FACULTY OF JURIDICAL SCIENCES

Course : LLB , 5th Semester

UNIT I
 Definition, Nature and Scope of Administrative Law, Conceptual Objections to the
growth of administrative Law
 Rule of Law, Separation of Powers
 Administrative discretion: Meaning, Need, and Judicial Control

UNIT II:
 Legislative Power of Administration: Necessity, Merits and Demerits,
 Constitutionality of Delegated Legislation; Legislative and Judicial Control of delegated
 Legislation

UNIT III:
 Principles of Natural Justice and their Exceptions Rule against Bias, Concept of Fair
hearing
 Judicial review of administrative action through writs;
 Judicial control through suits for damages, injunction and declaration
 Administrative Tribunals: Need and reasons for their growth, characteristics, jurisdiction
and procedure of administrative Tribunals.

UNIT IV:
 Liability of the administration: Contractual liability, tortuous liability. Public
Undertakings, their necessity and Liabilities, governmental Control, Parliament Control,
Judicial Control
 Ombudsman: Lokpal and Lokayukta
 Right to information ACT, 2005 (S.1-S.20)
 Government Privilege to withhold evidence in public interest
Books
1. Wade, Administrative Law (VII Ed.) Indian Print, Universal
2. M.P.Jain, Principles of Adminstrative Law, Universal Delhi
3. I. P. Massey: Administrative law
.
LECTURE 36
Scope of The Doctrine of Utra- Vires In India

Historically, England's doctrine of the ultra-vires or excess of authority is the foundation of

judicial review. The ultravires doctrine is the fundamental tool for judicial supervision of

administrative authorities; as it has its implications through the length and breadth of

administrative law; it has been called the core rule of administrative law. As in England, so in

India, the doctrine of ultra-vires has reached a high degree of complexity, allowing the courts to

investigate not only acts that are clearly outside of jurisdiction, but the reasonableness, intentions

and validity of considerations.

The courts have exercised restrictions on different aspects of the discretionary powers.

Procedural errors are also considered to be jurisdictional if the procedural provision is as

distinguished from the directory as mandatory. In India, administrative actions are subject to

judicial review in cases of unlawfulness, irrationality or procedural impropriety. In condition

of A.P. v. Me Dowell & Co., while dealing with administrative actions and judicial review,
established that, in the case of administrative action, the scope of judicial review was limited to

three reasons:

1. Unreasonableness which is more appropriately called irrationality.

2. Unlawfulness.

3. Unfairness of action.

Consequently, judicial review of administrative action is only necessary when conduct suffers

from sin of arbitrariness, unreasonableness or injustice. If there are malafides, prejudice,

arbitrariness, bordering on perversity or such unreasonableness as no reasonable man can

conceive, it is appropriate to strike down an action. Therefore, the doctrine of ultra-vires is not

limited to cases of simple misuse of authority, but it also regulates abuse of power, as in

situations where something is done unjustifiably, for wrong reasons or through incorrect

procedures.

Therefore, the doctrine of ultra-vires is not limited to cases of simple misuse of authority, but it

also regulates abuse of power, as in situations where something is done unjustifiably, for wrong

reasons or through incorrect procedures. The ultra-vires doctrine is the principal instrument of

regulatory authority's judicial power. This covers all manner of regulatory acts done in excess of

authority. Also known as the principle of jurisdiction. However, in court of judicial review, it is

not sitting as an appeal court but merely reviewing the way the decision was made.

In Tata Cellular v. Union of India, the Supreme Court stipulated that judicial review is

concerned with reviewing not the merits of the decision but the decision-making process itself. If

an administrative decision is allowed to be reviewed, it will replace its own decision which could
be fallible by itself. The court's duty is to confine itself to the question of legality. The court's

duty is to confine itself to the issue of legality. The aim should be:

1. Whether the decision-making authority exceeds its power.

2. Committed an error of law.

3. Committed a breach of the rules of natural justice.

4. Reached a decision which no reasonable tribunal would have reached.

5. Abuse its power.

There is no desirability for untrammeled judicial review. Arbitrariness based on proportionality

theory is still without foundation. There is also no basis for not justifying the administrative

action on merit. Court must confine itself to the manner in which it made a decision or issued an

order. It is not about the merits of the decision at all.

Present Scenario in India over Administrative Actions

Judicial review is central in dealing with the malignancy in the exercise of power. However, in

the changed circumstances of socio-economic development in the country the Court is

emphasizing ‘self restraint'. Unless the administrative action is violative of law or the

Constitution or is arbitrary or mala fide, Courts should not interfere in administrative decisions.

Remedies of Judicial Review/ Public Interest Litigation

Here five types of writs are available for judicial review of administrative actions under Article

of , and Article of 226 of Constitution of India.

The writ literally means “Have the body― this writ is issue to secure the release of person

from illegal detention or without legal justification, its deals with person right of freedom. In

simple words Court direct the person and even authority who has detained individual to bring

such person before Court so that Court may decide the validity, justification, jurisdiction of such

detention. It is to be filed by any person.

Ground for the issue of this writ:

This writ is basically issued by the court when the person detained is not presented in front of the

magistrate within 24 hours of his/her detention. Failure to do so would entitle the arrested person

to be released.

In Gopalan v. Government of India, the Supreme Court ruled that the earliest date with reference

to which the legality of detention may be examined is the date on which the application for the

same is made to the court.

Writ invoked against:

Writ of habeas corpus can be invoked not only against the state but also against any individual

who is holding any person in unlawful custody or detention. In such circumstances, it is the duty

of the police to make necessary efforts to see that the detention is got released but, if despite such
efforts if a person is not found, the police cannot be put under undue pressure to do impossible.

2) Mandamus writ

It means that “To command the public authority― to perform its public duty in India. It is

discretionary remedy even as all five writs are discretionary remedy in nature. Court has full

power to refuse to entertain a writ petition. This writ is not lie on president, governor, state

legislatures, private individuals or any registered body.

Grounds for issuing this writ:

Mandamus can be issued when the Government denies to itself a jurisdiction which it

undoubtedly has under the law, or where an authority vested with a power improperly refuses to

exercise it. The function of mandamus is to keep the public authorities within the limits of their

jurisdiction while exercising public functions.

The writ can be issued against:

Mandamus can be issued to any kind of authority in respect of any type of function –

administrative, legislative, quasi-judicial, judicial Mandamus is used to enforce the performance

of public duties by public authorities. Mandamus is not issued when Government is under no

duty under the law.

It is ancient common law remedy. It is used against an intruder or usurper of public office.

Literally means “What is your authority―. Court directs the concerned person that by what

authority he holds the office. The Court may oust a person from the office if he finds that he is

not entitled to obtain such office.

Quo warranto prevents illegal usurpation of public office by an individual. The necessary

ingredients to be satisfied by the court before issuing a writ is that the office in question must be

public, created by the constitution or a law and the person holding the office is not legally

qualified to hold the office in clear infringements of provisions of the constitution or the law.

Writ issued against

It is the person against whom a writ of quo warranto is directed; who is required to show by what

authority the person is entitled to hold the office. While issuing such a writ, the High court

merely makes a public declaration of the illegality of the appointment and will not consider other

factors, which may be relevant for the issuance of a writ of certiorari.

4) Prohibition

Prohibition is an extraordinary prerogative writ of prevention; it seeks to prevent Courts,

Tribunals, Quasi-judicial authorities and officers from exceeding their jurisdiction. Main object

of this writ is to prevent the encroachment of jurisdiction. It is based upon “Prevention is

better than cure―.

A writ of prohibition is normally issued when inferior court or tribunal:

1. Proceeds to act without jurisdiction or in excess of jurisdiction

2. Proceeds to act in violation of rules of natural justice or

3. Proceeds to act under a law which is itself ultra vires or unconstitutional or

4. Proceeds to act in contravention of fundamental rights.

5) Certiorari
It deals with a method to bring the record of subordinate Court before the superior Court for
correction of jurisdiction or error of law committed by them. In simple word if any inferior Court
decided the case beyond its powers than Apex Court and High Courts correct the error by issuing
this writ. Earlier it was used for criminal matters but later on it was started to use in civil cases
too.
MCQs
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1. . which of the section of right to a) supervisory
information act was chanlenged
b) penal
under Namit sharma v union of India
c) adjudicatory
a) 12(5) and 12(6)
d) all of the above
b) 15(5) and 15(6)
4. Who is the First Law Officer of the
c) both A and B
Government of India?
d ) none of the above
a) Chief Justice of India
2. legislative competence of central
b) Law Secretary
government for enacting the right to
information act 2005 can be found in c) Solicitor – General of India
entry number ………..in the union
d) Attorney – General of India
list

5. Which is the oldest known system

c)95
a) Ombudsman System
d)97 b) Lokpal
c) Lokayukta
3. which of the following functions are
d) None of the above
carried out by the information
commission ?