review of administrative action
taking place under them. It is not possible to take note of all the variants of
such formulae, but the following four appear to be typical and are used most often:
First, a statute
may provide that no suit shall lie for anything done or purported to be done in
good faith under the statute.
Two, a statute may
provide that the order or the decision of a specified body or tribunal functioning
thereunder shall be 'final'.
Three, a variant
of this provision may lay down that no order made under the Act shall be called
in question in any court.
Four, a statute may
permit the filing of a suit subject to some limitations, such as, giving notice
to the authority concerned before filing the suit, usually the duration of the
notice being two months; another condition may be that a suit must be filed
within the prescribed limitation period, may be, six months from the accrual of
the cause of action. If the statutory conditions are not fulfilled, the suit is
barred.
02. Scope of Exclusionary clauses
The extent of exclusion
will largely depend upon a construction of the provision enacted for that purpose
but in case of doubt it is a familiar approach to correlate the section excluding
civil court's jurisdiction with other sections in the same statute providing
special remedies,[clxxxiii]
for a contrary construction would lead to a vacuum.[clxxxiv]
Absence of a provision to enable an authority or tribunal for holding an
inquiry on a particular question is indicative that jurisdiction of civil
courts on that question is not excluded; whereas the very provision setting up
hierarchy of judicial tribunals for the determination of a question, is
sufficient in most cases for inferring that the jurisdiction of the civil
courts to try the same matter is barred.[clxxxv]
But when with the object of speedy adjudication of certain matters which are
widely defined, jurisdiction is conferred on tribunals or special courts and
jurisdiction of normal courts is excluded, the wide language used cannot be narrowly
construed,[clxxxvi] and
it is now a well established principle that the jurisdiction of a court created
specially for reduction of disputes of certain kinds should be construed
Iiberally.[clxxxvii]
Further, when jurisdiction of civil courts in a particular matter is excluded
by transferring that jurisdiction from civil courts to tribunals or
authorities, it is presumed that such tribunals or authorities can draw upon the
principles of procedure in civil procedure code, though not expressly made
applicable, to ensure fair procedure and just decision unless such principles
are inconsistent with the provisions of the Act constituting them.[clxxxviii]
Even in cases
where jurisdiction is excluded by use of prima facie comprehensive language,
it is open to civil courts which are courts of general jurisdiction to decide whether
a court, or tribunal or authority having limited jurisdiction, has acted in
excess of its statutory powers.[clxxxix]
In other words, civil courts can interfere when the order of the tribunal or
authority is really not an order under the Act conferring special jurisdiction
but is a nullity.[cxc]
But on matters on
which jurisdiction of the civil court is excluded, neither consent of the
parties nor an order of the special tribunal which has jurisdiction to decide those
matters, can confer jurisdiction on the civil court.[cxci]
Section 10 of the
Indian Railways Act, 1890, provided that a railway administration shall do as
little damage as possible in exercise of its powers for construction and
maintenance of work, and compensation shall be paid for any damage caused by the
exercise thereof and that ‘a suit shall not lie to recover such compensation;
but in case of dispute the amount thereof shall on an application to the'
Collector, be determined and paid in accordance with the provisions of the Land
Acquisition Act, 1894.’ In a suit brought by a person claiming damages for
injury caused by negligence of a railway administration in construction of
certain works, it was contended that the suit was barred by section 10 of the
Railways Act. This contention was negatived on the ground that the aforesaid
provision was applicable only when the railway administration had not exceeded
or abused its powers, and was not guilty of negligence.[cxcii]
Lord MacNaghten in delivering the judgment of the Board said: "It has been
determined over and over again that if a person or body of persons having statutory
authority for the construction of works exceed or abuses the powers conferred by
the Legislature, the remedy of a person injured in consequence is by action or
suit, and not by a proceeding for compensation under the statute which has been
so transgressed. Powers of this sort are to be exercised with ordinary care and
skill, and with some regard to property and rights of others. They are granted
on the condition sometimes expressed and sometimes understood-expressed in the
Act of 1890, but if not expressed always understood that the undertakers shall
do as little damage as possible in the exercise of their statutory powers.”[cxciii]
In an earlier Privy Council case[cxciv]
it has been pointed out that where a public body, acting in execution of a
public trust and for a public benefit does an act which, it is authorized by
law to do, and does it in a proper manner, though the act so done works a
special injury to a particular individual the individual injured cannot
maintain an action and he is without a remedy unless remedy is provided by the
statute. But the position is different when the power is exercised ‘arbitrarily,
carelessly or oppressively' and when an action is brought in such cases Lord MacNaghten
said: "In a word, the only question is: Has the power been exceeded? Abuse
is only one form of excess.”[cxcv]
In HALSBURY'S Laws of England the legal position is summed up as follows:
"It is the duty of persons upon whom statutory powers are conferred to
keep strictly within those powers. If such persons act in excess of their
powers, they are to the extent to which they exceed their powers, deprived of
any protection conferred upon them by the statute in question and will be
subject to the ordinary remedies existing at common law. An injunction may be
granted to restrain an act in excess of statutory powers and a person injured
by such an act may be entitled to recover damages from the persons purporting
to exercise the power.”[cxcvi]
The question was
considered in relation to municipal taxation in Firm Radhakrishnan v.
Ludhiana Municipality.[cxcvii] After
referring to the Privy Council decisions noticed above,[cxcviii]
SUBBARAO, J. observed: "A suit in civil court will always lie to question
the order of a tribunal created by a statute, even if its order is, expressly
or by necessary implcation, made final, if the said tribunal abuses its power
or does not act under the Act but in violation of its provisions.”[cxcix]
In the last-mentioned case[cc]
it was held that an assessment of terminal tax, which was questioned on the
ground that the Municipality applied a wrong rate of tax by wrongly determining
the character of taxable commodity, was not open to challenge in the civil
court; but it was pointed out that if a municipality levied a tax on a
commodity which was not taxable at all, a civil suit will lie; the former being
a case where the municipality acts under the Act although wrongly, whereas the
latter is a case where the entire action is outside the Act. So in Poona
City Municipal Corporation v. Dattatraya Nagesh Deodhar[cci] the
Supreme Court upheld the maintainability of a suit for recovery of money which
the Municipal Corporation detained as a 'tax on octroi refund' on the ground
that the Corporation had no power to levy such a tax. It was further held that
the action of the Corporation in levying such a tax was not ‘any act done or
purported to be done in pursuance or execution or intended execution' of the
Corporation Act.[ccii]
Similarly in Bharat Kala Bhandar v. Dhamangaon Municipality[cciii] a
suit to claim refund of tax on professions, trades and callings levied and
collected by the Municipality in excess of constitutional limits prescribed by
section 142-A of the Government of India Act, 1935, and Article 276 of the
Constitution, was held to be maintainable. It was pointed out that the suit did
not relate to anything done or purported to be done under the Act; and the
special procedure of notice and limitation prescribed by the Act did not apply.
It was further held that the suit was not barred by a statutory provision in the
Act which was to the effect: 'No objection shall be taken to any valuation,
assessment or levy in any other manner or by any other authority, than as
provided in this Act.' And in Kripal Singh v. Municipal Board,
Ghaziabad,[cciv]
a suit claiming refund of toll tax based on a statutory exemption was not
held to be barred though the plaintiff had not complied with the rules
prescribing the procedure for claiming refund of such tax from the
municipality. It was also held that the suit was not in respect of any act done
or purported to be done in the official capacity. The decision in Firm Radha
Krishan’s case[ccv]
however, does not allow challenge to an order of assessment of tax on the
ground that it is erroneous or incorrect. The challenge will be permissible
only if the assessment is constitutionally invalid or is entirely without jurisdiction.
This has been explained in the case of Bata Shoe Co. Ltd. v. Jabalpur Corporation.[ccvi] In
this case the plaintiff instituted a suit to challenge the order reopening an
assessment of octroi tax and levy of double penalty by a suit on the ground
that the assessment was made without any authority and that the imposition of
double penalty was not justified under the provisions of the relevant Municipal
Act and the Rules. The Act provided an elaborate machinery of its own for
challenging an assessment of tax. The Act also provided that 'No objection
shall be taken to any valuation, assessment or levy nor shall the liability of
any person to be assessed or taxed be questioned in any other manner or by any
other authority than as provided in this Act'. The Supreme Court held that the
suit was not maintainable on the reasoning that if the appropriate authority
while exercising its jurisdiction and powers under the relevant provisions of
the Act, holds erroneously that an assessment already made can be corrected or
that an assessee is liable to pay double duty under the relevant rule when the
rule does not in fact justify such an imposition it cannot be said that the
decision of the authority is without jurisdiction.
In Income-tax and
Sales Tax Acts, it is common to find provisions to the effect that 'no suit
shall lie to challenge an assessment made under the Act', or that 'no
assessment made under the Act shall be called into question in any court except
as otherwise provided in the Act'. In Raleigh Investment Co. v. G.G.
in Council,[ccvii]
the Privy Council construing a provision of this nature (section 67 of the
Income-tax Act, 1922) held that an assessment could not be challenged in civil
court on the ground that it was based on a provision of law which was ultra
vires. It was pointed out that the correct meaning of the phrase
'assessment made under the Act' is an assessment finding its origin in an
activity of the assessing officer acting as such, and that an assessment under
the machinery of the Act relying on a provision which is later found ultra
vires is not a nullity but only erroneous in law. This Privy Council
decision has not been accepted by the Supreme Court. In K.S. Venkatraman & Co. v. State of
Madras[ccviii],
it was held by the
Supreme Court that an assessment which is based on a charging section which is ultra
vires is not an 'assessment under the Act', and a suit to challenge such an
assessment is not barred. It was also held that assessing authorities cannot entertain a question relating to validity of the
Act, and hence, it is open to a civil court to entertain and decide such a
question notwithstanding that assessment has already been made. This case was
followed in Dhulabhai v. State of Madhya Pradesh[ccix], where assessment was based on a
notification issued under the charging section. The notification contravened
Article 301 of the Constitution and was, therefore, ultra vires. It was
held that the validity of the notification could not have been gone into by the
assessing authorities, and that the assessment was not ‘under the Act', and
could be challenged by a suit in civil court. Income-tax and Sales Tax Acts,
however, contain an elaborate machinery for assessment and for determination of
questions of fact and law arising in assessment proceedings and an assessment
cannot be questioned except in the manner provided under the Act on the ground
that it is erroneous in fact or in law.[ccx]
Thus, if purchases only and not sales can be taxed, a suit challenging an
assessment is not maintainable on the ground that the transactions taxed were
sales and they were wrongly held to be purchases by the assessing authorities.[ccxi]
Similarly if sales taking place inside a State are alone taxable, a suit to
challenge the assessment 'is not maintainable on the ground that the sales were
in fact outside sales and were wrongly held to be inside sales.[ccxii]
In this connection it must be kept in mind that speaking generally the taxing
authorities have authority to decide finally even collateral questions of fact
and law touching their jurisdiction.[ccxiii]
The factors that liability to pay income-tax or sales tax is a creature of the
taxing Act which normally provides an elaborate machinery for assessment; that
the taxing authorities have in genera! authority to decide finally questions of
fact and law pertaining to their own jurisdiction; and that these Acts usually
contain an exclusionary provision expressly restraining a suit to challenge an
assessment made under the Act, leave little room for a suit to challenge an
assessment. In addition to the case where assessment is based on an ultra
vires provision, assessment may also be open to challenge on the ground
that it was made in violation of fundamental principles of judicial procedure e.g.,
without any notice to the assesse. Indeed, in Mafatlal Industries Ltd. v.
Union of India[ccxiv], a
nine judge Bench of the Supreme Court while dealing with refund provisions in
the Central Excises and Salt Act, 1944 and the Customs Act, 1962 can be said to
have laid down by majority the following general propositions:
(i) A claim for
refund of tax on the ground that it has been collected by mis-interpreting or
misapplying the provisions of a taxing Act or the rules and notifications made
thereunder has to be preferred in accordance with the provisions of the Act
before the authorities and within the limitation specified therein and no suit
is maintainable in that behalf;
(ii) Where a
refund is claimed on the ground that the provision of the Act under which it
was levied is or has been held to be unconstitutional, the claim can be made by
a suit or by way of a writ petition for such a claim is outside the purview of
the Act; and
(iii) A claim for
refund can succeed only when the claimant establishes that he has not passed on
the burden of the tax to others; in other words, where the claimant has
suffered no real loss or prejudice the claim for refund would be disallowed.[ccxv]
The bar of suits
in civil courts, contained in section 293 of the Income-tax Act, 1961, is much
wider than the corresponding section 67 of the Income-tax Act, 1922 which was
limited to bar a suit 'to set aside or modify any assessment' made under the
Act. Section 293 of the 1961 Act bars a suit 'to set aside or modify any
proceeding taken or order' made under the Act.[ccxvi]
By an order passed under section 132(5) of the Act certain ornaments recovered
on search and seized from the premises of an assessee were directed to be
retained. The step-mother of the assessee, instead of applying under section
132(11), which provided a remedy for challenging the order, brought a suit for
partition ofthe ornaments which was in substance a suit for challenging the
proceedings and the order under section 132(5). It was held that the suit was
barred under section 293.[ccxvii]
Section 5 of Part
I of the Arbitration and Conciliation Act, 1996 provides: 'Notwithstanding anything
contained in any other law for the time being in force, in matters governed by
this Part no judicial authority shall intervene except where so provided in
this Part.' This section along with Section 16 of the Act which provides that 'the
Arbitral Tribunal may rule on its jurisdiction' have been widely construed and interference
by civil court has been ruled out except as provided in the Act.[ccxviii]
Special provisions
curtailing the normal period of limitation for suit or prosecution have also
been strictly construed. Section 53 of the Tamil Nadu District Police Act, 1869
prescribes a period of three months for 'all actions and prosecutions against
any person which may be lawfully brought for anything done or intended to be
done under the provisions of this Act or under the provisions of
any other law for the time being in force conferring powers on the police'.
Construing this provision it has been held that "to be able to say that an
act is 'under' a provision of law, one must discover the existence of a
reasonable relationship between the provision and the act."[ccxix]
Therefore, when a
person reported to the police in answer to a summons and was beaten and
tortured, these acts of the police officer were held to be not 'under' any provision
of law and outside the bar of section 53.[ccxx]
Similar view has been taken of the corresponding provision in the Kerala Police
Act, 1961, where it was held that a police officer in committing torture on a
person cannot be said to be 'acting or purporting to act in discharge of his
official duty and cannot get the benefit of reduced period of limitation in
section 63 of the Act.[ccxxi]
A provision
enacted in terms: 'No order made in exercise of any power conferred by or under this Act shall be called in question in any court',
assumes that the order is made in exercise of the power, which clearly
leaves it open to challenge on the ground that it was not made in
conformity with the power conferred.[ccxxii]
Similarly a provision using the formula: 'No order or
decision under this Act shall be called in question in any court' will not
stand in the way of a suit challenging an order or decision when the order or decision is really not an order or
decision under the Act but a
nullity.[ccxxiii] Therefore, when there is a
non-compliance with fundamental provisions of the Act or fundamental principles
of judicial procedure which makes proceedings before the tribunal or authority
illegal and void, a civil suit to challenge the orders or dicisions passed in
such proceedings is not barred.[ccxxiv]
The reason is that an order or a
decision which is a nullity
or void, is not an 'order or a decision under the Act' and jurisdiction of the
civil court to challenge such an order is not barred by the exclusionary provision using the above formula. For the same reason
even when an order is required to be passed on subjective satisfaction of an
authority as to existence of certain matters, a satisfaction based on wholly
irrelevant grounds is regarded as no satisfaction and the order based on it can
be challenged in a court in spite of the exclusionary clause providing that the
satisfaction of the authority "shall be final and conclusive and shall not
be questioned in any court of law."[ccxxv]
When a statute authorized the grant of
'proprietary rights' and the Deputy Commissioner made a grant in
terms thereof, but in appeal the Commissioner restricted the grant by imposing
a condition that the land should not be alienated without the concurrence of
the reversioners, the Privy Council held that a suit was maintainable to
challenge the condition.[ccxxvi]
LORD SIMONDS in delivering the opinion observed:
"Their
Lordships have no doubt that the Civil Court has power to entertain a suit, in which
the question is whether the executive authority has acted ultra vires.”[ccxxvii] Proceeding
further, LORD SIMONDS said: "The specific subject-matter of the grant is
the 'proprietary rights', that, and nothing else, may be granted or refused. To
purport to grant 'proprietary rights' but to withhold an essential proprietary
right, viz., the free power of alienation is neither the one thing nor
other. The withholding of such a right may be referred to as a condition, but
its effect, as already stated, is to create an estate unknown to the law and to
grant not proprietary rights but something which is not susceptible of terms of
legal definition. Their Lordships think that the original grant by Deputy
Commissioner, who clearly acted within his competence, should stand and the
so-called condition imposed by the superior executive authority which was in
their view incompetent, should be disregarded.”[ccxxviii]
Section 4 of the
Bombay Revenue Jurisdiction Act, 1876, which bars the jurisdiction of civil
courts in certain matters has been held not to be attracted when the claim laid
in civil courts is on the ground that an act or order of revenue authorities is
without jurisdiction and null and void. A suit in civil court is, therefore,
maintainable for claiming reliefs on the grounds that an order of the
Governor-in-Council made under section 211 of the Bombay Land Revenue Code,
1879, was in excess of his statutory powers;[ccxxix]
that a purported sale for arrears of revenue by the Revenue authorities was void
and was no sale at all;[ccxxx]
and that an order in review was without jurisdiction there being no power of
review.[ccxxxi]
The extent of
exclusion is, however, really a question of construction of each particular
statute and the general principles applicable are subordinate to the actual
words used by the legislature.
By use of the
words 'a compulsory purchase order shall not be questioned in any legal
proceedings whatsoever', it was held by the House of Lords that Parliament excluded
every form of challenge including one based on the ground that the order was
made in bad faith.[ccxxxii]
The correctness of this view was not accepted by the Supreme Court,[ccxxxiii]
and also by the House of Lords,[ccxxxiv]
in a later case; but it appears that if the exclusionary provision were
to the effect that an order made or purporting to be made under the Act shall
not be called in question in any Court on any ground whatsoever', it will
require great legal ingenuity to support a civil suit for challenging ‘an order
purporting to be made under the Act' for even an order which is nullity or void
can fall under that description though it cannot be called 'an order under the
Act’.[ccxxxv]
Article 372 (2) of the Constitution confers
powers on the President to issue adaptation orders 'for the purpose of bringing
the provisions of any law in force in the territory of India into accord with
the provisions of the Constitution' and further enacts that ‘any such adaptation
or modification shall not be questioned in any court of law’. Interpreting this
provision it has been held that an adaptation order issued by the President is
not open to challenge on the ground that it amounted to more than bringing the
existing law into conformity with the provisions of the Constitution,[ccxxxvi]
although the order can be challenged on the ground that it was violative of
some other provision of the Constitution.[ccxxxvii]
Article 356 of the
Constitution provides that if the President ‘is satisfied that a situation has
arisen in which the Government of the State cannot be carried on in accordance with
the provisions of the Constitution' the President may by proclamation:
(a) assume to
himself the functions of the Government of the State;
(b) declare that
the powers of the State Legislature shall be exercised by Parliament; and
(c) make such incidental
or consequential provisions as may be necessary to give effect to the objects of
the Proclamation.
The Article before
the Constitution Forty-fourth Amendment Act further provided that the
satisfaction of the President 'shall be final and conclusive and shall not be
questioned in any court of law'. Interpreting this provision the Supreme Court[ccxxxviii]
held that if the satisfaction of the President is based on wholly extraneous grounds which have no nexus with the action
taken, the Proclamation can be challenged in a court of law on the ground that
the President acted without the required satisfaction in issuing the
Proclamation for satisfaction based on wholly irrelevant grounds amounts to no
satisfaction. But if there are some grounds which bear some relevance or nexus
to the action taken the propriety or sufficiency of satisfaction cannot be
challenged in a court of law. Article 356 again came up for consideration
before the Supreme Court after deletion of the clause barring judicial review. It
has been reiterated that Article 356 confers a conditional power on the President
and the Proclamation issued by him is open to judicial review on the grounds
that it was a mala fide exercise of power; that it was based on wholly
irrelevant or extraneous grounds; that there was no material in support
thereof; and that the material relied upon was irrelevant to the action taken.[ccxxxix]
If the Proclamation is struck down the court can also restore back the
dissolved assembly.[ccxl]
But if there is some material which is relevant to the action taken the court
will not enquire into its correctness or adequacy.[ccxli]
When certain
matters are committed to the jurisdiction of a tribunal or authority, and its
determination is made final and civil courts are expressly debarred in
exercising jurisdiction over those matters, or in questioning the determination
of the tribunal or authority, it will be inferred that all questions of fact
and law whether simple or intricate pertaining to those matters have~ be
determined exclusively by the tribunal or authority and not by the civil court.[ccxlii]
Indeed, it has been said that when a statute gives finality to the orders of a
special tribunal the civil courts' jurisdiction must be held to be impliedly
excluded in so far as the merits of the case are concerned even though there is
no express exclusion of the jurisdiction and that in such a case civil courts
have jurisdiction only to examine whether the provisions of the statute have
been complied with or the tribunal had or had not acted in conformity with the
fundamental principles of judicial procedure) In this case a suit was filed to challenge
a scheme of nationalization which was pending consideration under section 68-D
of the Motor Vehicles Act, 1939, and it was held that the suit was impliedly barred.[ccxliii]
But if the determination of the tribunal or authority is made final only for 'purposes
of the Act' which creates the special jurisdiction, the exclusion of civil courts'
jurisdiction will not be readily inferred even if the Act in addition to the
finality clause provides that the order of the tribunal shall not be questioned
in a court of law.[ccxliv]
Thus, if the object of the special Act is to serve the revenue purposes of the Government
and to facilitate revenue collection, decisions on incidental questions arrived
at in a summary manner for identifying and registering persons in the revenue records
from whom recovery of revenue is to be made, cannot bar the jurisdiction of civil
courts to entertain suits for protection of title and possession of a person
who has not been recognized as a ryot under the machinery of the Act.[ccxlv]
An exclusionary
clause in an Act which forbids a challenge to 'a determination or order made
under the Act' in a civil court contemplates cases of real determination or
order and does not protect a determination or order which is a nullity. So no
ouster clause can prevent challenge by a civil suit to an order or
determination which is a nullity.
09. CONCLUSION
Originally, though more powerful and available to the
common man than constitutional remedies, equitable remedies had played a great
role in bringing in their life the light of justice through equitable remedies.
However, when Indian Judiciary became more powerful by issuing writs frequently
and without delay, the comparatively complicated procedure in ordinary remedies
of Private Law Review made it unattractive. However, there are certain areas
where Judiciary reserves writs and allows ordinary remedies. In such areas the
importance of Private Law Review as explained above is greatly appreciated.
The reluctance of the Higher Judiciary to look into
facts, where administrative action is challenged, and the concept that remedy
is not a matter of right even where administrative action is found defective,
when combined with the notion of issuing prayed remedies to the aggrieved
parties only in grave violations of procedure, and the acceptance of the
discretionary power of administrative action and the denial of prayer on the
ground of expenditure of public moneys, very often compel the aggrieved party
to resort to Private Law Reviews.
If our courts could avoid inordinate delay in pronouncing
their final judgments in suits for injunctions, declarations, damages and other
remedies, administrative action may be challenged more easily, through
established ordinary legal procedure.
[i] http://www.businessdictionary.com/definition/administrative-law.html
[ii] AIR 1970 SC 150
[iii] (1610) 8 Co Rep 113 b: 77 ER 646
[iv] 1 Cranch
137: 2 L Ed 60 (1803)
[v] Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC
458
[vi] Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
[vii] Golak Nath v. State of Punjab AIR 1967 SC 1643
[viii]
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
[ix] Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
[x] Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (1983) 1
SCC 147
[xi] Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1
[xii] Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722
[xiii]
E.P. Royappa v. State of T.N. (1974) 4 SCC 3
[xiv] Maneka Gandhi v. Union of India (1978) 1 SCC 248
[xv] Council of Civil Service Unions v. Minister for the Civil
Service (1984) 3 WLR 1174: (1984) 3 All ER 935 (HL)
[xvii]
Chandrakumar v. Union of India (1997) 3 SCC 261
[xviii]
Chief
Constable of North Wales Police v. Evans (1982) 3 All ER 141 at Page 143
[xx] Tata
Cellular v. Union of India (1994) 6 SCC 651 pp. 687-88, para 94
[xxi] London County
Council v. Attorney General 1902 AC 165 (HL)
[xxii]
White and
Collins v. Minister of Health (1939) 2 KB 838 : (1939) 3 All ER 548
(CA)
[xxiii]
Anirudhsinhji
Karansinhji Jadeja v. State of Gujarat (1995) 5 SCC 302 : 1995 SCC
(Cri) 902
[xxiv]
Bhavnagar
University v. Palitana Sugar Mill (P) Ltd. (2003) 2 SCC
111; Capt. Sube Singh v. Lt. Governor of Delhi (2004) 6 SCC 440
[xxv] Liversidge v. Anderson
1942 AC 206 : (1941) 3 All ER 338 (HL)
[xxvi]
Clariant
International Ltd. v. SEBI, (2004) 8 SCC 524
[xxvii]
See Teri Oat
Estates (P) Ltd. v. Union Territory, Chandigarh (2004) 2 SCC 130, Union
of India v. Rajesh P.U. (2003) 7 SCC 285: 2003 SCC (L&S)
1048 etc
[xxviii]
State of
Punjab v. Nestle India Ltd. (2004) 6 SCC 465
[xxix]
Union of
India v. International Trading Co. (2003) 5 SCC 437
[xxx] Associated
Provincial Picture Houses Ltd. v. Wednesbury Corpn (1947) 2 All ER
680 : (1948) 1 KB 223 (CA)
[xxxi]
Dy. Director of
Consolidation v. Deen Bandhu Rai (1964) 4 SCR 560 : AIR 1965 SC 484
[xxxiii]
Maneka
Gandhi v. Union of India (1978) 1 SCC 248
[xxxiv]
Shalini
Soni v. Union of India (1980) 4 SCC 544 : 1981 SCC (Cri) 38
[xxxv]
Rohtas
Industries v. S.D. Agarwal (1969) 1 SCC 325
[xxxvi]
Council of Civil
Service Unions v. Minister for the Civil Service 1985 AC 374 : (1984)
3 All ER 935 (HL) p. 951 a-b
[xxxvii]
Gazi
Saduddin v. State of Maharashtra (2003) 7 SCC 330 : 2003 SCC (Cri)
1637
[xxxix]
R v Hillingdon LBC ex p Puhlhofer (1986) AC 484: (1986) UKHL 1:
(1986) 2 WLR 259: (1986) 1 All ER 467 (HL)
[xl] Bar Council of
India v. High Court of Kerala (2004) 6 SCC 311 (paras 49 and 50)
[xli] Union of
India v. Tulsiram Patel (1985) 3 SCC 398: 1985 SCC (L&S) 672
(para 101)
[xlii]
Chairman, Board of
Mining Examination v. Ramjee (1977) 2 SCC 256 : 1977 SCC (L&S)
226
[xliii]
Ridge v. Baldwin
1964 AC 40 : (1963) 2 All ER 66 (HL)
[xliv]
State of
Orissa v. Dr. Binapani Dei (1967) 2 SCR 625 : AIR 1967 SC 1269
[xlv] State of
Maharashtra v. Jalgaon Municipal Council (2003) 9 SCC 731
[xlvi]
Raghunath
Thakur v. State of Bihar (1989) 1 SCC 229
[xlvii]
State Govt.
Houseless Harijan Employees' Assn. v. State of Karnataka (2001) 1 SCC
610 (paras 27 to 30)
[xlviii]
H.C. Narayanappa v. State
of Mysore (1960) 3 SCR 742 : AIR 1960 SC 1073
[xlix]
S.N.
Mukherjee v. Union of India (1990) 4 SCC 594 : 1990 SCC (Cri) 669
[l] Union of
India v. Manu Dev Arya (2004) 5 SCC 232 : 2004 SCC (L&S) 769
[li] Union of
India v. Kannadapara Sanghatanegala Okkuta (2002) 10 SCC 226
[lii] State of
Karnataka v. Dr. Pravin Bhai Thogadia (2004) 4 SCC 684: 2004 SCC
(Cri) 1387; Rama Muthuramalingam v. Dy. Supdt. of Police AIR
2005 Mad 1
[liii]
Dwarkanath v. ITO
(1965) 3 SCR 536 : AIR 1966 SC 81
[liv] Air India
Statutory Corpn. v. United Labour Union (1997) 9 SCC 377 : 1997 SCC
(L&S) 1344; P.J. Irani v. State of Madras (1962) 2 SCR 169 :
AIR 1961 SC 1731
[lv] T.C.
Basappa v. T. Nagappa (1955) 1 SCR 250 : AIR 1954 SC 440
[lvi] S.
Selvarani v. Commr., Karaikudi Municipality (2005) 1 CTC 81
[lvii]
G.J.
Fernandez v. State of Mysore (1967) 3 SCR 636 : AIR 1967 SC
1753; J.R. Raghupathy v. State of A.P. (1988) 4 SCC 364
[lviii]
Union of
India v. Indo Afghan Agencies Ltd. (1968) 2 SCR 366 : AIR 1968 SC 718
[lix] Motilal Padampat
Sugar Mills Co. Ltd. v. State of U.P. (1979) 2 SCC 409
[lx] J.P.
Bansal v. State of Rajasthan (2003) 5 SCC 134: 2003 SCC (L&S)
605, paras 25 to 30
[lxi] Amarjit Singh
Ahluwalia (Dr.) v. State of Punjab (1975) 3 SCC 503 : 1975 SCC
(L&S) 27, para 8; B.N. Nagarajan v. State of Mysore (1966) 3
SCR 682 : AIR 1966 SC 1942; Sant Ram Sharma v. State of
Rajasthan (1968) 1 SCR 111 : AIR 1967 SC 1910
[lxii]
Ramana Dayaram
Shetty v. International Airport Authority of India (1979) 3 SCC 489,
para 10
[lxiii]
Mafatlal industries v. Union of India,
(1997) 5 SCC 536: (1996) II JT 283, earlier
discussed at page 489, Note 58
[lxv] Strachey v. Municipal Board, Cawnpore (1899) 21 ILR All 348; Lahore Municipality v. Munir-ud-Din AIR 1941 Lah 200; Administrator, City of Lahore
v. Abdul Majid (1945) ILR Lah 382
[lxvi]
Chandulal v Delhi Municipal Corporation AIR 1978 Del 174
[lxix]
Hindustan Petroleum Corporation Ltd. v. Sriman Narayan
(2002) 5 SCC 760: AIR 2002 SC 2598, paras 7 & 8 and 12
[lxx] Premier Automobiles Ltd. v. Kamleker Shantaram Wadke (1976) 1 SCC 496: AIR 1975 SC 2238, para 29
[lxxi]
Dorab Cawasji Warden v. Coomi Sarab Warden (1990) 2 SCC 117, paras 16, 17, 19 and 27: AIR 1990 SC
867
[lxxiii]
Krishna v. Anirudha Singh (2005) 12 SCC 389, para 3
[lxxiv]
Delhi Municipality v. Suresh Chandra AIR 1976 SC 2621:
(1976) 4 SCC 719
[lxxv]
Cotton Corporation of India
Ltd v. United Industrial Bank Ltd. (1983) 4 SCC 625: AIR 1983 SC 1272, para 11
[lxxvi]
Ramchandra v. Ram Rakhmal AIR 1971 Raj 292
[lxxvii]
See Delhi Municipality v. Suresh Chandra AIR 1976 SC 2621 : (1976) 4 SCC 719; Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995) 5 SCC 545:
AIR 1995 SC 2372, para 47; Premji Ratansey Shah v. Uniion of India (1994) 5 SCC 547, para 47 : (1994) 5 JT 585
[lxxviii]
D.B. Raval v. Patan Municipality (1967) ILR Guj 18. Also see Gotham Construction Co. Ltd v. Amulya Krishna AIR 1968 Cal 91
[lxxix]
Akola Municipality v. Shantarani AIR 1946 Nag 79;
Chalisgaon Municipality v. Laxminarayan Mills AIR 1956 Bom 646; Kamakyha Narain Singh v. Union of India AIR 1966 Pat 305; Boldeodas Bajoria v. U. P.
Governor AIR 1945 Cal 44
[lxxxi]
Eastern Tea Estate v. Silchar Municipality AIR 1967 Ass 1
[lxxxii]
Out of the cases mentioned in Note lxxix, only in two, Akola Municipality v. Shantarani AIR 1946 Nag 79 and
Boldeodas Bajoria v. U. P. Governor AIR 1945 Cal 44,
it was held that alternative legal remedy available should have been exhausted.
[lxxxiii]
AIR 1976 SC 888: (1976) 2 SCC 58. Also J. Tiwari v.
Jawala Devi Vidya Mandir AIR 1981 SC
1221: (1979) 4 SCC 160
[lxxxv]
Raja
Ram v. State of Uttar Pradesh AIR 1963 All 449; Kamakhya Narain
Singh v. Union of India AIR 1966 Pat 305
[lxxxvii]
Kamakhya
Narain Singh v. Union of India AIR 1966 Pat 305; Baldeodas
Bajoria v. U.P. Governor AIR 1945 Cal 44
[lxxxviii]
Bhagchand
v. Secretary of State AIR 1967 PC 176: Sawai Singhai v. Union of India AIR
1966 SC 1068: (1966) 1 SCR 986
[lxxxix]
See
the fourteenth Report of the Law Commission of India, Vol.
II, p. 691. The High Courts give precedence to disposal of writ
petitions over other work.
[xc] Bai Shri Vaktuba v. Thakore (1910) 34 ILR Bom 676
[xci] Fisher v. S.S. for India (1889) 26 IA 16; Krishna v. Mahabir AIR 1933 All 488; Subba Rao v. S.S. for
India AIR 30 Mad 349; Andhra University v. Lakshmi Manoharam (1951) 1 MLJ 518;
Sisir Kumar v. Manorama AIR 1972 Cal 283
[xcii]
Sheoparsan Singh v. Ramnandan Pd. AIR 1916 PC 73; Bai
Shri Vaktuba v. Thakore (1910) 34
ILR Bom 676; Fahimal Huq v. Jagat Ballav AIR
1923 Pat 475
[xciii]
Ramaraghava Reddy v. Seshu Reddy AIR 1967 SC 436: 1966
Supp SCR 270; S.G. Films Exchange v. Brijnath AIR 1975 SC 1810: (1975) 2 SCC
530; Ashok Kumar Shrivasthav v. National Insurance Company Ltd. AIR 1998 SC 2046: (1998) 4 SCC 361
[xciv]
Shanta Shamsher v. Kamani AIR 1959 Bom 201
[xcv] Sat Narain Gurlvale v. Hanuman Pd. AIR 1946 Lah 85
[xcvi]
Union of India v. Kedereswar AIR 1959 HP 32
[xcviii]
Mysore SRT Corporation v. Mirja Khasim AIR 1977 SC 747 at 754: (1977) 2 SCC 457; Vaish
Degree College, Shamli v. Lakshmi Narain AIR 1976 SC 888: (1976) 2 SCC 58
[xcix]
Ajudhia Nath Dowarka Nath v. Amar Nath Gupta AIR 1961
Punj 352
[ci] Ram Krishna v. Narayana (1916) 39 ILR Mad 80; Andhra University v.
Lakshmi (1951) 1 MLJ 518. Also see D.B. Raval v. Paton Municipality (1967) ILR
Guj 18; Surendra Nath I.A. Corporation AIR 1966 Cal 272
[ciii]
N.C. Malik v. Bhai Traders (1967) 1 ILR Punj 558
[cv] Mohd Yunus v. Syed Unnisa AIR 1961 SC 808: (1962) 1 SCR
67
[cvi] Ramsaran v. Gangadevi AIR 1972 SC 2685: (1973) 2 SCC 60,
Para 4
[cviii]
Deo Kuer v. Sheo Pd. AIR 1966 SC 359 (1965) 3 SCR 655. Also Gurdial Singh v. Sunda Hire Purchase Corp. AIR 1970 Pat 7
[cix] Compare Dr. Parmanand v. District Board AIR 1962 Pat 452 with G.S.
Dutta v. Union of India AIR 1966 J&K 124; and Fisher v. S.S. for India (1899)
26 IA 16 with Bhagat Singh v. Satnam
Transport Co. AIR 1961 Punj 268
[cxiii]
Budhu Singh v. Board of Revenue AIR 1957 All 7I9
[cxiv]
Mohd. Ismail v. Patna Municipality AIR 1943 Pat 34
[cxv] Mathewson v. Gordhan Tribedi (1900) 5 CWN 654; Paran v.
Parbulg (1878) 3 ILR Cal 612
[cxvi]
Bhairabendra v. State of Assam AIR 1953 Ass 162. Also Mulji Haridas v. Ibrahim Rahimtullath AIR
1932 Bom 166; Chotey Lal v. State of Uttar Pradesh AIR 1951 All 228
[cxvii]
R.T. Rangachari v. S.S. for India (1936) 64 IA 40. Also cf. Munni
Devi v. Gokal Chand 1969 (2) SCC 879
[cxviii]
Suwai Singhai v. Union of India AIR 1966 SC 1068; (1966)
1 SCR 968
[cxix]
Zamir, the declaratory judgment v. 1962
[cxxii]
Amalgamated Electricity Co. v. Municipal Committee, Ajmer
AIR 1969 SC 227: (1969) 1 SCR 430;
Public prosecutor v. R. Raju AIR 1972 SC 2504: (1972) 2 SCC 410; Trustees
of Bombay Port v. Premier Automobiles, AIR 1974 SC 923: (1974) 4 SCC 710
[cxxiv]
Basappa, supra, 656; S.I.
Syndicate v. Union of India AIR 1975 SC 460,
468: (1974) 2 SCC 630
[cxxvi]
Union of India v. J.K. Gas Plant AIR 1979 SC 1330. Here
the ouster clause barred the suit for "any damage" by anything done under the Act.
[cxxvii]
State of Madhya Pradesh v. Sunderlal AIR 1976 MP 175
[cxxix]
SLA Officer v. T. A. Setty AIR 1959 SC 429: 1959 Supp (1) SCR 404; State v. Alameluthayammal AIR 1970 Mad 184
[cxxx]
Kanakarathamma v. State of Andhra Pradesh AIR 1965 SC
304: (1964) 6 SCR 294; Md. Hasnuddin v. Maharashtra AIR 1979 SC 404: (1979) 2 SCC 572
[cxxxiv]
Gujarat v. C.M. Shah 1974 Cri. LJ 716 (Guj)
[cxxxv]
Madhya Pradesh v. Basant Kumar, Jabalpur, LJ 80 (1972)
[cxxxvi]
Public Prosecutor v. L. Ramayya 1975 Cri LJ 144 (FB)
[cxxxvii]
Sections 35, 37 and 38 of the Advocates Act
[cxxxviii]
Chandra Shekhar Soni v. Bar Council of
Rajasthan AIR 1983 SC 1012: (1983) 4 SCC 255
[cxxxix]
Chandra
Shekhar Soni vs Bar Council Of Rajasthan And Ors AIR 1983 SC 1012: 1983 (2)
SCALE 384: (1983) 4 SCC 255
[cxl] Chief Controlling Revenue Authority v. Maharashtra Sugar Mills AIR
1950 SC 218, 220: 1950 SCR 536
[cxli]
Banarsidas Ahluwalia v. Chief Controlling Authority AIR
1968 SC 497: (1968) 1 SCR 685; P.S. Aggarwal v. Collector of Stamps AIR 1974
Del 155
[cxlii]
Union of India v. Sarup Sing AIR 1968 Del 219
[cxliii]
Sardamal Ammal v. Chief Controlling Revenue Authority AIR 1960 Mad 21;
Sundaram Finance Pvt. Ltd. v. Board of Revenue AIR 1964 Mad 128; Union of
India v. Sarup Singh, AIR 1968 Del 219
[cxliv]
Union of India v. Sarup Sing, AIR 1968 Del 219
[cxlv]
Board of Revenue v. Saraya Sugar Factory AIR 1971 All 70
[cxlvi]
Nawaganj Super Mills v. I.T. Commr., Delhi AIR
1972 SC 1684: (1971) 3 SCC 676; C.I.T. v. Khoday Eswara AIR 1972 SC 132: (1971)
3 SCC 555
[cxlvii]
Karam Singh Thapar v. C.I.T. AIR 1971 SC 1590: (1972) 4
SCC 124; Karnani Properties Ltd. v. C.I.T. AIR 1972 SC 2315: (1971) 3 SCC 568;
C.I.T. v. A.l.D Co. AIR 1972 SC 445: (1972) SCC 447
[cxlviii]
Section 256 of the Income Tax Act, 1961 has been omitted
by National Tax Tribunal Act, 2005,
However, the date or enforcement of the
Act was not notified then.
[cli] See Order 41 of CPC. Mulla, Code or Civil Procedure. Vol.
II, p. 1554 (1967)
[clii]
Trustees’ Corporation (India) Ltd. v. C.I.T. AIR 1930 PC
151
[cliii]
Commissioner of Income Tax v. Scindia Steamship and
Navigation Co. AIR 1961 SC 1633: (1962) 1 SCR 788; E.I. Industries v. I.T.
Commissioner AIR 1967 SC 1554: (1967) 3 SCR 356; I.T. Commissioner West Bengal v.
Indian Molasses AIR 1970 SC 2067: (1970) 2 SCC 834
[cliv]
Commissioner of Income Tax v. Scindia Steamship and
Navigation Co. AIR 1961 SC 1633: (1962) 1 SCR 788
[clv] Petland Turkey Red Dye Works Co. Ltd. v. CIT AIR 1963 SC
1484: 1963 Supp (1) SCR 871; New Jahamgir Vakil Mills Ltd. v. CIT AIR 1959 SC
1177: (1960) 1 SCR 249
[clvi]
Kilosho Devi Burma v. CIT (1996) 7 SCC 613: AIR 1996 SC
3114, paras 8, 10
[clvii]
Union of India v. Addl. Member, Board of Revenue (1975)
36 STC 61 (Cal)
[clviii]
Mehta Parikh and Co. v. CIT AIR 1956 SC 554: 1956 SCR
626; Meenakshi Mills Ltd. v. CIT AIR 1957 SC 49: 1956 SCR 691; CIT v. H.S. Chakravarty
AIR 1975 SC 15
[clx] Raja Bahadur Kamakshya Narain Singh v. C.I.T. AIR 1971 SC
794: (1969) 3 SCC 791
[clxiii]
LAW COMM. OF INDIA, Twelfth Report (Income-tax Act, 1922) 48 (1958); REPORT OF THE
DIRECT TAXES ADMINISTRATION ENQUIRY COMMITTEE 80-81 (1958-59); INTERIM REPORT
OF THE DIRECT TAX LAWS COMMITTEE 44 (1977); S.N. Jain. The Customs and Excise
Appellate Tribunal, 28 IJPA 11 (1982)
[clxiv]
S. Bahadur v. CIT AIR 1972 SC 34: (1971) 3 SCC 364
[clxv]
Raja Bahadur Kamakshya Narain Singh v. CIT AIR 1971 SC
794: (1969) 3 SCC 791: (1970) 1 SCC 595
[clxvi]
Yusuf Jan Sahib v. I.T.O. AIR 1960 Ker 349
[clxvii]
S.P. Prashar v. Vasantsen Dwarkadas AIR 1956 Bom 530
[clxviii]
Hardeodas v. I.T.O. AIR 1960 Ass 162. Also T.A. George v.
Agricultural I.T.O., 1984 TLR 514
[clxix]
See Jyoti Prasad v. l.T.O. AIR 1959 All 456 (where the
income tax officer first taxed an association and then he sought to illegally
tax the members thereof totally disregarding the statutory provision); Ramiza Bi
Saheba v. Income-tax Officer AIR 1960 Mad 357 (where the income of the minor
partner was included in the income of the mother who was also a partner in the
firm completely contrary to the statutory provision.)
[clxx]
Raza Textiles Ltd. Rampur v. I.TO. AIR 1973 SC 1362:
(1973) 1 SCC 633
[clxxi]
See for instance, Elbridge Watson v. R.K. Das. AIR 1951
Cal 430: Padmanabha v. CIT AIR 1953 TC 296
[clxxii]
Raja Jagdambika Pratap Narain Singh v. Central Board of
Direct Taxes (1975) 4 SCC 578: AIR 1975 SC 1816, paras 13 & 14
[clxxiii]
Trade Tax Officer v. Royal Trading Company (2005) 11 SCC
518, para 1
[clxxv]
Krishna Gopal v. Dattatraya AIR 1972 MP 125; cj.
Rajasthan State Road Transport Corp. v. Kalawati AIR 1977 Raj 236. In Bal Gopal
Das v. Mohan Singh AIR 1964 All 504, the tribunal under the Displaced Persons
(Debt Adjustment) Act, 1951, was held to be a court.
[clxxvi]
Sawatram Ramprashad Mills v. Vishnu Pandorang AIR 1950
Nag 14; H.C.D. Mathur v. E.I. Rly.
AIR 1950 All 80; General Manager,
Bhilai Steel Project v. Bhutani & Co. 1965 MPLJ (Notes) 73; cf. Rameshwar Lal v. Jogendra
Das AIR 1970 Ori 76
[clxxviii]
Abdul Rashid v. Hanuman Oil & Rice Mill AIR 1951
Ass 88; Mohanlal v. Fine Knitting
Mills Co. AIR 1960 Bom 387; Rajiyabi v. M.M. & Co. AIR 1970 Bom 278: Shaikh Amir v. Jarder Beg 1979 MPLJ (Notes) 68
[clxxx]
D.L.F. Housing Construction (P.) Ltd. v. Delhi Municipal
Corporation AIR 1976 SC 386: (1976) 3 SCC 160
[clxxxi]
D.R. Mills v. Commissioner of Civil Supplies AIR 1975 SC
2238 at 2243: (1976) 1 SCC 496
[clxxxii]
See Chapter XXIV. Government Contracts. Also, Har Shanker
v. Deputy E.&T. Commissioner AIR 1975 SC 1121, 1126: (1975) 1 SCC 737
[clxxxiii]
Gurudwara Prabandhak v. Shivrattandeo
AIR 1955 SC 576: 55 Punj 1108; Raichand v. Union of India AIR 1964 SC 1268:
1964 (5) SCR 148. The question of adequacy or sufficiency of remedies provided
in the Act is of great importance where exclusion is pleaded as a matter of
necessary implication; Kamala Mills v. State of Bombay, AIR 1965 SC 1942, p.
1950: (1966) 1 SCR 64; Pabbojan Tea Co. v. D.C., Lakhimpur AIR 1968 SC 271. p.
277: 1968 (1) SCR 260; Dhulabhai v. State of M.P. AIR 1969 SC 78: (1968) 3 SCR
662; Bata Shoe Co. Ltd. v. Jabalpur Corporation AIR 1977 SC 955, pp. 961, 962:
(1977) 2 SCC 256; Syed Mohammed Baquir EI Bdroos v. Slate of Gujarat
AIR 1981 SC 2016, p. 2019: (1981) 4 SCC 383; State of Andhra Pradesh v. Manjeti
Laxmi Kantha Rao, AIR 2000 SC 2220 p. 2221 : (2000) 3 SCC 689; Dhruv Green
Fields Ltd. v. Hukum Singh AIR 2002 SC 2841 p. 2844: (2002) 6 SCC 416.
In some cases a
statute may provide for a suit in a civil court only after the remedies under
the statute are exhausted; see for example State of Madras v. Melamatam AIR
1965 SC 1570, p. 1573: (1966) 2 MLJ (SC) 13; Babu Khan v. Nazim Khan AIR 2001
SC 1740, p. 1745: (2001) 5 SCC 375. The exclusion sometimes is for a limited
period within which recourse may be taken to the special remedy and after
expiry of that period civil suit can be filed: Mohd. Mahmood v. Tikaram Das AIR
1966 SC 210, pp. 211, 212: 1966 (1) SCR 128 as explained in Nand Kishore v. Ram Kishan AIR 1967 SC 1196, p. 1200: 1967(1) SCR 167
[clxxxiv]
Vedagiri Lakshmi Narasimha Swami Temple v. Pattabhirami
AIR 1967 SC 781, pp. 785, 786: (1967) 1 SCR 280
[clxxxvi]
United Bank of India v. Debt Recovery Tribunal JT 1999
(2) SC 574 pp. 578, 580: AIR 1999 SC 1381 p. 1385: (1999) 4 SCC 69 [section
2(g) of the Recovery of Debts due to Banks and Financial Institutions Act, 1993
which defines 'debt' construed to be of "the widest amplitude".)
[clxxxvii]
K.A. Abdul Jaleel v. T.A. Shahida (2003) 4 SCC 166 p,
170: AIR 2003 SC 2525 p. 2527. In explanation (c) to section7 of the Family
Courts Act, 1984 the words suit or proceeding between parties to a marriage
with respect to the property of the parties or either of them construed to
include disputes between divorced parties.
[clxxxviii]
Rajasthan State Road Transport
Corporation v. Poonam Pahwa AIR 1997 SC 2951, pp. 2958, 2959: 1997(6) SCC 100
[clxxxix]
Secretary of State v. Mask
& Co. AIR 1940 PC 105, p. 110; Emperor v.
Shibnath Banerjee AIR 1945 PC 156, p. 161; Bombay Province v. Harmusji AIR 1947 PC 200,
p. 203; Mohmmad Din v. Imamdin AIR 1948 PC 33, p. 34; Firm Radhakishan v.
Ludhiana Municipality AIR 1963 SC 1547, p. 1551: 1964 (2) SCR 273; Firm of
Illuri Subbayya Chetty & Sons v. State of A.P. AIR 1964 SC 322, pp. 324, 325: 1964
(1) SCR 752; Laxman v. Stare of Bombay AIR 1964 SC 436, p. 443; Desika Charyulu
v. State of A.P. AIR 1964 SC 806: (1964) 1 LLJ 9
[cxc] Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All ER 208:
(1969) 2 AC 147: (1969) 2 WLR 163 (HL); Union of India v. Tarachand Gupta & Bros. AIR 1971 SC
1558: (1971) 1 SCC 486; Bhupendra Singli v. G.K. Umath AIR 1970 MP 91, pp. 95,
98. See further title 2(b) cases of nullity, in Chapter 9: "Statutes
Affecting Jurisdiction of Courts", Principles of Statutory Interpretation
Justice G.P. Singh, 10th Edn. 2006
[cxci]
Ledgard v. Bull ILR 9 All 191, p 203 (PC); B.R. Reddy v. Addl.
Custodian of Evacuee Property AIR 1966 SC 1438: 1966 (3) SCR 214
[cxciv]
East Fremantle Corporation v. Annois (1900-03) All ER
Rep73: 1902 AC 213 (PC)
[cxcv]
East Fremantle Corporation v. Annois (1900-03) All ER Rep
73 at 76: 1902 AC 213 (PC)
[cxcvi]
HALSBURY'S Laws of England (3rd Edition), Vol. 30, pp.
686, 687. See further Gulf Oil Refining Ltd. (1981) 1 All ER 353 (HL); Wild
tree Holds Ltd. v. Harrow London Borough Council, (2000) 3 All ER 289 pp. 294,
295 (HL)
[cxcviii]
Gaekwar Sarkar of Baroda v. Gandhi Kachra Bai (1903) ILR
27 Bom 344 (PC); East Fremantle Corporation v. Annois (1900-03) All ER Rep 73
at 76: 1902 AC 213 (PC)
[cxcix]
Firm Radhakishan v. Ludhiana Municipality, AIR 1963 SC
1547, p. 1551: 1964 (2) SCR 273; referred to in Provincial Government of Madras
v. J.S. Basappa AIR 1964 SC 1873: 1964 (5) SCR 517
[cc] Firm Radhakishan v. Ludhiana Municipality AIR 1963 SC
1547, p. 1551: 1964 (2) SCR 273; referred to in Provincial Government of Madras
v. J.S. Basappa AIR 1964 SC 1873: 1964 (5) SCR 517
[cci] Poona City Municipal Corporation v. Dattatraya Nagesh
Deodhar AIR 1965 SC 555: 1964 (8) SCR 178
[ccii]
AIR 1965 SC 555 at 560: (1964) 8 SCR 178. Followed in
Firm Surajmal Ballshidhar v. Municipal
Board, Ganganagar AIR
1979 SC 246, p. 247: (1979) 1 SCC 303. Same principle applied in sustaining
suits for challenging dismissal of a municipal employee in violation of
mandatory provisions: Municipal Corporation v. Sri Niyamatullah (1970) 2 SCR 47: AIR 1971
SC 97; J.N. Ganatra v. Morvi Municipality AIR 1996 SC 2520:
1996 (9) SCC 495.
[cciii]
Bharat Kala Bhandar v. Dhamangaon Municipality AIR 1 966 SC 249:
(1965) 3 SCR 499. Followed in B.M. Lakhani v. Malkapur Municipality AIR 1970 SC
1002: (1970) 2 SCC 733
[cciv]
Kripal Singh v. Municipal Board, Ghaziabad AIR 1968 SC 1416: 1968 (3) SCR 551. See further Khurai Municipality v.
Dhannalal AIR 1968 SC 1458: 1969 (1) SCR 166; H.M.M. Ltd. v. Administrator
Bangalore City Corporation AIR 1990 SC 47, pp. 52, 53: 1989 (4) SCC 640, (non-compliance
with the rules regarding refund of octroi to give effect to statutory exemption
does not bar a suit for refund)
[ccv] Firm Radhakishan v. Ludhiana Municipality AIR 1963 SC
1547: (1964) 2 SCR 273
[ccvii]
Raleigh Investment Co. v. G.G. in Council AIR 1947 PC 78, p. 81: 17 IA 50: See further Commr. of Income-tax v.
Tribune Trust AIR 1948 PC 102. pp, 106, 107
[ccix]
Dhulabhai v. State of Madhya Pradesh AIR 1969 SC 78: 1968 (3) SCR 662. See further CIT v. Straw Products AIR
1966 SC 1113: 1966 (2) SCR 881 (Even the High Court in a reference and the
Supreme Court in appeal against the order passed in reference cannot decide the
question of the validity of the Taxing Act and a statutory order issued under
it). State of Tripura v. Province of East Bengal, AIR 1951 SC 23, p. 28: 1551
SCR 1; and State of Bombay v. Jagmohandas AIR 1966 SC 1412: 1966 (2) SCR 279;
(a suit to restrain an assessment on the ground that the Taxing Act is ultra
vires is not barred); West Bengal Electricity, Regulatory Commission v. CESC
Ltd. AIR 2002 SC 3588, p. 3603 (The High Court hearing an appeal under the
Electricity Regulatory Commission Act cannot decide the question of validity of
a Regulation made under the Act); Central Bank of India v. Vrajlal Kapurchand
Gandhi (2003) 6 SCC 573, p. 579 : AIR 2003 SC 3028 (It is settled position in
law that a court or tribunal constituted under a statute cannot adjudicate upon
the constitutional validity of the statute concerned)
[ccxii]
Kamala Mills Ltd. v. State of
Bombay AIR 1965 SC 1942: 1966 (1) SCR 64. In Provincial Govt. of Madras v. J.S.
Basappa, AIR 1964 SC 1873:
(1964) 5 SCR 517 where there was only a finality clause but no express bar to challenge all assessment a
similar suit was held to be maintainable. Provincial Govt. of Madras v. J.S. Basappa, AIR 1964 SC 1873:
(1964) 5 SCR 517 was disapproved in State of Kerala v. Ramaswami AIR 1966 SC
1738: (1966) 3 SCR 582, but the correctness of the disapproval was doubted in Dhulabhai v. State of M.P. AIR
1969 SC 78: 1968 (3) SCR 662
[ccxiii]
State of U.P. v. Yadavendra AIR 1966 SC 727, p. 731: 1966
(3) SCR 161
[ccxiv]
Mafatlal Industries Ltd. v. Union of India 1996 (9) Scale 457: JT 1996 (11) SC 283: 1997 (5) SCC 536
[ccxv]
Mafatlal
Industries Ltd. v. Union of India 1997(5) SCC 536: 1996(11) JT 283: 1996(9)
Scale 457: 1996(Sup10) SCR 585: 1997(89) ELT 247: 1998(111) STC 467: 1997(1)
Supreme 684. See further
Union of India v. Solar Pesticides Pvt. Ltd. AIR 2000 C 862: 2000 (2) SCC 705;
Commissioner of Central Excise v. Allied Photographic India Ltd. (2004) 4 SCC
34: AIR 2004 SC 2953
Proposition No. (iii) is in accord with the law of
European Communities as declared by the EEC Court which is referred in
Kleinwort Benson Ltd. v. Birmingham City Council, (1996) 4 All ER 733, p. 740:
(1997) QB 380: (1996) 3 WLR 1139 (CA)
[ccxvi]
CIT v. Parmeshwari Devi Sultania, JT 1998 (2) SC 413, p.
425: AIR 1998 SC 1276, pp. 1283, 1285: (1998) 3 SCC 481
[ccxvii]
CIT v. Parmeshwari Devi Sultania, JT 1998 (2) SC 413, p.
425: AIR 1998 SC 1276, pp. 1283, 1285: (1998) 3 SCC 481
[ccxviii]
Secur Industries Ltd. v. Godrej & Boyce Mfg. Co.
Ltd. (2004) 3 SCC 447 p.451 para 11: AIR 2004 SC 1766, p.1769 para 11
[ccxix]
State of Andhra Pradesh v. N. Venugopal (1964) 3 SCR 742:
AIR 1964 SC 33; S.P. Vaithianathan v. K. Shanmuganathan JT 1994 (2) SC 689, p.
693: AIR 1994 SC 1771: (1994) 4 SCC 569
[ccxx]
S.P. Vaithianathan v.
V.K. Shanmuganathan supra. But registering a false FIR may fall under s. 53
[ccxxi]
P.P. Unnikrishnan v. Puttiyottil Alikuty AIR 2000 SC
2952: (2000) 8 SCC 131. For construction of the words "under colour of
duty or authority' see, Sumerchand v. Union of India, AIR 1993 SC 2579 : (1994)
1 SCC 64; K.K. Patel v. Stale of Gujarat JT 2000 (7) SC 246: (2000) 6 SCC 195:
2001 SCC (Cri) 200
[ccxxii]
Collector of Kamrup v. Kamakhya Ram
AIR 1965 SC 1301, p. 1302: 1965 (1) SCR 265; Emporer v. Shibnath Banerji AIR
1945 PC 156, p. 161; Emperor v. Vimalabai Deshpande. AIR 1946 PC 123, p. 127:
1946 Nag 651; but see Bhagwat Prasad v. Secretary of State AIR 1940 PC 82.
p.85: 67 IA 197
[ccxxiii]
Anisminic Ltd. v. Foreign Compensation Commission (1969)
1 All ER 208 (HL); Rajendra Prakash
Sharma v. Gyan Chandra AIR 1980 SC 1206, pp. 1213, 1214: 1980 (3) SCR 207:
(1980) 4 SCC 364; Union of India v. Tarachand AIR 1971 SC 1558: 1971 (1) SCC
486; Ramsarup V. Shikharchand AIR 1966 SC 893, pp. 897- 898: (1966) 2 SCR 553;
Shivkumar Chadha v. Municipal Corporation, Delhi 1993 (3) SCC 161: (1993) 3 JT
238; Krishanlal v. State of Jammu & Kashmir JT 1994 (2) SC 619 pp. 622, 623: 1994 (4) SCC
422: 1994 SCC (L&S) 885; Dhruv Green Filed Ltd. v. Hukum Singh AIR 2002 SC
2841 p. 2844: (2002) 6 SCC 416; Bhupendra Singh v. G.K. Umath AIR 1970 MP 91,
pp. 95-98.
[ccxxiv]
Secretary of State v. Mask & Co. AIR 1940 PC 105, p. 110, as explained in Firm of
Illuri Subbayya Chetly & Sons v. State of AP AIR 1964 SC 322. p. 326: (1964) 1 SCR
752; which is further referred in Provincial Govt. of Madras v. J.S. Basappa AIR 1964
SC 1873, p. 1877: (1964) 5 SCR 517; Custodian of E.P. v. Jafran Begum AIR 1968
SC 169. p. 174: (1967) 3 SCR 736; Dhulabai v. State of MP AIR 1969 SC 78. p.
86: (1968) 3 SCR 662; Stale of Tamil Nadu v. Ramlinga Swamikal Madam (1985) 4
SCC 10, p. 17: AIR 1986 SC 794; Gurbax Singh v. Financial Commissioner AIR 1991
SC 435. p, 439: 1990 (4) JT 114: 1991 Supp (1) SCC 167
[ccxxv]
State of Rajasthan v. Union of India AIR 1977 SC 1361.
pp. 1390. 1391. 1401. 1414, 1415: (1977) 4 SCC 599. See further Somvanti v.
State of Punjab AIR I963 SC 151 p. 166: (1963) 2 SCR 774
[ccxxvi]
Mohammad Din v. Imamdin AIR 1948 PC 33: 74 IA 319
[ccxxvii]
Mohammad Din v. Imamdin AIR 1948 PC 33: p. 34 74 IA 319
[ccxxviii]
Mohammad Din v. Imamdin AIR 1948 PC 33: p. 34 74 IA 319
[ccxxix]
Bombay Province v. Hormusji AIR 1947 PC 200, p. 203: 74
IA 103
[ccxxx]
Ramrao v. Jankiram AIR 1963 SC 827: 1963 Supp (1) SCR 322
[ccxxxi]
Laxman v. State of Bombay AIR 1964 SC 436: (1964) 1 SCR
200. But see Bhujangrao v. Mulojirao AIR 1952 SC 138: 1952 SCR 402
[ccxxxii]
Smith v. East Elloe Rural District Council (1956) 1 All
ER 855, pp, 858, 859, 863,
870, 871: 1956 AC 736 (HL)
[ccxxxiii]
Somvanti v. State of Punjab AIR 1963 SC 151, p. 166:
(1963) 2 SCR 774
[ccxxxiv]
Anisminic Ltd. v. Foreign Compensation
Commission (1969) 1 All ER 208: (1969) 2 AC 147: (1969) 2 WLR 163 (HL). But in
R. v. Secretary for Environment, Ex parte, Ostler (1976) 3 All ER 90 (CA) it has been held that
East Elloe case was not overruled in Anicsminic’s case and is binding on Court
of Appeal. The distinguishing features pointed out are: (1) In East Elloe case the Court was permitted to have jurisdiction up to six
weeks and the ban operated after this period. In Anisminic case the
jurisdiction was ousted from the very beginning; and (2) In East Elloe case the
ban operated for challenging an administrative decision whereas in Anisminic
case the ban was for challenging a judicial decision of a tribunal. LORD
DENNING however, has extra judicially regretted his decision in Ostler's case.
He says that the mistake crept in as the judgment was not reserved and was
extempore (The discipline of law, p. 108) But Ostler case was followed in R. v.
Cornwall County Council, ex parte, Huntington (1994) 1 All ER 694 (CA)
[ccxxxv]
Anisminic Ltd. v. Foreign Compensation Commission (1969) 1 All ER 208, pp.
212, 237: (1969) 2 AC 147: (1969) 2 WLR 163 (HL); Arimunissa v. Deputy
Custodian, E.P. AIR 1961 SC 362, pp. 370, 371: (1961) 2 SCR 74; Bombay Housing
Board v. Karbhase Naik & Co. AIR 1975 SC7
63, pp. 768, 769: (1975) 1 SCC 341
[ccxxxvi]
Sundaramier v. State of A.P. AIR 1958 SC 468, p. 482:
1958 SCR 1422. Article 372A of the Constitution has been similarly construed;
Union of India v. Prem Kumar Jain AIR 1976 SC 1856, p. 1860: (1976) 3 SCC
743
[ccxxxvii]
Sundaramier v. State of A.P., AIR 1958 SC 468, p. 488:
1958 SCR 1422
[ccxxxviii]
State of Rajasthan v. Union of India AIR 1977 SC 1361,
pp. 1390, 1391, 1401, 1414, 1415: (1977) 4 SCC 599
[ccxxxix]
S.R. Bommai v. Union of India IT 1994 (2) SC 215: AIR
1994 SC 1918: (1994) 3 SCC 1. See Summary of the case in A.K. Kaul v. Union of
India 1995 (2) Scale 755, p, 764: AIR 1995 SC 1403, p. 1411: (1995) 4 SCC 73
[ccxl]
S.R. Bommai v. Union of India IT 1994 (2) SC 215: AIR
1994 SC 1918: (1994) 3 SCC 1. See Summary of the case in A.K. Kaul v. Union of
India 1995 (2) Scale 755, p, 764: AIR 1995 SC 1403, p. 1411: (1995) 4 SCC 73
[ccxli]
34. S.R. Bommai v. Union of India, JT
1994 (2) SC 215: AIR 1994 SC 1918: (1994) 3 SCC 1. See Summary of the case in
A.K. Kaul v. Union of India, 1995 (2) Scale 755, p. 764: AIR 1995 SC
1403, p. 1411: (1995) 4 SCC 73. For a discussion of the State of Rajasthan and
Bommai cases see Gopal Subramanium, Emergency Provisions under the Indian
Constitution, Supreme But Not Infallible (2000 Oxford University Press) pp. 147
to 150. In Rameshwar Prasad v. Union of lndia (2005) 7 SCC 625,
p. 626 decided on October 7, 2005, a Constitution Bench by majority opinion
held that the proclamation dated 23-5-2005 dissolving the Legislative Assembly
of Bihar was unconstitutional but the court declined to restore the Legislative
Assembly as it stood on the date of proclamation. This case and Bommai case
have been also discussed at p. 241 in Chap. 8. For comments on the Bihar case
see T.R. Andhyarujina, 'Unsettled out of court', Hindustan Times October 25,
2005.
[ccxlii]
Custodian of Evacuee Property v. Jafran Begum, AIR 1968 SC
169, pp. 172, 173: (1967) 3 SCR 736; M. Chayana v. K. Narayana, AIR 1979 SC
1320: (1979) 3 SCC 42; O. Chechulakshamma v. D. Subrahamanya (1980) 3 SCC 130:
AIR 1980 SC 133; Mohan Lal v. Kartar Singh, 1995 Supp (4) SCC 684: 1995 (6)
Scale 27, p. 35 (This will be so even if the tribunal is required to decide the
matter committed to its jurisdiction by a summary enquiry).
[ccxliii]
Anwar v. First Additional District Judge, Bulandshahar
(1986) 4 SCC 21: AIR 1986 SC 1785
[ccxliv]
State of Tamil Nadu v. Ramlinga Samigal
Madam (1985) 4 SCC 10, pp. 15, 21 to 23, 25: AIR
1986 SC 794
[ccxlv]
State of T.N. v. Ramlinga Samigal Marian (1985) 4 SCC 10:
AIR 1986 SC 794
